Zurich Ins. Co. v. Robinson
| Decision Date | 06 September 1972 |
| Docket Number | Nos. 47264,No. 3,47265,s. 47264,3 |
| Citation | 127 Ga.App. 113,192 S.E.2d 533 |
| Parties | ZURICH INSURANCE COMPANY et al. v. Robert L. ROBINSON. Robert L. ROBINSON v. ZURICH INSURANCE COMPANY et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Where there has been a reversal of a workmen's compensation award and remand for further proceedings, the full board is authorized at its discretion to take additional evidence in connection with a petition based upon a change in condition. Cameron v. American Can Company, 120 Ga.App. 236, 170 S.E.2d 267.
2. Upon review of an award made by the State Board of Workmen's Compensation the superior court has only the authority to affirm, reverse or in some cases remand to the board and lacks the authority to give direction as to what the board should find as fact or conclude from the evidence before it.
3. The right to compensation for specific body member disability under Code Ann. § 114-406 is based solely upon the loss of function of the member itself and not upon permanent industrial handicap.
4. It is not error for the Workmen's Compensation Board to allow the record to remain open for the purpose of receiving a deposition of medical testimony.
5. The presumption that public officers have acted in compliance with the law applies to awards made by the State Board of Workmen's Compensation.
6. Questions not raised before the Workmen's Compensation Board cannot be raised for the first time upon appeal to the superior court. The proper procedure for contending failure to consider a deposition is to move before the board to re-open the award for the purpose of having a deposition considered.
Smith, Cohen, Ringel, Kohler, Martin & Lowe, Williston C. White, Atlanta, for appellants.
Robert T. Efurd, Jr., Atlanta, for appellee.
This workmen's compensation case was here previously in Zurich Insurance Co. v. Robinson, 123 Ga.App. 582, 181 S.E.2d 923. Its origination is upon the employee's application based on change of condition under Code Ann. § 114-709. At that time compensation was being paid claimant (as he will hereafter be referred to as this is the term used by his attorney) on a 15% loss of use of the leg resulting from a knee injury. After hearing evidence the board ruled as stated in our opinion on the previous appeal at page 582, 181 S.E.2d at page 924 that
In that first appeal the superior court determined the board was in error in its conclusion of law that it could not decide the case without some expert medical testimony and remanded the case to the board. The Court of Appeals affirmed that ruling of the superior court, holding at page 583, 181 S.E.2d at page 924 that
After return of the case to the board the employer and its insurer requested permission to secure the testimony of a medical expert should the board desire it. Claimant objected, taking the position that the record had been closed and that the board must make its decision based upon the record as it initially existed as of the time of the first appeal. The board nevertheless set a hearing before a deputy director for the purpose of taking 'additional medical evidence on behalf of the full board' and, in addition, responded to claimant's objection, stating, 'While we agree that it is not mandatory that the board have before it medical testimony as to the extent of disability, in this case which is based upon a change in condition upon the claimant's motion, testimony in the record at this time is insufficient for the board to arrive at a determination of the extent of the change in condition claimed by the claimant.'
The hearing was held. Claimant testified again. Over claimant's objections the record was held open for the purpose of allowing a medical examination of claimant and deposition testimony of the doctors to be submitted. The employer and its insurer submitted the deposition of Dr. Warner Wood. Claimant, preserving his objections, submitted the deposition of Dr. Calvin Sandison.
The board thereafter entered its findings and award to the effect that there was no change in claimant's condition. Claimant again appealed to the superior court. The superior court entered an order to remand with directions. Both parties have taken appeals from this order with enumerations of error by each which we will consider hereafter. Held:
1. The central issue made by the main appeal, the cross appeal and the briefs can be stated as follows: Where the Court of Appeals in affirming the superior court has stated that the Board of Workmen's Compensation may not decline to rule due to the absence of medical testimony in a change of condition case, is the board in undertaking to make a ruling pursuant to such remand limited to a decision on the record as it first stood prior to remand or may the board open the record for the purpose of receiving additional evidence it believes pertinent to the decision to be made as to the claim of change of condition?
We start with the clarification that this court on the prior appeal did not rule such action would be improper on remand. In the first appeal the board had said it could not determine the case without expert medical testimony. We held, as the superior court had also then ruled, that the board must make a determination; it cannot decline to decide merely because there is an absence of expert testimony.
There having been a reversal and remand for further proceedings the case once again became one pending for disposition before the full board. As such the board was authorized to proceed in accordance with Code Ann. § 114-708, which provides: 'All of the members may remand to a single director any case before them for review for the purpose of taking additional evidence; said evidence shall be delivered to all of the members and it shall be taken into account before rendering any decision or award in such case.' Whether it will do so is a matter discretionary with the board. Cameron v. American Can Co., 120 Ga.App. 236(1), 170 S.E.2d 267. It is true that once a finding of fact and an award of the full board has been entered, the record can not be reopened for the taking of additional evidence except upon change of condition, fraud, or newly discovered evidence. Howard v. Murdock, 83 Ga.App. 536, 538, 64 S.E.2d 221; Ideal Mutual Ins. Co. v. Ray, 94 Ga.App. 785, 788, 96 S.E.2d 377. In the present case there was no 'award' in existence when the additional testimony was sought; the finding of no change of condition had been erased because of the erroneous theory applied in making its decision that medical testimony has to be presented. We therefore conclude that it became discretionary with the board to seek medical evidence. Cf. Hartford Accident & Indemnity Co. v. Cox, 191 Ga. 143, 11 S.E.2d 661; St. Paul Fire etc. Ins. Co. v. Horton, 103 Ga.App. 171, 118 S.E.2d 597; American Mutual etc. Ins. Co. v. Gore, 95 Ga.App. 885, 99 S.E.2d 238; Chambers v. Powell, 126 Ga.App. 393, 190 S.E.2d 823; Hartford Accident & Indemnity Co. v. Snyder, 126 Ga.App. 31, 189 S.E.2d 919.
2. In connection with claimant's enumeration of errors on the cross appeal he argues that the 'first record' required a finding and award of 100% disability based on the claimant's testimony concomitant with the presumption codified as Code § 38-119 arising from the failure of an adversary to produce rebuttal evidence. He contends the superior court erred in not going far enough in the remand order. We understand the contention to be that the superior court should have remanded to the board with direction that a 100% disability award be entered.
First, as pointed out in Division 1, the reversal and remand by the superior court was erroneous. In any event a superior court is without authority to give direction as to what the board should find as fact or conclude from the evidence before it. ...
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