Blanchard v. Savannah River Lumber Co. ( 1929 )

Stephens, J.

H. A. Blanchard’s claim for compensation was denied by the industrial commission, and the judgment of the commission was affirmed by the judge of the superior court. It appears, from the evidence, that Blanchard, while in the employ of the Savannah Eiver Lumber Companjr, some time about the first part of June, 1927, received an injury from a loose board which flew up and struck his foot after the board had been stepped upon by another person. It also appears from the evidence that about August, 1926, Blanchard received a sprain in the same foot. It also appears, from the evidence, that after the injury to the foot as a result of its coming in contact with the board in June, 1927, a tubercular condition in the bone of the foot was discovered. It also appears that prior to the injury to his foot in 1926 he suffered from a tubercular condition- in his lungs. One physician who had treated him for the 1927 injury testified that in his opinion the tubercular condition of the foot was caused from the injury sustained by the foot’s coming in contact with the board in 1927; giving as his reason therefor that the injury caused by the board was more likely to bring about the tubercular condition than the sprain of the loot. This was merely the opiuion of the witness. There was other testimony by physicians who liad examined Blanchard, and of a physician who had examined an x-ray of his foot. None of them testified as to any causal relation between Blanchard’s trouble and either of the injuries to his foot, but they agreed that the trouble was tubercular, and some of them testified that such a condition could have set in rapidly, and that it usually follows an injury or trauma or blow on the bone. One physician testified that the tubercular condition of the foot could have been, as he expressed it, “lighted up” by the injury which caused the sprain of the'foot in 1926. This physician was the only one of the testifying physicians who had treated Blanchard for the sprained condition of his foot in 1926. He treated him also after the injury to his foot in June 1927. This physician testified that when Blanchard came to him for treatment to his foot, which was during the latter part of July, 1927, Blanchard stated that he had “come back with that old foot,” and that it was still bothering him; that Blanchard made no reference to any injury to his foot in 1927. Blanchard himself testified: “I told him I was back with that old foot, that I hurt it again.” The evidence shows that Blanchard continued at work from the date of the injury to his foot, which was the first part of June, 1927, until July 2, when he left work to take a vacation, that his foot hurt during the vacation period, that he returned to work on July 18, and that on July 23 he consulted a physician. It was not until this later date, more than thirty days after the injury, that the first report of the injury was made to the employer. No claim for compensation arising out of the injury in 1926 was ever filed.

The burden was upon the plaintiff to establish his right to compensation by showing that his present condition arose “naturally and unavoidably from the accident” of 1927, as provided in section 2 (d) of the workmen’s compensation act. (Ga. L. 1920, p. 167, as amended, Ga. L. 1922, pp. 185, 188). This burden he does not carry by undisputed and unconflicting evidence, as he must do in order to set aside the award of the industrial commission, or by evidence from which the inference can be drawn that his present condition resulted naturally and unavoidably from the accident of 1927. See in this connection Bell v. State Life Insurance Co., 24 Ga. App. 497 (5b) (101 S. E. 541). After a consideration of the evidence the full commission held that “the relationship between the accident [meaning the accident from the board in 1927] and the present condition is not sufficiently close to conclude that the present condition resulted naturally and unavoidably from the accident.” Since the workmen’s compensation act, in section 59, provides that awards of the industrial commission “shall be conclusive and binding as to all questions of fact,” the finding of the commission, which is supported by evidence, that the claimant is not entitled to compensation, because his present condition did not result naturally and unavoidably from the accident, must be taken as conclusive of the facts. Any right to compensation arising out of the injury of 1926 is barred, since no claim for such compensation was ever filed within a year after the injury. Section 25 of the workmen’s compensation act. It follows therefore that, upon an appeal to the superior court, which was based solely upon the ground that the finding of the industrial commission was without evidence to support it and contrary to law, the judge of the superior court did not err in affirming the award of the industrial commission.

Since, as was held in the case of Maryland Casualty Co. v. England, 160 Ga. 810 (129 S. E. 75), the judge of the superior court, in passing upon an appeal from an award of the industrial commission, has no discretionary power to set aside the award, there is no merit in the grounds of the exception that the judgment of the superior court affirming the award should be set aside upon the ground that it appears from his order that, while he affirmed the award solely upon the ground that there was some evidence to support it, he was nevertheless of the opinion that the claimant was justly entitled to compensation, and that he hoped that his judgment affirming the award would be reversed by the Court of Appeals.

As there was evidence to support the award, we must affirm the judgment of the superior court affirming the award.

Judgment affirmed.

Bell, J., concurs. Jenkins, P. J., concurs specially.