Carroll v. Hartford Accident & Indemnity Co. , 73 Ga. App. 799 ( 1946 )

The evidence authorized a finding by the State Board of Workmen's Compensation that the claimant had received only an aggravation of osteoarthritis; that since the date of such injury the aggravation had ceased; and that his present disability was not caused by the accident as contended, but was due to a disease which antedated the injury.

DECIDED MAY 7, 1946. The claimant, Marshall M. Carroll, was paid compensation for a period of time by the insurance carrier, when the doctor pronounced him cured from any injury. The entering into of agreements and payment of compensation waives all defenses and issues, after which all that remains to be determined by the State board of workmen's compensation is whether or not there has been a change in condition. The question before the board was only this issue. After hearing the evidence the single director ruled that the claimant had recovered from any injury that he may have received at work, and his award was dated April 24, 1945. The claimant appealed to the full board for a review of the decision of the single director, which that body affirmed on May 22, 1945. The matter was then appealed to Cobb superior court, and after hearing argument of counsel, the judge affirmed the findings of the board on September 28, 1945. The claimant excepts to that judgment.

On May 13, 1944, while at work at Bell Aircraft Corporation, a motor scooter struck the claimant on the back of his legs, and he fell on top of the scooter. The scooter was not going fast and the operator was able to stop immediately after he struck the claimant. The claimant was thrown back onto the scooter and injured his back, but did not fall to the floor. He was carried to the first-aid station and later carried home in an ambulance. The next day an ambulance was sent to the house of the claimant and brought him back to the hospital at Bell Aircraft Corporation. The accident in question arose out of and in the course of his employment. He was receiving a weekly wage in excess of $40. Agreements were entered into by the parties for the payment of compensation, and the State Board of Workmen's Compensation directed that the claimant be paid at the rate of $20 per week for his disability. Thereafter, on the 12th day of February, 1945, the employer and its insurance carrier asked for and obtained another hearing on account of a change in condition of the claimant.

Upon each hearing Dr. Askew testified for the insurance carrier that the claimant had arthritis at the time of the accident in question; that the accident aggravated the claimant's arthritis; and that: "Q. Now, I want you to tell this director, granting that this man having not worked a day since, still totally disabled, that he is wearing a brace as ordered by the company doctors, and using a stick, I want you to tell the director when the aggravation ceased, please, sir? A. I would think that an injury of the severity that he had, the arthritis that he had, would cause a very long period of aggravation, much longer than it would an ordinary person, probably six to eight months, maybe ten months. That would be the very maximum. I think that three to four months, possibly six to eight months maximum. Q. Now, doctor, he has never gotten well, has he? A. He would not have gotten well if he had never had an accident; he was already a sick man; no, sir, you can't expect him to get well because he was already a sick man. Q. Then, this accident caused it to flare up, didn't it? A. Yes. Q. It caused it to flare up, and that flare-up has not ceased until this date? A. Well, I think with — I think that what aggravation he had would have ceased by this time. Q. I know, but flare-up? A. Flare-up. Q. The thing that started this arthritis and put it in action is still active, isn't it? A. I can answer that best, Mr. Carter, by saying the arthritis existed before the accident, so the factor which was stimulating the arthritis could be stimulating — stimulating the condition which he now has, and therefore I don't think and don't believe any one else thinks that the arthritis condition he now has is a result of the original stimulant, or rather, the accident he had. Now, I will grant that the accident naturally would aggravate the condition, but I am also absolutely conscientious in saying that I think any aggravation would certainly not be more than seven to eight months. Q. Can you say it has ceased as long as the man is still unable to work? A. I can in my own mind and conscientiously think that, from the degree of injury which he had, he should not have had an aggravation more than six to eight months. Q. He should not, but has he? A. I think he has. Q. Is he still disabled? A. His disability would have existed if he never had had an accident. Q. You think it would have existed? A. Yes, sir. Q. Will you tell the director when it would have existed? A. I believe he would have been disabled at the present time if he had not had an accident. Q. You mean to tell the director that after he gave a history that since he was a child he has never had a doctor? A. I have not heard him say that. Q. But granting that he had? A. I still think — I see people in my office for physical examination that will tell me they never had a disability, and yet they would, in my mind have a total disability; I see them almost daily. I saw a person yesterday with a pressure of 240 who said they had never been sick a day in their life, 240 over 160. . . Q. There is nothing unusual for that [arthritis] to follow an injury? A. Yes, arthritis in some cases follows an injury when the injury is to a joint. However I might qualify and say arthritis of the sort he has could not be caused by an injury that is eight months old; that is an impossibility. Q. Doctor, I will ask you one more question, and then I am through. But if this man had that arthritis, and he had this injury, and you admit that this injury did cause that arthritis to flare up, and he has still got that arthritis, how are you going to say when the aggravation ceased? A. It would be purely a medical opinion."

To the extent to which their medical opinions as specialists went, the opinions of Doctors Fincher and Goodwin corroborated the testimony of Dr. Askew. Dr. Copeloff testified for the claimant that the aggravation had not ceased or cleared up and that the claimant was permanently disabled. Both Dr. Askew and Dr. Copeloff stated that in their medical opinions the claimant had been suffering from osteoarthritis for a period of from 7 to 10 years. "``The opinion of an expert witness is not conclusive upon a jury. Such testimony is intended to aid them in coming to a correct conclusion upon the subject; but the jury is not bound by such opinion, and can disregard it. The jury may deal with such testimony as they see fit, giving credence to it or not.' Manley v. State, 166 Ga. 563, 566 (19) (144 S.E. 170); Liberty Mutual Insurance Co. v. Williams, 44 Ga. App. 452 (161 S.E. 853)." Ocean Accident Guaranty Corp. v.Lane, 64 Ga. App. 149 (12 S.E.2d 413); Rouse v. State,135 Ga. 227 (69 S.E. 180). "Where a diseased condition of an applicant for compensation, which existed at the time of the injury, is aggravated or caused to ``flare up' as a result of the injury, and produces a disability which otherwise might not have existed as a result of the injury, the incapacity is caused by the injury, and where the accident arises out of and in the course of the employment, compensation will not be denied upon the ground that the disability is a result of the disease."Pruitt v. Ocean Accident c. Corp., 48 Ga. App. 730 (3) (173 S.E. 238); Horovitz on Workmen's Compensation, p. 285. The workmen's compensation act does not provide for general insurance or for general accident insurance. It covers neither accidents sustained nor diseases contracted by an employee outside of his employment. Lumbermen's Mutual Casualty Co. v. Griggs,190 Ga. 277, 289 (9 S.E.2d 84); Tweten v. North Dakota Workmen's Comp. Bureau, 69 N.D. 369 (287 N.W. 304).

Here the testimony of the physicians was conflicting. Dr. Rufus A. Askew testified on behalf of the employer and the insurance company. Dr. M. E. Copeloff testified on behalf of the claimant. The medical opinion of Dr. Askew, after an examination of the claimant, was to the effect that whatever increased portion of the claimant's disability was caused by the accidental injury had ceased. Both Drs. Askew and Copeloff gave opinions which were diametrically in opposition; the expert opinion of Dr. Askew being that the aggravation had ceased, and the expert opinion of Dr. Copeloff being that the aggravation had not ceased. Dr. Fincher and Dr. Goodwin, specialists, made examinations of the claimant and stated their opinions of those phases of the case which came within the range of the particular branches of the medical profession in which they specialized, and their expert opinions of those phases of the case supported the opinion of Dr. Askew. The claimant testified in his own behalf that he was still suffering much pain, was wearing a brace, and was unable to work. Thus it appears that the testimony was conflicting, but the evidence authorized a finding by the State board of workmen's compensation that the claimant had received only an aggravation of osteoarthritis; that since the date of such injury the aggravation had ceased; and that his present condition was not caused by the accident, as contended.Thompson v. Atlanta, 66 Ga. App. 255 (17 S.E.2d 761);U.S. Casualty Co. v. Matthews, 35 Ga. App. 526 (133 S.E. 875). The superior court did not err in denying the appeal of the claimant from the award of the State Board of Workmen's Compensation.

Judgment affirmed. Broyles, C. J., and Gardner, J., concur.