American Mutual Liability Insurance v. Jenkins , 63 Ga. App. 777 ( 1940 )

Upon review by the Industrial Board of an award of a director or deputy director thereof, as provided in the Code, § 114-708, the board is a fact-finding body, and may render an award approving or disapproving the award of the deputy director, which is binding on the courts where supported by any competent evidence. The award by the board was supported by competent evidence. It was error for the superior court on appeal to set aside such award.

DECIDED NOVEMBER 29, 1940. On November 1, 1938, Elizabeth Jenkins filed with the Industrial Board a claim against the Independent Laundry Company, employer, and the American Mutual Liability Insurance Company, insurance carrier, for compensation under the Georgia workmen's compensation law. The claimant alleged that on April 20, 1932, the board had reversed an award of compensation to her, and had ruled that "if at any time in the future there is any change in the status of the employer and employee, resulting in a decrease of pay as a result of disability from this injury, the case will be reopened;" that the claimant "is no longer with her employer, because she is unable to do the work required of her;" and that therefore the claimant is now entitled to an award of compensation. On February 7, 1939, this claim was heard before Director Land. It was admitted by counsel for the employer and the insurance carrier that on July 30, 1930, the claimant sustained an accident while employed by the laundry company, as a result of throwing a bundle of clothes into a bin two or three feet above her head; that her wages were then $18 a week; that an agreement was entered into and compensation paid to her for four and one third weeks; and that she returned to work September 8, 1930, at the same weekly wages, and no further compensation has been paid to her. It was contended by the employer that the board had previously ruled in the matter that so long as a claimant "was making the regular wage, there could not be an award in her favor;" and it was contended by the claimant that she was now entitled to compensation because "she has a disability and has no job." It appeared from the evidence that the claimant did not work at her employment with the laundry company for three months and twenty days beginning January 16, 1935, for five days beginning November 11, 1935, for one month and twenty days beginning March 6, 1937, for eight months and four days beginning October 15, 1937; and that beginning September 22, 1938, to the date of the hearing, February 7, 1939, the claimant had not worked.

The claimant testified at this hearing, that she was unable to work during the above periods, because of the injury received by her in 1930; that she was not able to go on with the job; that she was not able to work at the time of the hearing; that she is not able to do any other work of any consequence; that she did not know any kind of work to do; that until 1932 she had been employed in the same kind of work for ten years; and that since April 20, 1932, she had been married. She further testified, as to her condition with reference to the injury, that every day when she first arises in the morning there is a sore spot about the size of a quarter or half dollar, and it feels like a hard scab, and when she begins putting on her shoes she can feel it cracking and give, and that it is continually sore from then on; that it is located on the left side near the navel, and that during the time she was working since April 20, 1932, she has worked in pain. On cross-examination she testified, that she could still do the kind of work she was doing in April and October, 1937, and July to September, 1938, which was during the white-suit season of the laundry company, but that she would be in pain as she worked; that if the company still has a job for her next summer she intends doing the work if she can hold out; that it is her present purpose to ask for the work; that, as to housework, her husband does the heavy work on Sunday, and she does the light work during the week; that she feels like she is fifty per cent. disabled, as she can not hold out long at the work, and can do only light work; that she could not do any lifting of anything heavy, and could not place her hands behind her head; that the place in her stomach is sore like it has been all the time; that it has been sore since the day of the accident, and that it was sore in 1932, and is sore now.

The manager of the laundry company testified, that the claimant has never been as good at work for the company as she was before the accident in 1930; that she is less valuable to the company than a person not in her condition; that the company can not use her as it previously could; that it used her during the summer season when it had light work; and that the company might probably continue to use her in the same kind of light work which she is able to do satisfactorily. Dr. Ross testified, that the claimant is not wholly able to work at the present time, being about fifty to seventy five per cent. disabled; and that in 1932 he testified before the Industrial Board that the claimant's condition, which was about a fifty per cent. disability, would likely remain permanent. Dr. Massenberg testified for the employer, that he had recently examined the claimant; that she complained of a soreness and pulling sensation around her navel; and that her condition is substantially the same as it was when he examined her before the hearing in 1932. Dr. Jelks testified, that the claimant had a strain of the abdomen that had left some adhesions; that her condition was about the same as it was when he examined her in 1932; that she could only do light work then and can only do light work now; that she was around fifty per cent. disabled when he examined her in 1932; and that in his opinion she is still around fifty per cent. disabled. Dr. Rozar testified that he treated the claimant in February, 1932, and that in his opinion the claimant's present condition is about the same as it was when he made the examination in 1932, and she can still do light work.

Director Land rendered an award in favor of the claimant, in part as follows: "Director herein in 1932 made an award finding that the claimant had a bodily disability, as a result of her accident, and that she was fifty per cent. disabled. She was continuing her work at that time, and upon an appeal by the insurance carrier to the full board, the award was reversed. . . The full board, however, further decided as follows: ``If at any time in the future there is any change in the status of employer and employee resulting in a decrease of pay as a result of disability from this injury, the case will be reopened.' The future day that the full board evidently had in mind has come to pass, as the evidence shows that the claimant has a disability and is not able to perform the services required of her. . . Independently, however, of the former award, director now finds, from the evidence adduced in this latter hearing of February 7, 1939, that the claimant has a fifty per cent. bodily disability . . as a result of the original accident. . . Upon this hearing . . the evidence shows that the claimant . . can perform light work, and director accordingly finds that the claimant . . shall be paid compensation at the rate of $4.50 per week, for the remainder of her compensation weeks." The employer and insurance carrier appealed to the board, on the ground that the facts found by the director did not support the award; that there was not sufficient competent evidence to support such award; that the director acted without and in excess of his powers in making the award; and that the award was contrary to law, because it was contrary to the rulings in Strickland v. Metropolitan Casualty Insurance Co.,54 Ga. App. 866 (189 S.E. 424), and TravelersInsurance Co. v. Hurt, 176 Ga. 153 (167 S.E. 175); it being the contention of the appellants that the effect of the award was to nullify the provisions of the Code, § 114-405.

On May 6, 1939, the board set aside and reversed the award of Director Land, and dismissed the claim. It made the following findings of fact: "The undisputed evidence and stipulations disclose that the claimant, after returning to work on September 8, 1930, following her injury, worked regularly, at the same wage she was receiving at the time of the injury, until January 16, 1935; that from that date she was out of work for three months and twenty days, and then returned to work; that thereafter she worked until November 11, 1935, and from that date she was out of work five days; that thereafter she worked regularly until March 6, 1937, and from that date she was out one month and twenty days; that thereafter she returned to work and worked regularly until October 15, 1937, and from that date she was out of work for eight months and four days; and thereafter returned to work and worked regularly until September 22, 1938; and from that date she had not returned to work up to the date of the hearing on February 7, 1939." The board held: "Where an injured employee has received compensation under the provisions of the workmen's compensation act, and thereafter returns to her work earning the same wages she was earning on the date of the injury, and continues working regularly for several years, and then has periods of lost time, due to being laid off on account of economic conditions and a temporary cessation of the work on which she is employed, without any change in her physical condition, this does not constitute a change in condition authorizing an award of compensation within the meaning of the workmen's compensation act." The claimant appealed to the superior court, which reversed the award and remanded the case to the board, with direction to ascertain the number of weeks the claimant was "totally incapacitated," and to enter an award in her favor in accordance with the decree of court. The judge held, that "the evidence in the record demands a finding that on February 7, 1939, the claimant was totally incapacitated, and was entitled to compensation to be calculated in accordance with the provisions of the Code, § 114-404;" that "an examination of the record shows there has been a material change in the claimant's status;" that since the award of April 20, 1932, the claimant was away from work several times, and has been unable to work since September 22, 1938; that the claimant "swore that her inability to work was due solely to the injury she received while employed;" that "there were only two witnesses directly on this branch of the case, claimant and her former employer who corroborated her statements;" and that the claimant was not impeached or contradicted, and the law presumes she spoke the truth. To this judgment the employer and the insurance carrier excepted. The claimant applied for compensation on November 1, 1938, and an award was rendered in her favor on February 7, 1939, by Director Land. It appeared from the evidence that the claimant had sustained an accidental injury on July 30, 1930, while engaged in the performance of the duties of her employment with the Independent Laundry Company; that under an agreement she was paid compensation for four and one-third weeks; that she returned to work, and no further compensation was paid to her. Whereupon she filed a claim with the Industrial Board for compensation. It further appeared that the director rendered an award in favor of the claimant, finding that she was fifty per cent. disabled as a result of her injury, and able to perform light work only. This award of the director was reversed by the board on April 20, 1932, in which decision it was provided that "if at any time in the future there is any change in the status of the employer and employee, resulting in a decrease of pay as a result of disability from this injury, the case will be reopened." The board found that while the claimant had sustained an accidental injury she was suffering no disability therefrom, and was able to perform certain light duties for her employer at her regular wages. No appeal was taken from this award. The award of February 7, 1939, was set aside by the board, on the ground, among others, that there had not been a change in the condition of the claimant since April 20, 1932, the date of the previous award denying compensation. The board found as a fact that the claimant "is not now suffering any incapacity for work, and is physically able to earn the same wage she was earning at the time the injury occurred." The claimant's evidence tended to show that she was able to do the kind of work she had been doing in 1932, at the time of the previous award of Director Land, which was set aside by the board, and from which there was no appeal; and that when she worked she received the same wages as before her injury.

Therefore the finding of the board, now under consideration, again denying compensation to the claimant and setting aside the former award of the director in which compensation was awarded to the claimant, was not without evidence to support it. Findings of fact by the board are binding upon all courts, where supported by any competent evidence.Maryland Casualty Co. v. England, 160 Ga. 810 (129 S.E. 75). "On the review of an award by a director of the Industrial Board, the board acts as a fact-finding body and may reverse the award of a single director, although there be some evidence to support the finding of the director. In reviewing an award by the board denying compensation, this court must affirm the award of the board if the evidence favorable to the employer is sufficient to authorize the award denying compensation."American Mutual Liability Ins. Co. v. Bond,62 Ga. App. 562 (8 S.E.2d 715). The board, in setting aside the award of the director, found as a matter of fact "that the claimant has not had a change in condition for the worse since the last award was rendered, and is not now suffering any incapacity for work, and is physically able to earn the same wage she was earning at the time the injury occurred;" and that the claimant herself had testified that "she intended to return to this job as soon as the work was resumed."

It is true that the claimant testified that as a result of her injury she had not worked regularly since April 20, 1932, but had been unable to work for several intervals ranging from a few days to more than eight months, and that she had not been at work for the company since September 22, 1938. However, there was evidence which authorized the finding that the claimant was not then suffering any incapacity for work, and was physically able to earn the same wage that she was earning at the time the injury occurred; and that the reason she had not worked regularly and was not then employed was not due to her physical condition, but was due to the fact that her employer did not have work for her to do. She testified that she could still do the kind of work which she had been performing for the company since before April 20, 1932, but that she would still be in pain while doing that work, as she testified she was at the time of the hearing in 1932, and that she was not able to perform heavy work such as lifting bundles above her head, and had not been since her injury in July, 1930. The evidence authorized a finding that the claimant's condition had not changed, and that her capacity for work was the same at the time of the hearing on February 7, 1939, as it had been in 1932. "Upon their own motion before judicial determination or upon the application of any party in interest on the ground of a change in condition, the Department of Industrial Relations may at any time review any award or any settlement made between the parties and filed with the department and, on such review, may make an award ending, diminishing or increasing the compensation previously awarded or agreed upon, subject to the maximum or minimum provided in this Title, and shall immediately send to the parties a copy of the award. No such review shall affect such award as regards any moneys paid." Code, § 114-709. The Industrial Board is not authorized to award compensation after there has been an award denying compensation for the same injury, unless there has been an actual change in the condition of the employee since the previous award. Teems v. AmericanMutual Liability Insurance Co., 41 Ga. App. 100 (151 S.E. 826). There was sufficient competent evidence to support such finding of fact, in the claimant's own testimony, and in the testimony of others introduced as witnesses in her behalf. It necessarily follows (the above finding of fact being binding on the superior court), that court on appeal erred in reversing and setting aside the award of the board, and in adjudging that the claimant was entitled to compensation.

Judgment reversed. Sutton and Felton, JJ., concur.