Farr v. United States Fidelity & Guaranty Co. ( 1958 )

Felton, Chief Judge.

The defendants contend that the evidence is insufficient to show that the claimant notified his employer of the accident as required by law. In a deposition the claimant fully testified that he had given such notice. However, in his testimony at the hearing, he did not testify as to any notice given to his employer. The question is whether or not the deposition was in evidence so that the testimony contained in the deposition concerning such notice was before the board in their consideration of the case. The deposition was certified to the superior court as being a part of the record in the case and is also a part of the record in the case as it stands before this court. After a careful examination of the entire record, it appears that the deposition was received in evidence and was before the director and the full board upon their consideration of the case, and since there was testimony in the deposition to the effect that the required notice had been given by the claimant to the employer, a finding that such notice had actually been given was authorized.

In his finding of fact the single director found that the claimant “sustained an accident and injury which arose out of and in the course of his employment while handling heavy freight when a drum or barrel he was handling fell against him and injured him or aggravated a pre-existing condition which claimant had suffered for some time.” The director found further that the “strain and handling this heavy barrel aggravated this [preexisting] condition to the extent that the claimant is now totally disabled.” The defendants contend that the director and the board did not make a valid finding of fact because they found in the alternative that the claimant either suffered an original injury or an injury which aggravated a pre-existing condition. Where the evidence only authorizes one of such findings a director or the board cannot make an alternative finding. However, where there is evidence that will support a finding that the claimant either suffered an original injury or an injury which aggx-avated a pre-existing condition, a finding in the alternative is not invalid. The testimony of three doctors was in evidence. There was medical evidence which authorized a finding that the claimant suffered a strain of muscles in the lower region of his back wholly disconnected with any pre-existing condition. There was other medical evidence to the effect that the claimant was suffering from arthritis and that the injury could have aggravated the existing arthritic condition to cause the pain and disability suffered by the claimant. In view of such medical testimony the board’s finding that the claimant either suffered an original injury or suffered- an injury which aggravated a preexisting condition was authorized.

The defendants further contend that certain hypothetical facts were not substantiated by the actual facts as they appeared in the evidence. One such discrepancy was that in the hypothetical question it was stated that the barrel fell against the claimant knocking him against the back of the truck, whereas the evidence showed that the barrel knocked the claimant against the side of the truck. This discrepancy was inconsequential and could not have had any bearing whatsoever on the doctor’s answer to the hypothetical question as a whole. The other discrepancy was that the hypothetical question contained the fact that upon being struck by the barrel the claimant suffered an immediate pain and that he continued to suffer such pain throughout the rest of the day, whereas the actual facts show that the claimant suffered an immediate pain upon being struck by the barrel but such pain subsided and the claimant did not experience any pain the rest of the afternoon and pain did not recur until some hours later. This variance was also inconsequential and had no bearing on the answer given in response to the hypothetical question, as there was medical evidence that the claimant could have suffered a valid injury in the manner described and suffered only momentary pain at the time of the happening: “Q. And assuming that he had pain, just momentary pain at the time the barrel slipped, and he went on that same afternoon to five different places picking up large boxes of freight and had no pain, and went back to the warehouse, and with the assistance of other employees, and in the usual course of his employment, unloaded his truck and drove on to Villa Rica, Georgia, and claimed to have had no pain that night. Would you consider that he had any severe strain on November 30th, 1956? A. He could have. For instance, in this strain or whiplash neck injury where the spine is thrown, sometimes we don’t see much discomfort for a few days afterwards.”

The evidence authorized a finding that the defendant at the time of the hearing was suffering a temporary total disability. There was medical evidence that the claimant was 95 percent disabled from doing the type of work he was employed to do at the time of his injury. The claimant testified that he could not do any lifting of any sort and could not find any work which he could do with his existing injury. This evidence was sufficient to authorize the finding as to temporary total disability.

Since there was evidence to support the awards of the single director and the full board, the court erred in reversing the award and in remanding the case for a de novo hearing.

Judgment reversed.

Qidllian and Nichols, JJ., concur.