American Mutual Liability Insurance v. Grimes , 100 Ga. App. 51 ( 1959 )

Quillian, Judge.

In this case the deputy director entered an award in favor of the employer. She based her award upon the conclusion that the claimant had not carried the burden of proving a change in his condition since he returned to work after a period of disability caused by a compensable injury. Three physicians testified as expert witnesses in the case. The deputy director held that the testimony of two of the witnesses could not be considered by her since they had not examined the claimant at or. before the original claim for compensation was filed. Both witnesses answered various hypothetical questions, some of which were material in establishing the fact of the alleged change in the claimant’s condition. On an appeal of the case Judge Shaw of Fulton Superior Court reversed her decision.

Decided July 6, 1959 Rehearing denied July 21, 1959. Greene, Neely, Buckley & DeRieux, Burt DeRieux, for plaintiffs in error. L. D. Bums, Jr., contra.

Judge Shaw wrote an opinion: “This is a change of condition. The board made an erroneous finding of law in holding that only the testimony of Dr. McLendon could be considered since the other two named doctors had not examined claimant at or before the original claim was filed. The case of Phinese v. Ocean Accident &c. Corp., 81 Ga. App. 394 (58 S. E. 2d 921) does not apply since there was evidence by the claimant himself as to a change in condition. The board should have considered, along with the other evidence, the testimony of Dr. Trimble and Dr. Bickers since this testimony is admissible, See Wilson v. Swift & Co., 68 Ga. App. 701 (23 S. E. 2d 261). The weight and credit to be given the testimony of these doctors is a matter which addresses itself to the sole discretion of the board.”

The opinion expresses the views of this court.

Judgment affirmed.

Gardner, P. J., Carlisle and Nichols, JJ., concur. Felton, C. J., and Townsend, J., dissent.