Truelove v. Hulette , 103 Ga. App. 641 ( 1961 )

Nichols, Judge.

This case was assigned to the writer after a dissent to the original majority opinion wa's filed. As I understand the record the sole question for determination is whether or not claimant’s injury is compensable under the Workmen’s Compensation Act. While “The burden of proof is on the claimant in cases arising under the Workmen’s Compensation Act to establish the fact that the employee has sustained an accidental injury such as is contemplated by the act” (Maddox v. Buice Transfer &c. Co., 81 Ga. App. 503, 59 S. E. 2d 329; American Mut. Liab. Ins. Co. v. Harden, 64 Ga. App. 593, 13 S. E. 2d 685; Rivers v. Travelers Ins. Co., 93 Ga. App. 779, 92 S. E. 2d 818), it is also the well-established rale that a finding of fact by a director of the Workmen’s Compensation Board that the claimant has carried such burden of proof is conclusive upon the courts of this State if there is any evidence to support such finding; Montgomery v. Maryland Cas. Co., 169 Ga. 746 (151 S. E. 363); American Mut. Liab. Ins. Co. v. Casey, 91 Ga. App. 694 (86 S. E. 2d 697). In the present case the evidence was conflicting as between the claimant Hulette and the physician Dr. Parker, with reference to whether or not the injury was compensable under the Workmen’s Compensation Act. The claimant testified that his injury occurred when he picked up a piece of lumber, 2 x 8, 16 feet long weighing 150 pounds and stepped backwards into a hole and immediately felt the tear in his stomach, while Dr. Parker, on direct examination, testified: “It is my opinion that muscular activity would not cause a rupture such as that. An ulcer like that can rupture if he had been sitting down, standing up, running, or even lying in bed.” On cross-examination Dr. Parker testified: “It is possible that this type of ulcer could have gone without bursting for ten or twelve years, however, something happened on this occasion to cause it to burst. There are certain things that cause one to- -burst. An ulcer destroys the tissues somewhat, and the tissues would be weak where the ulcer was. Something could happen to cause it to burst quicker tha'n otherwise. I do not think, however, the -muscular activity would have anything to do with rupture breakage, however, I will have to answer yes that anything is possible, that an unusual break or strain could cause weak tissues to burst, whereas it could have lasted several months or years longer. I would have to say that anything is possible. Therefore a man with a piece of timber in his hands weighing better than 100 pounds stepping backwards into a hole could cause the ulcer to burst where it might have lasted years or months.” Boiled down, in effect, all the doctor, in essence, testified was: It could have happened as claimant said, but I don’t think so. In the case of City of Atlanta v. Champe, 66 Ga. 659, 663, Chief Justice Jackson speaking for the Supreme Court said: “Whilst, with equal opportunities of judging, the testimony of an expert should be preferred to that of one unskilled in a profession or trade, it is not the rule, nor is it common sense, where the opportunities to know are all with the unlearned. In this case the plaintiff knew whether she suffered from' her womb after this accident and not before better than any doctor could, and if entitled to credit and believed by the jury, her knowledge-would, and ought to, outweigh the opinion of a whole college of physicians — because theirs is at last opinion — mere opinion — founded it is true upon argument and expert argument and experience, but all based at last on the facts the patient discloses by her appearance and the information she gives of internal pain not visible to the eye.” Therefore any contention that similar language as used by Chief Judge Hill in the case of Southern Ry. Co. v. Tankersley, 3 Ga. App. 548 (60 S. E. 297) is obiter and not binding on this court is without merit, for even if we concede, arguendo, that such language is obiter this court is bound by the above quoted decision of the Supreme Court, which has been followed but never overruled.

While it is certainly true that when the subject under consideration is one solely within the knowledge of experts (where in a workmen’s compensation case the injured employee died, as occurred in the case of Crawford W. Long Hospital v. Mitchell, 100 Ga. App. 276, 111 S. E. 2d 120) expert testimony, of necessity, must be believed, if uncontradicted. But, such are not the facts in the case sub judice where the fact of injury is uncontradicted, and the sole question to be decided is whether or not such injury is compensable under the Workmen’s Compensation Act, and the claimant testified to facts before the single director of the Workmen’s Compensation Board which would authorize a finding that such injury arose out of and in the course of his employment in that claimant’s injuiy resulted from the perforation of a pre-existing ulcer, said perforation being caused by an accidental injury while in the course of his employment. The single director hearing the case was authorized, under the evidence, to make such finding and award and the judge of the superior court did not err in affirming such award.

Judgment affirmed.

All the Judges concur except Felton, C. J., and Eberhardt, J., who dissent.