King v. Piedmont-Warner Development , 177 Ga. App. 176 ( 1985 )

Deen, Presiding Judge.

The evidence is undisputed that Andy L. King had an accident arising out of and in the course of his employment on August 26, 1983, when he fractured his right ankle. He was treated by a physician and returned to work on December 5, 1983, the physician having found he had a 10% permanent partial disability. It is further undisputed that appellant’s work as a carpenter involved lifting heavy objects, and that he experienced pain and was unable to lift preconstructed wooden trusses, beams, or other heavy objects such as fireplace inserts.

On December 26, 1983, approximately three weeks after returning to work, appellant, along with several others, was laid off. In April of 1984 he consulted another insurer-approved physician, who found that he was still in pain on extremes of motion for flexion and extension, and that x-rays showed that he had a healing fracture of the right lateral malleolus, with the fracture line still present. Appellant testified that he had applied to various employers, but his inquiries never reached the stage of discussing his disability because no work was available. He did testify that he was still actively seeking work and had helped his brother build a house for about three days, but that his leg would swell up and hurt and he would have to stay off it.

The Administrative Law Judge issued an award of compensation in favor of King, finding that he had undergone a change of condition on December 23, 1983, and was able to do light work and perform basic carpentry duties, but was limited in lifting and carrying heavy items due to pain. The ALJ found further that appellant’s job required him to lift and carry heavy items; that he was also required to stand for long periods of time; and that as a result, work became unavailable to him on December 26, 1983. Upon de novo review, the full board affirmed the award and adopted the findings of the Administrative Law Judge. The superior court reversed, holding that there was no evidence to support the finding of the State Board of Workers’ Compensation, because eighteen to twenty other employees were laid off at the same time as appellant. Held:

We disagree with the findings and holding of the court below and reverse. The undisputed evidence shows that appellant underwent a change of condition after he returned to work. While economic conditions might have been such that job opportunities in his field were scarce, the medical evidence and appellant’s corroborating testimony indicate that, because of his disability, he would have been unable to obtain other employment even if it were available. Gilmer v. Atlanta Housing Auth., 170 Ga. App. 326 (316 SE2d 535) (1984). Indeed, his former employer testified that “if a physician was to tell Andy that he could not lift heavy loads, and carry them — in other words, if he could not assist other people on the job to do that, if the only thing he could do was to nail nails . . . ,” he would not hire him.

Judgment reversed.

Banke, C. J., McMurray, P. J., Birdsong, P. J., Sognier, Pope and Benham, JJ., concur. Carley and Beasley, JJ., dissent.