Insurance Co. of North America v. Dimaio

Whitman, judge.

The trial court set aside and reversed an award of the Workmen’s Compensation Board and remanded the matter to the board for consideration of an application by the claimant to present additional evidence. In reversing and setting aside the award, the trial court was of the opinion, as expressed in its order, that “the full board overlooked and failed to consider the application of claimant to present additional evidence.”

The record shows that a hearing of the case was had before a. deputy director after which findings of fact and award were entered, dated November 16, 1967. The findings and award of the deputy director were appealed to the full board. It was pending the full board’s review of the matter that the claimant made a written application dated January 8, 1968, to present additional evidence. The full board made no separate or special ruling or response on the claimant’s application; rather on February 9, 1969, it entered an order adopting the findings of fact and award of the deputy director as its own.

The order of the trial court reversing the award and remanding the case to the board is appealed from and enumerated as error. Held:

1. The fact that the board made no separate or special ruling addressed to the claimant’s application cannot be a basis for reversal and remand of the board’s findings and award. There is no requirement in the statute, as was held in Continental Ins. Co. v. McDaniel, 118 Ga. App. 344, 345 (163 SE2d 923), involving a very similar factual situation, that the board must enter an order formally and expressly granting or denying a party’s application to have additional evidence taken. Thus the mere absence of such an order in the record, or the presence of a statement in the record by the secretary-treasurer of the board that “there was never a ruling made by this board on the two letters ■ in question,” cannot be the basis of reversal and remand by the trial court.

2. We may assume that the board considered the application but found it to be without merit.

“The board’s power to order the taking of additional evidence on review is a discretionary one. The appeal to the board being a de novo proceeding, it may in its discretion hear the parties at issue, their representatives and witnesses. . . However, the board is not obliged to take additional- testimony where it is not deemed advisable to do so. . . That discretion must not be disturbed except in cases where it is manifestly abused.

Argued February 5, 1969 Decided May 21, 1969 Rehearing denied July 30, 1969 Swift, Currie, McGhee & Hiers, Charles L. Drew, for appellants. Alford Wall, Richard D. Carr, for appellee.

“This court has held that the board, in exercising its power to take additional evidence on review, may properly be guided by principles applicable in the courts in passing on motions for new trial based on newly discovered evidence.” (Citations omitted.) Continental Ins. Co. v. McDaniel, 118 Ga. App. 344, 346, supra.

The application to present additional evidence states that the claimant was an Italian unable to speak English and therefore unable to communicate except through the aid of an interpreter; and that for the first time after the award of the deputy director was read to the claimant did the claimant impart to claimant’s attorney the name of a material witness to the case.

But we cannot say, notwithstanding the communication problem, that the new evidence now sought to be presented could not with reasonable diligence have been previously discovered and presented. There was no manifest abuse of discretion by the board in not allowing additional evidence.

The trial court erred in setting aside the award.

Judgment reversed.

Bell, P. J., Jordan, P. J., Eberhardt and Quillian, JJ., concur. Felton, C. J., Hall, Pannell and Deen, JJ., dissent.