Hartford Accident & Indemnity Co. v. Carroll

1. Where the parties agree upon compensation to be paid an injured employee, and the State Board of Workmen's Compensation approves the agreement, the board has authority, within the time prescribed by law, to hear and determine an application by the employee for additional compensation on the ground of a change in condition, notwithstanding an earlier award finding that an aggravation of a pre-existing osteo-arthritis by the injury had ceased; such an award merely adjudicated the claimant's condition at the time of that hearing and was not res judicata as to the condition at the later hearing.

2. There was no evidence which would authorize the single director in finding that there had been a change in the claimant's condition as a result of the original injury.

DECIDED JUNE 18, 1947. REHEARING DENIED JULY 16, 1947. M. M. Carroll was injured at Bell Aircraft Corporation in Marietta. Georgia, May 13, 1944, when he was struck in the back by a motor scooter and knocked down. The insurance carrier, Hartford Accident Indemnity Company, the employer, and the claimant entered into an agreement for the payment of compensation to the claimant on May 31, 1944, which agreement was approved by the State Workmen's Compensation Board. The agreement stipulated that compensation should be paid at the rate of $20 per week based on an average weekly wage of $47.32, until terminated in accordance with the provisions of the Workmen's Compensation Law of the State. On April 24, 1945, after a hearing had at the instance of the insurance carrier, a single director made the following material findings of fact: "From the admissions made by the employer and/or insurer and the evidence adduced at the hearing, I find as a matter of fact and conclude as a matter of law that Marshall M. Carroll was an employee of Bell Aircraft Corporation, Marietta, Georgia, on or about the 13th day of May, 1944, at a regular weekly wage in excess of $40, and that on said date he met with an accident and injury that arose out of and in the course of his employment. . . From a preponderance of the testimony, I am of the opinion that, the accident and injury being slight, did aggravate the severe osteo-arthritis which had existed from seven to ten years previous to the injury, and from the medical testimony it is my conscientious opinion that the aggravation, giving the claimant the benefit of the doubt, had entirely cleared up at the expiration of ten months from the date of the accident and injury on May 13, 1944, and that after the period of ten months from the date of the accident and injury the claimant's disability is due solely and entirely to the osteo-arthritis condition and other chronic conditions of disease not the result of traumatic injury and he is, therefore, not entitled to additional compensation after said period." On appeal this finding of the single director was affirmed by the full board, the Superior Court of Cobb County, and by this court. Carroll v. Hartford Accident Indemnity Co., 73 Ga. App. 799 (38 S.E.2d 185).

While the appeal was pending in this court, the claimant, on December 19, 1945, filed an application with the State Board of Workmen's Compensation for review on the ground of a change in condition. After a hearing was had, another single director found that there had been a change in condition. On appeal to the full board this finding was affirmed, with the original hearing director dissenting. The Superior Court of Cobb County affirmed the award, and the employer and insurer appealed to this court on the ground that the first award was conclusive on the claimant and res judicata that the aggravation to his osteo-arthritis caused by the accident and injury had ceased and that his disability resulted solely from his osteo-arthritis and not from the injury, and that there was not sufficient evidence to authorize the finding on the last hearing that there had been a change in condition. The evidence adduced at the two hearings which is material to a determination of the case is as follows: On the first hearing the report of Dr. Rufus A. Askew, was admitted in evidence by agreement. Dr. Askew reported: "He [the claimant] simply complained of pain throughout the entire back. X-ray examination of the spine was made, revealing advanced osteo-arthritis which in my opinion is much more advanced than is ordinarily seen in one of his age. There was no evidence of fracture, or dislocation. The arthritis was of such a nature as to indicate that it was of several-years' duration. . . It is my opinion that due to the fact that he did have this arthritis he probably did receive some slight aggravation of it at the time of his injury on May 13, 1944. However, any aggravation which might have occurred following the injury on May 13th would not have been sufficient to have caused total disability at the time of my examination, unless the injuries were very, very severe. . . Therefore, in my opinion he has completely recovered from any aggravation of his pre-existing arthritis resulting from the injury received on May 13, 1944." Dr. Askew testified at the hearing: "It was my opinion after examination that he had more osteo-arthritis than is usually seen in a person sixty-four years of age. My impression was that he was definitely disabled, but I thought his disability was due to the osteo-arthritis. He had a large beak-like formation on some of his vertebrae and these indicated, of course, that the osteo-arthritis was of several-years' duration. Therefore, it was my opinion to the company that he had had an aggravation of his osteo-arthritis at the time of his injury, but an aggravation as slight as he had should have disappeared by the time of my examination, and I felt that his disability was due to his blood pressure, his heart and chronic osteo-arthritis and his period of aggravation ceased — ceased to exist. Q. In other words, at the time you didn't find any disability as a result of accident that he sustained on May 13, 1944? A. No, sir. . . He is totally disabled for heavy manual work. . . A person who has advanced osteo-arthritis, who receives an accident would certainly have an aggravation as a result of the injury which they received. The aggravation would depend upon the extent of the osteo-arthritis and the extent of the injury. This man had advanced osteo-arthritis, but with a what is supposed to have been, and I am sure it is true — he admits it was a slight injury, therefore the aggravation would of course be more than it would have been to a person who had only a slight osteo-arthritis. Q. Now, I want you to tell this director, granting that this man having not worked a day since, still totally disabled, that he is wearing a brace ordered by the company doctors, and using a stick, I want you to tell the director when the aggravation ceased, please, sir? A. I would think that an injury of the severity he had, the arthritis that he had, would cause a very long period of aggravation, much, much longer than it would in an ordinary person, probably six to eight months, maybe ten months. That would be the very maximum; I think that three to four months, possibly six to eight months maximum. Q. Now, doctor, he has never gotten well, has he? A. He would not have gotten well if he had never had an accident; he was already a sick man; no, sir, you can't expect him to get well because he was already a sick man. Q. Then this accident caused it to flare up, didn't it? A. Yes. Q. It caused it to flare up and that flare up has not ceased until this date? A. Well, I think with — I think that what aggravation he had would have ceased by this time . . and therefore, I don't think and don't believe any one else thinks that the arthritis condition he now has is the result of the original stimulant or rather, the accident he had. Now, I will grant that the accident naturally would aggravate the condition, but I am also absolutely conscientious in saying that I think the aggravation would certainly not be more than seven to eight months. . . I can in my own mind and conscientiously think that from the degree of the injury which he had, he should not have had an aggravation more than six to eight months. Q. He should not, but he has? A. I think he has. . . Q. Doctor, . . if this man had that arthritis, and he had this injury and you admit this injury did cause that arthritis to flare up, and he has still got arthritis, how are you going to say when the aggravation ceased? A. It would be purely a medical opinion."

Dr. M. B. Copeloff testified in behalf of the claimant on cross-examination, as follows: "Q. Now, you're not saying that that arthritis is traumatic are you? A. No, sir. Q. There is a type that is not traumatic? A. There is a type that is not traumatic. Q. Well, is this the type? A. From the looks of the arthritis and the length of time that it has existed, I would say no, it is not due to trauma. . . Q. Now did you find anything that would indicate any evidence of injury? A. No, I found no evidence of injury. Q. Absolutely none? A. No, sir. Q. So it simmers itself down to this, Dr. Copeloff, all you found is a man 64 years old with a systemic arthritis. A. Yes, sir. Q. That in your opinion had been existing from seven to ten years? A. That is right." On redirect examination Dr. Copeloff testified: "Q. What do you find was motivating it? A. The only thing I have is the history he gave me, a history of having had an injury, and naturally I would say this injury is what aggravated this arthritis and caused him to have this pain. Q. You would not know how long it would take to clear up? A. No, sir. Q. But after examining him you say it has not cleared up. A. That is right. Q. Is he permanently and totally disabled in the future? A. Yes. Q. Is he suffering pain? A. Now, I can't tell that; he tells me he has pain; that is the only thing I could go by. Q. Does he evidence pain by the way he walks? A. Yes, the way he walks, gets on and off the table." The claimant testified in his own behalf: "Q. Have you been well at any time since you fell? A. No, sir, if anything I am getting worse all the time. . . Q. Can you get around without that brace? A. No, sir. Q. Did you ever wear a brace before that accident? A. No, sir. Q. Did you have arthritis in your back that you knew of before this accident? A. No, sir. . . Q. Have you got rid of that pain for any time? A. No, sir, I have not been easy since the accident; when I take aspirin or something that way, that may help me to drop off to sleep, then I don't suppose — then I suppose I am easy; I never have been easy when I am awake. . . Q. Can you walk around without your brace or stick? A. No, sir. . . Q. Are you worse now than you were the day you got injured? A. Yes, sir." As stated above, the director found for the claimant as indicated.

On the second hearing for the purpose of review on the ground of a change in condition, Dr. F. C. Mims reported: "The X-ray shows an excessive amount of callus at the lumbo-sacral articulation, which definitely indicates that this particular joint sustained a rather severe injury in May, 1944, and probably a moderately severe inflammatory condition was superimposed on a pre-existing osteo-arthritis at that point. In any event, the history and the present physical condition and X-ray findings amply justify a diagnosis of aggravation of a pre-existing osteo-arthritis by trauma, and as the disability has been continuous with no improvement in the pathology present, the conclusion is that the aggravation persists. . . This claimant has a permanent total disability to his body due to an aggravation of a pre-existing osteo-arthritis, involving the lumbo-sacral region, by trauma. Maximum improvement has been reached."

On the second hearing, Dr. Mims testified: "Q. Now, it is your opinion that he has been totally disabled ever since this accident? A. Yes, sir, I think so. . . Q. Do you see anything that would indicate a change in his condition since the accident? A. No, sir, except this — in all fairness, I want to be perfectly fair, we know that arthritis itself is progressive. The arthritis is progressive, and he says himself that he is worse in the past three months and I believe him because as they grow older they get a little worse with the arthritis too. . . Q. Then it is your opinion that he has had a change so far as pain and suffering is concerned since this injury? A. Yes, sir, I think he has had a change and I think he probably has reached maximum improvement after several months, and since that time he is having more and more pain and is going to have more discomfort."

The claimant testified: "Well, I am a whole lot worse than I was then because I could walk around pretty good with my stick, but now I got to where I can't hardly travel with it at all. I can hardly get around from one place to another, even in the house I can not walk without my stick to walk with. Q. Has the pain in your back where you sustained this injury increased since this last hearing? A. Yes, sir, hurts me a whole lot worse since then. Q. What about your rest and sleeping at night? A. I can't hardly sleep at all without taking something to ease me where I can sleep. Some nights I don't sleep over a couple of hours all night. Q. Have you noticed in the last two or three months that this pain has increased and you are restless more at night? A. Yes, sir, worse than it was. Q. Now at the last hearing Dr. Askew I think testified that you at that time were able to do some sort of light work, such as sitting or brain work, I think is the way he termed it? A. Yes. Q. I will get you to state at the present time if you are physically able to do any kind of work, even sitting jobs? A. No, sir. I couldn't do any kind of job because I couldn't stay in one position a long time. . . Q. And it is harder for you to get around and walk around? A. Yes, sir. Q. And it has been getting worse for the last two or three months? A. Yes, sir." As indicated above, on the second hearing the director found in favor of the claimant. 1. It is the position of the plaintiff in error, relying strongly on AEtna Life Ins. Co. v. Davis, 172 Ga. 258 (157 S.E. 449), that the first hearing, and the finding of the original director that the aggravation of the claimant's osteo-arthritis resulting from the injury had ceased after a period of ten months from the date of the injury, which finding was affirmed by this court, was a final adjudication of all the matters involved in the second hearing; and that, under the Code, § 114-709, or other provisions of the Workmen's Compensation Act, the State Board of Workmen's Compensation has not the power, after a full hearing, to entertain another application by the employee for compensation for the same injury, based on an alleged change in condition. In view of the ruling of the Supreme Court in Lumbermen's Mutual Casualty Co. v. Cook, 195 Ga. 397 (24 S.E.2d 309) (and see also Lumbermen's Mutual CasualtyCo. v. Cook, 69 Ga. App. 131, 25 S.E.2d 67), and the fact that the parties had entered into an agreement, approved by the board, for payment of compensation, this position is untenable. By entering into the agreement and obtaining the approval of the board, the parties precluded themselves from thereafter contradicting the matters there agreed upon, viz., that there was an accidental injury which arose out of and in the course of the employment, and that the injury was compensable. The effect of the agreement was to give the board jurisdiction of the matter and subject the case to the possibility of review under the terms of Code, § 114-709, should there be a change in condition. In the Davis case, supra, the Supreme Court apparently disregarded the agreement involved in that case and treated the case as though compensation had been denied in the first instance. In the Cook case, supra, however, the Supreme Court reconsidered the Davis case, which was decided by a divided court, Russell, C. J., and Hines, J., dissenting, and stated: "The language of the decision indicates that no consideration was given by this court to an approved agreement, and the case was decided upon the theory that no such agreement was involved, this court evidently overlooking the significance of the agreement . . [and] in view of the record,that judgment is unsound and will not be followed." In answer to the question certified to it by this court the Supreme Court in the Cook case held: "Where the parties agree upon compensation to be paid to an injured employee, and the Industrial Board [State Board of Workmen's Compensation] approves the agreement, the board has authority, within the time prescribed by law, to hear and determine an application by the employee for additional compensation on the ground of a change in condition. The denial by the board of the employee's application for medical aid, subsequently to the approval by the board of the original agreement of the parties, is not res judicata on the matters presented by the petition for review, and does not bar the employee's right to such review." The effect of the ruling in the Cook case, refusing to follow the Davis case, is to overrule the Davis case as well as the following cases from this court, which were handed down by this court before the decision in the Cook case, in which this court was compelled to follow the ruling in the Davis case, insofar as they conflict with the ruling in the Cook case: Martin v. United StatesFidelity Guaranty Co., 58 Ga. App. 59 (197 S.E. 660), andPerry v. American Mutual Liability Ins. Co., 65 Ga. App. 130 (15 S.E.2d 471).

As indicated above, the agreement between the parties, approved by the board, had the effect of an original awardgranting compensation, and while the preliminary essentials, viz., that there was an accidental injury which arose out of and in the course of the employment are res judicata, the physical condition of the employee remained open for consideration at any time within the time prescribed by law, under the terms of Code, § 114-709. The finding by the original director that the aggravation had ceased in no way contradicted, nor could it have legally contradicted, the agreement that there had been an accidental injury which arose out of and in the course of the employment. These matters are res judicata. The claimant's physical condition, however, remained open for review and indeed the original director found that there had been a change in condition since the agreement, in that the aggravation had ceased. However, that finding merely adjudicated the claimant's condition at that time, and again the claimant's condition, under the circumstances, was left open to review (Rhindress v.Atlantic Steel Co., 71 Ga. App. 898, 32 S.E.2d 554;Hartford Accident Indemnity Co. v. Camp, 69 Ga. App. 758,26 S.E.2d 679), and did not bar the employee of his right to have his physical condition at the time of the second hearing reviewed and determined.

2. To ascertain whether there was sufficient evidence to warrant the finding of the second director "that the claimant's condition has undergone a change for the worse," the evidence must be considered to see whether there had been a change in condition and whether this change in condition was attributable to the original injury sustained. All the evidence bearing upon this point has been set out in the statement of facts preceding this opinion, and we think it unnecessary to repeat it here. While there is ample evidence that Dr. Mims disagrees with the findings of the physicians who testified that there was no aggravation resulting from the injury at the time of the first hearing, and that he found an aggravation existing at the time of the second hearing which he attributed to the original injury — he nowhere testified that there has been a change in condition since the previous hearing which would tend to show that the findings at the previous hearing were incorrect. It is true that the claimant testified that his condition had grown worse since the last hearing, but he does not say that his increased disability to move about and his increased pain and suffering were the result of the original injury. It could just as reasonably have been the result of the pre-existing osteo-arthritis as the employer's physicians testified. As was said by Judge Sutton in his dissenting opinion in Miller v.Indemnity Ins. Co. of North America, 55 Ga. App. 644, 648 (190 S.E. 868): "A change in condition means a different condition from that existent when the award was made; and a continued incapacity of the same kind and character, and for the same injury, is not a change in condition. See Fralish v.Royal Indemnity Co., 53 Ga. App. 557 (186 S.E. 567), and cit." The case of Ware v. Swift Co., 59 Ga. App. 836 (2 S.E.2d, 128), is clearly distinguishable. There it is stated: "The evidence for the claimant was uncontroverted as to the cause of his paralysis and as to the fact that there had been a recent change in his condition. . . Likewise, there is no evidence which would disassociate the claimant's condition in 1937 [the time of the last hearing in the case] from the original injury." There was no evidence that the claimant's condition had changed since the first hearing in such a way as to show that the original finding was made without the light of the newest facts and conditions which could be found to show that the former award was erroneous.

The former award adjudicated that at the time of its rendition the aggravation caused by the injury had ceased to exist. No review of such an award may be had except for a change in condition based on evidence from which the board could find that the change in condition throws new light on the former findings. In this case there is no evidence that the change in condition throws new light on the former findings. Dr. Mims would have testified that the injury caused the claimant's condition at the last hearing and at the former if there had been no change in condition. The last hearing was nothing more than a hearing based on additional evidence, additional to that of the former hearing, and was not a hearing in which the new evidence that the aggravation from the injury did not cease at ten months from the injury, based on the change in the claimant's condition. If a new award based on a change in condition is allowed merely because a party can produce an additional witness to support his or its original contention, there would be no end of hearings in any case until the statute barred further hearings. This the law does not permit. Consequently the award of the board granting compensation on the ground of a change in condition was unwarranted, and the superior court erred in affirming such award.

Judgment reversed. Sutton, C. J., and Parker, J., concur.