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Lawskills.com Georgia Caselaw
DAVIS v. FIREMAN'S FUND INSURANCE COMPANY et al.
39609.
Workmen's compensation. Muscogee Superior Court. Before Judge Davis.
FELTON, Chief Judge.
1. The award of the State Board of Workmen's Compensation, being supported by competent evidence, was properly affirmed.
2. The errors in the transcript of the record were harmless.
The claimant filed his claim for compensation with the State Board of Workmen's Compensation on June 9, 1961, for an injury sustained on April 24, 1961. Following a hearing thereon, the deputy director awarded claimant medical expenses but no weekly compensation, based upon his findings of fact, which are substantially as follows: That the claimant's elbow gas struck by a moving object attached to a sign-lifting device he was operating for his employer; that the doctor who examined and treated him testified that he found severe contusion and a bruise on the elbow, but no physical injury except the superficial trauma; that no disability was anticipated and claimant could return to his regular job within two days of the injury, which the claimant did; that the claimant lost no compensation time due to the accident and was paid his regular weekly wage by the employer to May 10, 1961; that the evidence as to whether the claimant was fired or elected to quit his job being confusing, it was assumed that he elected to work elsewhere because the claimant worked for two different employers subsequently to May, 1961, and just prior to the date of this hearing, earning $95 plus the $55 to May 10, 1961, that his employer testified was available to the claimant when he elected to appear at the employer's place of business and accept it; that the claimant sustained no compensable disabling injury while employed by the defendant employer and that he is physically able to resume the regular type work he was doing at the time of the alleged accident. The claimant applied to the full board for review of the award on the bases that (1) the findings of fact relating to his disability were directly contrary to the uncontradicted and undisputable testimony, and that (2) the finding that the claim ant elected to work elsewhere and thus sustained no compensable disability was based on an erroneous assumption. The full board adopted the findings of fact and award of the deputy director. The claimant appealed to Muscogee Superior Court upon the same two grounds, with the additional ground, added by amendment, that the members acted without their powers in making an award from a materially incorrect and inaccurate record. The claimant introduced in evidence a certified copy of the page of the transcript on which the mistakes had occurred. The court affirmed the full board's award, and the claimant excepts to this judgment.
1. The first assignments of error are that there was not competent evidence to support the findings that claimant sustained no disability as a result of the injury and that claimant elected to work elsewhere and thus no compensable disability existed.
Under the Workmen's Compensation Act it has been held that "disability" means impairment of earning capacity, and can exist by reason of inability to procure employment as well as incapacity to perform the service. United States Cas. Co. v. Young, 104 Ga. App. 373, 375 (121 SE2d 680); Blue Bell Globe Mfg. Co. v. Baird, 61 Ga. App. 298 (6 SE2d 83); Lumbermen's Mut. Cas. Co. v. Cook, 69 Ga. App. 131, 136 (25 SE2d 67); Riegel Textile Corp. v. Vinyard, 88 Ga. App. 753, 755 (77 SE2d 760). Did the claimant sustain an impairment of his earning capacity? There was medical testimony that if the claimant's job consisted of lifting he was 100% temporarily disabled, but the claimant testified that his work consisted mainly of handing tools to other workers when needed and, further, when he returned to work all he did was drive a pickup and pick up parts, not using his injured left arm. The record shows that he was paid his regular wage for the first week after his injury and that he would have been paid the same wage for the second week had he come by the employer's office to pick up his pay. His employer testified that he would have given him light work to do if he had come to work. Code 114-407 provides: "If an injured employee refuses employment procured for him suitable to his capacity, lee shall not be entitled to any compensation at any time during the continuance of such refusal, unless in the opinion of the State Board of Workmen's Compensation such refusal as justified."
The claimant alleges an aggravation of the injury on May 3, 1961, but no report of the alleged injury was made to the employer. There was medical testimony that there was no disability other than pain and, disregarding the pain, the claimant was in as good shape as he was prior to the original injury. "Disability is not compensable under Code Ann. 114-404 and 114-405 regardless of pain except as there is a decrease in monetary return." Williamson v. Aetna Cas. &c. Co., 101 Ga. App. 220, 224 (113 SE2d 208). "There is no recognition of the elements of pain and suffering, or of increased discomfort and difficulty in performing the labors for which wages are paid after the injury; and as long as the average of these remain the same or more than those previously received, the law allows no compensation through the machinery of the industrial commission." American Mut. Liab. Ins. Co. v. Hampton, 33 Ga. App. 476 (1) (127 SE 155). The claimant testified that he had obtained other employment after leaving his former job. His testimony as to his earnings from this other employment varied from $50 to $60 or $65 for a week's work; therefore the board could have found that he earned the maximum amount, or $65. This testimony authorized the finding that the claimant suffered no impairment of his earning capacity, since his regular wage prior to his injury was only $55 weekly. The board's finding that he earned $95, if based on an erroneous finding, is not a ground for reversal of the award, since even under the finding of $65 earnings, which was authorized by the evidence, the award denying weekly compensation because there gas no impaired earning capacity was authorized. "Where there is any evidence to support the award of the State Board of Workmen's Compensation, neither the superior court nor this court has any authority to review the evidence and decide that the weight of the evidence is contrary to such award, and under the decision of the Supreme Court in the case of American Mutual Liability Ins. Co. v. Sisson, 198 Ga. 623 (32 SE2d 295), if the award was authorized it must be affirmed even though the award was based on an erroneous finding and conclusion of fact. Wisebram Dept. Store v. Bowman, 92 Ga. App. 587 (89 SE2d 547)." Liberty Mut. Ins. Co. v. Thomas, 99 Ga. App. 124, 125 (108 SE2d 180); Ford v. Liberty Mutual Ins. Co., 99 Ga. App. 257, 258 (1) (108 SE2d 311).
There being competent evidence to support the board's findings, these assignments of error are without merit.
2. Error is assigned on the board's acting without its powers in making an award from a materially incorrect and in accurate record. The paragraph of the record which contained the errors was transcribed as follows (corrections, made from the certified transcript, appear in brackets): "A. June. I will have to say further that his was the respective [retrospective] statement in there; that on the 12th of June, when we filled these papers out, we asked Julian when he returned to work assuming that he did not return with his arm still hurting him. My secretary filled in this blank, she does these blanks and I accept the responsibility for them, but I signed this saying he was able to return to work and like I said, this is a record specular [retrospective] because he assuming that he had not known by this agreement." (Emphasis supplied.)
The doctor who gave this testimony also testified that he had seen the claimant on the date of the injury and also the next day, and that he had filled out an insurance form in regard to the claimant on June 12th; therefore it was patent that the statements made in the report were retrospective to the time at which the doctor examined the claimant. This was not such an error as would have been likely to mislead the board; therefore the court might have properly affirmed the award even without consideration of the claimant's corrective amendment to the transcript of the record. This ground is therefore without merit.
The court did not err in its judgment affirming the award of the board.
Judgment affirmed. Bell and Hall, JJ., concur.
Foley, Chappell, Young & Hollis, W. H. Young, III, contra.
Coffin & Brinkley, Jack T. Brinkley, for plaintiff in error.
DECIDED SEPTEMBER 11, 1962.
Friday May 22 22:47 EDT


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