Opinion
40673.
DECIDED MAY 28, 1964.
Workmen's compensation. Thomas Superior Court. Before Judge Lilly.
Conger Conger, Leonard H. Conger, for plaintiffs in error.
Forester Calhoun, Marcus B. Calhoun, Alexander, Vann Lilly, contra.
A hearing was held before a deputy director of the State Board of Workmen's Compensation to determine liability, disability, compensation, and medical, arising out of an injury allegedly sustained by the claimant-employee on April 17, 1961. The parties stipulated that the burden of proof was on the claimant. The deputy director found that the claimant was suffering from a partial incapacity to work, but that this disability primarily resulted from a back injury sustained in April, 1957, and was not traceable to the injury of April 1961, upon which the claim was predicated. Accordingly, an award denying compensation was entered by the deputy director, and was affirmed by the full board. The Superior Court of Thomas County reversed the award of the full board and remanded the case to the board with direction that an award for permanent partial disability be issued in favor of the claimant. The exception is to that judgment. Held:
The finding of the deputy director which was affirmed by the full board that the claimant's disability was not traceable to the 1961 injury upon which the claim was predicated but resulted from a back injury sustained in 1957 was fully authorized by the evidence including the testimony of the claimant's medical witness; and in the absence of a showing that the award was based on fraud or a mistake of law, it was error for the superior court to reverse the award of the board. Hall v. St. Paul-Mercury Indem. Co., 96 Ga. App. 567 ( 101 S.E.2d 94); Indemnity Ins. Co. v. O'Neal, 104 Ga. App. 305 (3) ( 121 S.E.2d 689). The evidence in this case did not demand a finding that the injury of April 1961 aggravated the claimant's pre-existing condition and further diminished his earning capacity; and the case of Aetna Cas. c. Co. v. Cagle, 106 Ga. App. 440 (126 S.E.2d 907), relied upon by the claimant's counsel, is not controlling here.
Judgment reversed. Bell, P. J., and Eberhardt, J., concur.