Opinion
39005.
DECIDED SEPTEMBER 12, 1961.
Workmen's compensation. Fulton Superior Court. Before Judge Alverson.
Theodore G. Frankel, Nall, Miller, Cadenhead Dennis, B. Carl Buice, for plaintiffs in error.
Kermit C. Bradford, contra.
An award of the State Board of Workmen's Compensation when supported by any competent evidence is conclusive and cannot be disturbed by the courts.
DECIDED SEPTEMBER 12, 1961.
The defendant in error, hereinafter called claimant, was injured while engaged in heavy construction work for Southeastern Construction Co., hereinafter called employer. The claimant and the employer entered into an agreement in regard to compensation under which the claimant received weekly compensation for temporary total disability in accordance with the provisions of the Workmen's Compensation Law. These payments were discontinued after eight weeks. Thereafter the claimant made application to reopen his case on the ground that developments subsequent to his receipt of compensation show that he was permanently disabled from doing the heavy work he was accustomed to performing before the accident, and that his disability had diminished his earning capacity. At the hearing (held for the purpose of determining liability, disability, compensation and medical) before the director the claimant testified that when he was injured, on August 4, 1958, he was working for the employer full time on a summer job between high school years, earning $1.70 per hour; that school started on September 15 or 16, 1958; that during the school year he planned to work with the employer only after school hours, and would have gone back full time after he graduated; that his injury was followed by surgical removal of his left kidney on August 25, 1958; that on October 4, 1958, a physician pronounced him able to go back to work and he then went back to the employer and offered himself for the same employment and they would not take him because they were afraid he would hurt his other kidney, or that the work would result in some other injury; that on September 18, 1958, he went to work for another employer as an addressograph operator, a lighter, less physically strenuous kind of work, beginning at 85¢ per hour, and after three raises his earnings had reached $1.2625 an hour on November 1, 1959. He also testified that he had tried but could not do heavy work since his injury, that picking up things that were not so heavy or just sitting, hurt his back; that he felt a sharp pain when he tried to pick up something heavy.
A physician testified that following claimant's injury it was necessary to remove his left kidney; that he did not believe the operation would interfere with claimant's employment; that from the claimant's history he thought he was a laborer, did heavy lifting and construction work.
In its award of compensation to claimant the director made findings of fact consistent with claimant's testimony, and further findings "that because of the accident suffered by the claimant he must seek employment with lighter duties such as he is now performing, therefore, I find that the reduction in the claimant's earning capacity was proximately caused by his accident and that he is entitled to compensation under Code Section 114-405," i.e., based upon the difference between his earnings before and after injury. On the hearing of the employer's appeal, the full board found that there was ample evidence to support the findings of the single director, and affirmed the award. The employer appealed to the Superior Court of Fulton County, and that court affirmed the award of the full board. On this judgment the employer assigns error.
The only ground upon which the employer assigns error is that the evidence was insufficient to support the findings of the board and award of compensation. The only question presented is whether the record contains any evidence that the claimant's earning capacity was diminished. Reeves v. Royal Indem. Co., 73 Ga. App. 2 ( 35 S.E.2d 473); United States Fidelity c. Co. v. Doyle, 96 Ga. App. 745 ( 101 S.E.2d 600); United States Fidelity c. Co. v. Maddox, 52 Ga. App. 416 ( 183 S.E. 570); Peninsular Life Ins. Co. v. Brand, 57 Ga. App. 526 ( 196 S.E. 264); Maryland Cas. Co. v. Brown, 48 Ga. App. 822 ( 173 S.E. 925). In the Workmen's Compensation Act, "disability" means impairment of earning capacity. Blue Bell Globe Mfg. Co. v. Baird, 61 Ga. App. 298 ( 6 S.E.2d 83); Lumbermen's Mut. Cas. Co. v. Cook, 69 Ga. App. 131, 136 ( 25 S.E.2d 67); Riegel Textile Corp. v. Vinyard, 88 Ga. App. 753, 755 ( 77 S.E.2d 760). It is true, as the defendant contends, that physical disabilities other than those specified in Code Ann. § 114-406, unaccompanied by impairment of earning capacity are not compensable. However, physical disability not specified in Code Ann. § 114-406, resulting in total or partial loss of earning capacity, is compensable under Code Ann. § 114-404 or 114-405. Employers Liability Assurance Corp. v. Hollifield, 93 Ga. App. 51 ( 90 S.E.2d 681).
In this case there was some evidence to support an award for partial disability ( Riegel Textile Corp. v. Vinyard, 88 Ga. App. 753, supra) particularly the testimony that the claimant was no longer able to do heavy work; that he was earning a lower wage doing lighter work; and that the employer was unwilling to reemploy him because of his injury. It is noted that the employer offered no evidence to contradict this last-mentioned testimony. When there is medical testimony "to the effect that in the physician's opinion the employee was able to return to work," and the employee's testimony is "to the contrary," the evidence supports a finding of disability. Fidelity Cas. Co. v. King, 104 Ga. App. 261 ( 121 S.E.2d 284).
Judgment affirmed. Felton, C. J., and Bell, J., concur.