Opinion
39127.
DECIDED NOVEMBER 27, 1961.
Workmen's compensation. Columbia Superior Court. Before Judge Anderson.
Smith, Field, Ringel, Martin Carr, Charles L. Drew, for plaintiffs in error.
Jack D. Evans, contra.
1. ( a) The finding by the board that the injury sustained by the claimant was proximately caused by noncompensable "horseplay" was supported by the evidence.
( b) The erroneous finding of the date of the "horseplay" is immaterial, since compensation for disability resulting from the "horseplay" would not be allowable. The authorized finding by the board that the injury was the proximate result of the "horseplay" bars compensation.
2. The finding that the claimant did not carry the burden of proof to show that the accident arose out of and in the course of employment was supported by competent evidence, and is binding on all courts.
3. Where an employee is the aggressor in "horseplay," it is immaterial that his opponent be his supervisor. In such a situation the board properly denied compensation.
DECIDED NOVEMBER 27, 1961.
Claimant filed this application for workmen's compensation benefits against the defendants on the basis of an injury sustained on May 26, 1959. The claimant testified to an injury on that date which occurred while he was carrying some material across the floor in a hurry, when he tripped and fell. He stated this caused a sensation "like needles popped in my backbones," causing pain. He testified that although in pain, he kept on working for seven to eight months afterwards; that after treatment by several doctors, his condition was diagnosed as a slipped disc; and that he last worked on March 20, 1960 (later identified as March 25, 1960). During the course of three hearings held on the claim, the defendants offered the testimony of a witness, a ripsaw operator for whom the claimant worked as a tail man on the saw. This witness testified that he saw the claimant fall one time "later on after he was dismissed from the doctor, he was back — back working. . ." This fall was identified as occurring "when they was in a wrestling match." The opponent was identified as the push foreman. The witness testified that the claimant ran up behind the foreman, caught him backhanded, and picked him up on his hip; that it made the foreman mad; the claimant had the foreman down on the dirt on the floor; that the foreman came back and knocked off the claimant's hat; that during this wrestling match the claimant fell; that the claimant threw the foreman down and they both fell to the floor together; that during the scuffling the foreman was mad with the claimant and when they were on the floor together the foreman was twisted, "he twisted him off the ground;" the foreman reached up and hit the claimant and knocked his cap off; that prior to falling, the claimant had run up behind the foreman and caught him in an armlock "mostly staggering," and both then fell down; that the foreman fell on the claimant's legs and across his stomach down on the floor; the claimant twisted the foreman by the neck, and during this time the foreman hit him "backhanded"; and that claimant then picked up his hat and went back to the saw. The claimant's opponent in the wrestling match was identified as being "in charge." This "horseplay" was identified as having occurred in March of 1960.
Following the testimony of the claimant and the other lay witnesses, the hearing was continued for the purpose of taking medical testimony in Augusta, Georgia. Dr. [M], a neurological surgeon, testified that he examined the claimant on March 28, 1960, that the examination indicated the claimant had a herniated disc; that he hospitalized the claimant; that a myleogram was performed; that the myleogram revealed that claimant had a spinal defect at the L5-S1 interspace on the right, probably with the herniated disc; that after a few days he was readmitted for surgery, and after that was dismissed from the hospital a week later; that after the operation he continued to complain of pain and needs further surgery, and that he is not able to go back to work. In response to a hypothetical question describing the "horseplay" episode mentioned above, this doctor testified that it could have been the probable producing cause of the claimant's "acute" status, and that it was in the realm of medical probability rather than a possibility.
Dr. [K] testified that he treated the claimant on several occasions beginning on May 26, 1959; that the claimant returned for three other office visits after he failed to keep one appointment; he failed to keep an appointment after the three visits, and he came back on August 3, 1959, at which time he was dismissed as well of the disease for which he had been under treatment and observation, and at that time stated that his back was no longer bothering him; that claimant returned to him in February and March, 1960, complaining of pain in the upper part of his back; and that this recurrence of the muscular strain was evidently from the occurrence of a further injury.
The deputy director issued his notice of award finding that the claimant's accident of May 25, 1959, resulted in injury to certain muscles; that this injury arose out of and in the course of employment; that he lost no compensable time from the time of that injury to the time he quit his job on May 25, 1960, and thus ordered the employer to pay the medical and doctor bills incurred by the claimant for treatment for this injury. It was further found that no competent evidence was adduced by the claimant to show that the "low spine condition at L5-S1" arose out of and in the course of the claimant's employment, nor was the alleged accident and injury of the muscles in the accident of May, 1959, the precipitating cause of the spinal condition found in March, 1960. It was further found that the wrestling match the claimant engaged in "on or about March, 1959", could have produced the low spine condition; and that there was no testimony to rebut this contention. It was found that the wrestling episode was the proximate cause of the "L5-S1" condition revealed by the examination of Dr. [M]. The findings continued: "I further find that claimant has not carried the burden of showing that the injury to his spine at L5-S1 arose out of and in the course of his employment with defendant herein. Accordingly, the claim for compensation, medical, hospital and doctor bills in this connection must be denied. However, claimant is entitled to have his doctor and medical bills owed to Dr. Kelly for his care and treatment paid by the defendant herein." The award then concluded by ordering the payment of medical and doctor bills incurred from May, 1959, but denying the claim for medical, hospital, and doctor bills incurred by the claimant after March 28, 1960, and denying compensation since the claimant lost no compensable time for his muscle strain, and "he failed to carry the burden of showing the L5-S1 condition arose out of and in the course of his employment with defendant herein, and the same is dismissed."
The claimant appealed to the full board which unanimously affirmed the award of the deputy director and made the deputy's findings of fact the findings of the full board.
The claimant then appealed to the Superior Court of Columbia County, which, after hearing, in a written opinion pointed out that the evidence failed to support the findings of the board that the wrestling episode took place in or about March, 1959, but instead the evidence showed that the wrestling episode took place in March of 1960. The court then held that in view of the further finding that this episode was the proximate cause of final injuries suffered by the claimant, the failure to designate the correct date thereof was such error as to require reversal of the order of the board. In reaching this conclusion the trial court held that the finding of fact on the wrestling episode was material and vital, and without evidence to support and sustain it, pointing out that if the claimant should finally receive a favorable decision in the case "it is readily seen that the statute of limitations could be invoked to defeat the claim if the record should be permitted to show on its face that the injury occurred ( March, 1959) more than twelve months prior to the time of filing of the claim ( May, 1960)."
The trial judge in his order of reversal further held that the concluding part of the award finding that the claimant had not carried the burden of showing that the injury to his spine arose out of and in the course of his employment with the defendant was based on an erroneous assumption of law as to which party had the burden. The third ground the trial court assigned for reversal was based on the fact that the recital of evidence showed that the claimant wrestled with a fellow employee, while the brief of evidence did not show this to be the case but rather that the employee was wrestling with the foreman of the plant. The trial judge accordingly reversed the award of the board, to which ruling the defendants excepted.
1. The first ground upon which the superior court reversed the award of the State Board of Workmen's Compensation was that the evidence failed to support the finding of the board that the wrestling episode took place in March, 1959, when in fact it took place in March of 1960. In view of the finding that this incident was the proximate cause of the final injury suffered by the claimant, the court held the failure to designate the correct date was error sufficient to require reversal of the order of the board. We disagree with this premise.
Upon appeal from an order of the board granting or denying compensation, the decision of the board cannot be set aside if there is any evidence to support it unless one, or more, of the other grounds of reversal authorized in Code § 114-710 is present. "In reviewing an award by the full board denying compensation, this court must accept that evidence most favorable to the employer." Austin v. General Acc. Fire c. Corp., 56 Ga. App. 481 ( 193 S.E. 86). Since the award is in favor of the defendant, the claimant cannot cause it to be set aside if there is any evidence to support it. Before the claimant can cause the award to be reversed and set aside, a finding for compensation must be demanded by the evidence. Whitener v. Baly Tire Co., 98 Ga. App. 257 ( 105 S.E.2d 775).
The controlling and decisive fact found by the board was that the injury was proximately caused by the "horseplay." The evidence justifies this finding. It is compatible with this finding that compensation was not allowable for the injury. While the board obviously erred in finding as a fact that the wrestling episode occurred in March, 1959, since the evidence clearly shows it occurred in March of 1960, the controlling fact found was that the injury proximately resulted from this "horseplay," and the apparent mistake as to the date it was found to have occurred is immaterial. Whether the injury occurred before or after the other accident testified to by the claimant, the authorized finding by the board that the injury was the proximate result of the "horseplay," bars compensation.
The evidence in the record supports the denial of compensation. The trial court erred in reversing the award of the board on this ground.
2. The second ground of the trial judge's order of reversal was that the concluding part of the award finding that the claimant had not carried the burden of showing that the spinal injury arose out of and in the course of his employment was based on an erroneous assumption of law as to which party had the burden.
In this view, too, we think the trial court erred.
It is elemental that the burden of proof is on the claimant in a workmen's compensation case to prove that the accident arose out of and in the course of employment. It is equally well settled that the burden of proof is upon the employer who claims that compensation is not payable because of the employee's wilful misconduct. See Code § 114-105.
In this case the evidence is consistent with either of these two rules regarding the burden of proof.
In attempting to carry his burden, the claimant testified to an accident which occurred to him while at work. At the time, the duties of his employment were that he was "waiting on a man who is operating the saw and picking up scraps and getting them out of the way." He testified: "A. Well, I had turn of stuff, took it off the saw there, and was carrying it across the place, back there, where the pallets are at, and I was going across there in a hurry to get back to the saw, and a strip on the floor, it hung on my breeches leg and it throwed me and I tried to miss it, stuff going on my arms and that is when the thing felt like needles popped me in my backbone."
This testimony, in substance reasserted numerous times, was sufficient to have authorized a finding that the claimant had carried his burden of proof that the injury had arisen out of and in the course of his employment.
This testimony with respect to the "horseplay" episode (which if offered as a defense by the employer would have placed the burden of proof upon him) was first elicited by claimant's counsel on cross-examination from the defendant's witness, Robert Taylor. On redirect examination Taylor testified: "Q. Who was he [the claimant] wrestling with? A. Milton D. Mall was push foreman before I become fully in charge of the saws. Q. Push foreman? A. We call him `little boss.' Q. When were they wrestling in connection with when Mr. Gay claims he got hurt? A. I don't know, sir, not up to the day, but it was after he come back with the second claim to Doctor Kelley, and he run up behind Milton D. Mall, caught him backhanded, and picked him up on his hip and Mall, it made him mad, and Gay had him down on the dirt on the floor, and he come back and knocked Gay's hat off and Gay jumped up and run back to the saw, and Milton turned around and couldn't — continued what he was doing." Again, on recross-examination, Taylor testified: "A. Melvin [claimant] run up and throwed him across his hip and throwed him backward and Milton come down backwards on him. . . Q. Melvin [claimant] throw Milton D. Mall on himself? A. That's right."
This testimony on the "horseplay" incident was paraphrased into a hypothetical question and asked of Dr. [M] as to whether the doctor thought the instance was a probable producing cause of the claimant's acute status. To this inquiry the doctor replied that he thought it was in the realm of medical probability rather than a possibility.
The evidence relating to the "horseplay" (while sufficiently adequate to have authorized the board to find, if it had chosen to do so, that the employer had carried his burden of proof that compensation was barred by the employee's wilful misconduct) was contradictory of the testimony of the claimant that he was injured when he fell "getting scraps out of the way." Viewed in the light that it is contradictory testimony, the evidence regarding the "horseplay" incident was sufficient to authorize the board to disbelieve the claimant's testimony, and in logical sequence to find as a matter of fact that the claimant had not carried his burden of proof that the injury of which he complained arose out of and in the course of his employment.
It follows that this finding, securely based on the evidence, bars an award of compensation to the claimant. Fidelity c. Co. v. Scott, 215 Ga. 491, 495, 496 ( 111 S.E.2d 223); American Mut. Liability Ins. Co. v. Harden, 64 Ga. App. 593, 595 ( 13 S.E.2d 685).
3. The third ground assigned by the trial court in reversing the award was based on the recital of evidence in the award to the effect that the claimant was seen wrestling with a fellow employee. In actuality, as the court viewed it, the brief of evidence does not show this to be the case, but rather that the employee was wrestling with the foreman of the plant.
The evidence shows the person with whom the claimant was wrestling was variously identified as a "push foreman" and again "in charge" and again "little boss." Whether he was the claimant's superior or supervisor we think is quite immaterial, since the uncontradicted evidence shows the claimant to have been the aggressor in the altercation. The board was justified in denying compensation.
The claimant in his brief contends that he was not permitted to go into the matter of the wrestling episode; however, this is not borne out by the record, which shows: that the claimant testified; his counsel was present; and afterwards a witness of the defendant testified to the wrestling episode. Still other witnesses were examined and cross-examined at length. At the conclusion of the hearing, his counsel stated, "That is all," and the record does not reveal any attempt or request by the claimant to be permitted to rebut the testimony as to the wrestling episode.
For the reasons indicated, the superior court erred in reversing the award of the board.
Judgment reversed. Felton, C. J., and Hall, J., concur.