Opinion
28363.
DECIDED DECEMBER 20, 1940.
Appeal; from Murray superior court — Judge Mitchell. February 1, 1940. (Application to Supreme Court for certiorari.)
T. Elton Drake, Edward B. Lovell, for plaintiff in error.
W. B. Robinson, R. Noel Steed, contra.
The superior court did not err in sustaining the appeal from the award of the Industrial Board.
DECIDED DECEMBER 20, 1940.
On January 17, 1939, at the request of the employer and insurance carrier, a hearing was had in the matter of the claim of Earl Q. Wilbanks against the Georgia Talc Company, employer, and Bituminous Casualty Corporation, insurance carrier, to determine the amount of compensation properly payable under the workmen's compensation act to the employee as the result of an accidental injury sustained by him on December 16, 1937. It was admitted that the accident arose out of and in the course of the claimant's employment, and that by agreement he had been paid full compensation for thirty-nine weeks. The employer contended, however, that the claimant's disability had ceased and that he was able to again engage in competitive employment. On the other hand the claimant contended that he was unable to resume such employment in that he was still disabled as a result of the accidental injury sustained by him in December, 1937.
Dr. R. E. Newberry testified in part as follows: "Mr. Wilbanks came to my office on September 30, 1938, for examination with reference to an injury sustained on December 16, 1938 [1937?], at which time he sustained a rather severe injury to the right side of his face. He stated that a windlass handle of a windlass flew back and struck him on the right cheek, and that he was knocked unconscious and remained so for about twenty-four hours, and that he had been disabled since that time. In addition to the injury to his face, which was a crushing injury to his cheek bone injuring the antrum, also a fracture of one of the ribs on the left side, which had healed. The claimant at that time stated that he had loss of sensation over the right side of his face, which terminated at the median line. . . He claimed he had been disabled from the date of the injury until the time of my examination on December 30, 1938. . . He had no serious illnesses nor no operations, no hernias. He complained of headaches, especially in the right occipital region. The right side of his face is deformed due to the fracture and the right side of his face showed a loss of sensation over this area. However, he states that this is improved in the last few months. His teeth were in bad condition. I advised him to have these teeth removed. His chest was clear. His heart was negative. This man had a bad odor to his breath which I believe was due to the infection around his teeth which I thought would benefit him to have them removed. An x-ray was made, which showed no evidence of any osteomyelitis or any loose fragments of bone penetrating the antrum. . . I did not see him again until today. At this time his condition is essentially the same. That is, he had no temperature and blood pressure and the heart are all right. He says this condition in his face is about the same; that it is worse when he has a cold. In other words, this discharge is aggravated or increased by a cold, and that he still has some discharge from this antrum on the outside of his teeth. . . Of course we feel that he has some cosmetic loss, but functionally I see no reason why the man could not work. In other words, the depression in his face and the disturbance of his nerves that supply this area I don't believe is disabling. . . From the history and also consultation with Dr. Fincher who examined him in January, I would be inclined to believe the man did suffer a concussion as well as a fracture of his cheek, because he was unconscious. Now, injuries of this type usually cause a disability of around two or three months. . . Since there is no evidence of any further involvement now except the subjective complaint of pain, headache, I would think that had cleared up; and so far as the disability in his face or the deformity, that is of a permanent nature. . . He still has some hope of the regeneration of the nerves so that the sensation may improve in this right side of his face, but even with that I wouldn't feel he was not able to work. . . He is not able to distinguish heat and cold and sensation on the right side of his face like he can on the good side. . . On September 30 when I made the examination I believed that he was then able to return to his regular work. I have seen him this morning and I believe he could work. . . A cosmetic loss isn't a disability. I don't think there is any disability from labor. . . He has this deformity which is a cosmetic thing but not a functional thing, and I think he was disabled for several months. . . I think that so far as the injury was concerned he could work. This trouble that he has I think is the result of the injury. From the observation I have given this fellow and the history of the case I am willing to state irrespective of what he says, in the absence of any pathological findings, that he is able to perform manual labor. I did not treat this fellow any. I was not consulted until September 30. The only thing that I recommended, which I still recommend, is removal of those teeth. . . I did not go into his hearing. I referred him to a specialist."
The claimant testified in part as follows: "I did manual labor before I was hurt. I used a hammer and shovel. I am not physically able to go back to my work. There is no other work in my line as a day laborer that I have been able to do. I have got a blister here. It is two teeth up there and it is coming from back of the teeth, and it drains all the time. If it is cold weather, it seems like it freezes the whole side of my face. I can't stand cold weather. . . If I do anything I have the headache, and it seems like it makes it that much worse; it drains that much worse and my eye waters in the daytime. At night when I go in, if I look at a paper, I have to look at it with one eye. The lid gets so tired I have to shut it. If I do anything much around the house it lays me up. I feel like I am dead all over; don't feel like moving. At times at night I am nervous and can't sleep. . . Anything gets on my mind and worries me and keeps me from sleeping. This discharge that comes from back of these two teeth has a real bad taste. Sometimes it is not bad enough to run out and I have to swallow it. I can't spit off myself. Sometimes I get choked and bread crumbs get in there and it gags me and chokes me. Dr. Hackney said it wasn't anything he could do for it, that it would have to be operated on; that as long as that nerve was dead you would get in trouble if you went in there and as long as it was like it was let it alone. Dr. Hackney told me for that reason he was afraid to operate until conditions changed. If I close my eyes it gives me the headache and I am not balanced like I once was. I am out of balance. For a long time after I got up I had to be led around before I could go where I wanted to go, and still I ain't balanced. I can't spit off myself and can't call a hog or cow. I have that to do at home when I drive them up. That is about the only way it affects my speech. Some words I can't say plain. It seems like that side of my face is paralyzed, and I can put my hand up here and the nerves run through my face in the side of my tongue. I can feel them. This happened some thirteen months ago and I have not been able during that time, and am not able now for the reasons stated, to do any work."
The witness further testified that while he could use his hands, arms, and legs that he was unable to see out of one eye long at a time on account of the lid drooping. He testified that he could not walk a line, and that he got up one day and fell off the porch; that he can't get wood and do the general work a man has to do around his home in the country on a farm. There were submitted for consideration of the director certain statements of physicians relatively to the condition of the claimant, from which it appeared that he suffered "a complete right facial paralysis," occasional headaches, a drainage of pus around the upper teeth on the right side, as well as an injury to the hearing of his right ear. The statement of one physician dated January 12, 1939, showed in addition to a permanent facial paralysis that the claimant can not whistle, eat, or say certain words satisfactorily, that his right eyelid droops, and that his hearing on the right side is impaired about 50 per cent. Another statement dated November 9, 1938, stated that his hearing was permanently 35 per cent, off in the right ear. Dr. Hugh M. Lokey made a statement on November 3, 1938, that on a test with the audiometer the claimant showed a definite loss of 34 per cent. in the right ear which he believed was permanent. This physician stated that the chief complaint of the claimant to him was a loss of hearing. Dr. Hackney stated that he diagnosed the claimant's condition as "right sinusitis."
The director, based on the foregoing facts, found that the claimant was "physically able to return to his work and perform the regular duties of his employment and was suffering no compensable disability as the result of injury," and rendered an award denying the payment of any compensation other than that already paid. The claimant appealed to the full board where the award of the single director was affirmed. The claimant thereupon appealed to the superior court of Murray County, and on February 1, 1940, the judge of that court rendered the following judgment: "After hearing on the above appeal, and after a careful consideration of the record in said case, the court is of the opinion that the Industrial Board erred in its finding in the above case. The sole question for determination by the board was whether or not the claimant had recovered from an injury received in the course of his employment on December 16, 1937, so as to again follow his occupation. The commission held that from the evidence introduced that the claimant had recovered, and was, at the time compensation payments ceased, able to again follow his work that he was engaged in at the time he received his injury. This court holds as a matter of law that there is no evidence in the record upon which the commission could base a finding that the claimant was now able to follow his occupation. The burden being upon the employer to show a changed condition so as to stop payments to the claimant, the employer totally failed by any competent evidence to prove that there was any change in the condition of the claimant between the time of the injury and the date of the hearing. All of the testimony, that of the claimant as well as that of the doctors, without conflict, shows that the claimant is disabled from carrying on the kind of work which he was employed in at the time he received his injury. The evidence in the record without conflict shows that the claimant, since the date of his injury, has not followed any kind of work whatever, and that he has been unable to perform any work. The employer failed to prove that the employee could obtain employment for which he was physically fitted, or that he had refused such employment. For all of these reasons, the judgment of the Industrial Board in said case is reversed and set aside. It further appearing without dispute that his weekly wage was $14, it is ordered that the claimant do recover of the defendant in this case the sum of $7 per week from the date the compensation payments ceased to this date, and future payments at the rate of $7 per week during the continuance of the claimant's disability."
To this judgment the employer and insurance carrier excepted.
The hearing in this case was requested by the employer and the insurance carrier on the ground of a change in condition of the claimant for the better and that he had ceased to be disabled. They admitted that the burden was on them to establish these facts and assumed this burden on the hearing. The director found that the claimant's condition had changed, and that the employer and the insurance carrier were justified in discontinuing the payments of compensation to him under a former agreement for total disability. This award was approved by the full board but was set aside by the superior court on appeal. The only evidence on which the director could base the conclusion that the claimant had ceased to be disabled was the testimony of the physician for the insurance carrier who was put up as a witness, and whose testimony appears in the foregoing statement of facts. This physician testified that while the claimant had "some cosmetic loss" from the accidental injury sustained by him "functionally I see no reason why the man could not work." This physician further testified that "the depression in his face and the disturbance of his nerves that supply this area I don't believe is disabling," that "I don't think there is any disability from labor," and that "I think that so far as the injury was concerned he could work." This witness further testified that the claimant had an injury to the right side of his face, having sustained a severe blow and a concussion thereof, that he suffered a paralysis in that side of his face, that while he was disabled for several months that when he made an examination of the claimant on September 30, 1938, he believed he was able to return to work, and when he made an examination of him on the day of the hearing, which was January 17, 1939, "I believe he could work." The witness further stated that he did not treat the claimant, but that when the claimant was sent to see him he referred him to a specialist. This physician was not an ear, eye, and nose specialist. He testified that "from the observation I have given this fellow and the history of the case I am willing to state irrespective of what he says, in the absence of any pathological findings, that he is able to perform manual labor."
It appears conclusively from the evidence that the claimant suffered a severe injury by being hit in the right side of his face and head with a windlass which broke loose while the claimant was drawing up a bucket of heavy material out of the mine shaft at which he was working. It appears from the statement of specialists who were consulted by the claimant and who treated him that because of this blow from the windlass he sustained severe face and head injuries which produced, among other things, a definitely established right facial paralysis and loss of hearing in the right ear. This evidence is not in contradiction of the testimony of the doctor for the insurance carrier and employer, from whose testimony, in giving his opinion that the claimant was now able to work and was not suffering any disability from his injury, it does not appear that he made a pathological examination of the claimant. His testimony was based on the history of the case and his observation of the claimant "in the absence of any pathological findings." The claimant was a laborer and depended for a living upon employment requiring manual labor and physical effort, which required the use of his hands, legs, voice, sight, and hearing. It is not disputed that the claimant, according to his own testimony, on account of the injury to his face, head, and right ear at the time of the hearing, was physically unable to perform manual labor during cold weather; that exertion causes pain and causes his right eye to trouble him and his sight to become impaired; that slight physical exertion "lays" him "up" and causes him to "feel like" he is "dead all over, don't feel like moving;" that because of his facial paralysis he is unable to "spit off himself," and he gets "choked and bread crumbs get in there and it gags me and chokes me," that he is not balanced like he once was, that he is out of balance and that his speech is affected to the extent that he can not "call a hog or cow," and can not speak some words plainly. From the undisputed, uncontradicted statement of a specialist who examined the claimant on January 12, 1939, before the hearing it appears that the claimant's condition showed, in addition to a permanent facial paralysis, that he could not whistle, eat, or speak certain words with satisfaction; that his right eyelid droops, and that his hearing on the right side is impaired about 50 per cent.
We therefore conclude, under the undisputed evidence, that the insurance carrier and employer failed to carry the burden of showing that the claimant had recovered from the disability for which compensation had been paid to him by the carrier under a previous agreement between the claimant and the insurance carrier, and that it is conclusive that the claimant, at the time the insurance carrier ceased the payment of compensation to him, and at the time of the hearing, was suffering some disability. It therefore appears from the evidence in the case, and without contradicting the testimony of the physician for the insurance carrier, that the claimant's earning capacity as a "day laborer" was impaired at the time compensation payments ceased and at the time of the hearing. See Blue Bell Globe Mfg. Co. v. Baird, 61 Ga. App. 298 ( 6 S.E.2d 83).
The judgment sustaining the appeal of the claimant from the award of the Industrial Board and ordering that the compensation payments be continued is affirmed.
Judgment affirmed. Sutton and Felton, JJ., concur.