Opinion
43452.
SUBMITTED FEBRUARY 6, 1968.
DECIDED MARCH 15, 1968. REHEARING DENIED MARCH 28, 1968.
Workmen's compensation. Fulton Superior Court. Before Judge Pye.
Smith, Cohen, Ringel, Kohler, Martin Lowe, Williston C. White, for appellants.
James O. Goggins, for appellee.
1. The evidence in this workmen's compensation case authorized an award for claimant based on a change in condition.
2. Findings of fact reported by the board sufficiently complied with Code § 114-707.
SUBMITTED FEBRUARY 6, 1968 — DECIDED MARCH 15, 1968 — REHEARING DENIED MARCH 28, 1968.
The claimant was injured on July 5, 1965, when thrown from a horse. The parties entered into an agreement for compensation, which was approved by the board, and compensation was paid accordingly until September 23, 1965, when the employer filed application to determine a change in condition. Following a hearing on December 8, 1965, the board found that claimant was no longer incapacitated from the injury and issued an award authorizing the employer to cease payments as of the date of application for the hearing. Claimant thereafter filed application to determine a change in condition and a hearing was held on November 15, 1966. The board found that claimant had shown a change in condition and issued an award ordering the employer to recommence payment of compensation for total incapacity.
1. The depositions of Dr. Eubanks and Dr. Addison, who examined claimant prior to the first hearing, were introduced in evidence on both hearings. These witnesses testified that claimant, who had sustained fractures of transverse processes of the spine, had sufficiently recovered to return to work prior to application for the first hearing. But the testimony of Dr. Davie and Dr. Williams, which was introduced at the second hearing, indicated total incapacity and showed that claimant was suffering from a herniated intervertebral disk when the latter witnesses examined claimant after the first hearing. Dr. Williams testified that herniation of the disk could have occurred long after the initial injury. Thus Dr. Williams and Dr. Davie did not denote a mere change in diagnosis precluding actual change in claimant's physical condition. Cf. Miller v. Hartford Acc. c. Co., 86 Ga. App. 503 ( 71 S.E.2d 782); Employers Mut. Liab. Ins. Co. v. Sheets, 105 Ga. App. 734 ( 125 S.E.2d 569). The testimony of Dr. Williams, taken in connection with the testimony of claimant, Dr. Eubanks and Dr. Addison, hypothetically showed that a change in condition occurred after the first hearing and that the incapacity present at the second hearing was due to the compensable injury.
The employer contends that the testimony of physicians who had not examined claimant at the time of the previous hearing was not sufficient to prove a change in condition. See Phinese v. Ocean Acc. c. Corp., 81 Ga. App. 394 ( 58 S.E.2d 921). Accord, Fletcher v. Aetna Cas. c. Co., 95 Ga. App. 23, 24 ( 96 S.E.2d 650); Travelers Ins. Co. v. Boyer, 102 Ga. App. 248, 250 ( 116 S.E.2d 6). But the rule stated in Phinese does not apply where the board has before it evidence furnishing a basis for comparison of claimant's condition before and after the alleged change took place. Hartford Acc. c. Co. v. Dutton, 116 Ga. App. 535, 536 ( 158 S.E.2d 272). "Phinese . . . does not mean that the physicians' testimony based upon examination at the time of subsequent hearing is insufficient to prove the subsequent condition independently of other evidence. It is proof of the claimant's condition at the time of the subsequent hearing. . . And where the previous condition is shown by other competent evidence proving a different condition, the board is authorized to find that a change has taken place." Waters v. National Biscuit Co., 113 Ga. App. 170, 175 ( 147 S.E.2d 676). See also American Mut. c. Ins. Co. v. Grimes. 100 Ga. App. 51, 52 ( 109 S.E.2d 837); Federal Ins. Co. v. Spooner, 107 Ga. App. 175, 176 ( 129 S.E.2d 214).
Where a change for the worse in claimant's physical condition was shown by competent evidence, the new award was authorized notwithstanding that claimant testified his condition was worse at the second hearing but that he was totally incapacitated at the time of both hearings. U.S. Fidelity c. Co. v. Wilson, 103 Ga. App. 674, 675 ( 120 S.E.2d 198); Magnus Metals Division v. Stephens, 111 Ga. App. 448, 450 ( 142 S.E.2d 123).
2. The award of the board stated: "We find as a matter of fact that the claimant in this case has clearly shown a change in condition. . . He had an accidental injury when the horse he was riding got in to a yellow jacket nest and threw him off, and it is certainly more reasonable to believe that his disability is a result of his injury than any of the other facts shown. . . This claimant has been totally disabled and is still totally disabled to work."
"Legal precision and nicety in the report should not be insisted upon," and if the report is subject to two constructions, one which would render the award invalid and one which would with equal reason render it valid, it "should be construed, after judgment, to be that which will make the judgment valid." Southeastern Exp. Co. v. Edmondson, 30 Ga. App. 697, 700, 703 ( 119 S.E. 39); Maryland Cas. Corp. v. Mitchell, 83 Ga. App. 99, 101 ( 62 S.E.2d 415). Moreover, it is not necessary to recommit a case to the board because of its failure to make findings of fact on issues as to which the facts disclosed by the record are undisputed. Employers Liab. Assur. Corp. v. Montgomery, 45 Ga. App. 634 (2) ( 165 S.E. 903); McDaniel v. Employers Mut. Liab. Ins. Co., 104 Ga. App. 340, 341 ( 121 S.E.2d 801). We construe the finding that "it is certainly more reasonable to believe" as a finding in accordance with the more reasonable alternative. The finding that "claimant has been totally disabled" is construed to mean subsequently to the first hearing rather than from the date of injury. There was no substantial issue as to the precise nature of the change in condition, if any. We think the findings of the board sufficiently complied with the Act ( Code § 114-707). See generally, Lee v. General Acc. Group, 112 Ga. App. 197, 198-200 ( 144 S.E.2d 457).
The superior court did not err in affirming the award granting compensation.
Judgment affirmed. Hall and Quillian, JJ., concur.