Opinion
33667.
DECIDED JULY 16, 1951.
Appeal; from DeKalb Superior Court — Judge Vaughn. April 27, 1951.
Neely, Marshall Greene, for plaintiff in error.
Harry Monroe, T. Elton Drake, John M. Williams, contra.
1. The court may look to the whole record to determine the date of the injury for which compensation is sought, and if such date is established by this method and is shown to be within one year of the filing of the claim, it does not matter that the claimant, who testified he did not remember the exact date, erroneously testified on the initial hearing before the Board of Workmen's Compensation as to the date of the accident.
2. Contradictory statements made out of court in another transaction will not estop the claimant in a workmen's compensation proceeding, but are impeaching in character, and the credit to be given his testimony must be determined by the fact finding body.
3. In the absence of fraud, an award of the Board of Workmen's Compensation will not be reversed where supported by competent evidence.
DECIDED JULY 16, 1951.
The claimant in this workmen's compensation case, William Ralph Deaton, through his attorney filed a claim against his employer, General Motors Corporation, with the Board of Workmen's Compensation "for compensation following an injury which occurred in November, 1949." The claim was filed on May 25, 1950. At the hearing the claimant testified that his employment consisted in using an electric screwdriver with motor attached, weighing between ten and fifteen pounds, to tighten screws on automobile doors and posts on an assembly-line basis, the cars passing at the rate of 39 per hour; that he had done this work since April, 1948; that in November, 1949, he slipped on a floor on which gasoline had been spilled, that both feet went out from under him and he prevented himself from falling by catching a jig rack with his right hand, thus wrenching his back; that this was on a Friday and the following Monday he went to the first-aid clinic and a diagnosis of acute back strain was made. The claimant lost no time from work following this accident, but in March, 1950, the screwdriver he was using broke and he dropped it; that this wrenched his back again and the pain became worse; that he went home and the following Monday went to Dr. Joiner; that he later went to Dr. Fincher; that he suffers intense pain in the lower back and right leg, together with numbness and a tingling sensation; that he was unable to work during a part of March and April, but then went back and worked for about three weeks, remaining in pain all the time, and was then forced to quit work. The employment record on his return showed the reason for the absence as "flu and sciatica." Dr. R. H. McClung, who examined the claimant on June 14, 1950, found pain in the lower back, right hip and lower extremity with numbness, muscle spasm, moderate scoliosis of the spine and pain of the sciatic nerve. In his opinion the witness's condition was a ruptured disc produced by trauma. This diagnosis was also reached by Dr. Harwell Joiner and Dr. Ed. Fincher, a neuro-surgeon. Dr. J. V. Kelly, the company physician, found no symptoms of disc lesion and believed the sciatica to be of infectious origin.
Hearing of the case was continued until August 29, 1950, at which time the company records were produced and from these it was established that the first accident did not occur in November as the claimant and his fellow workers had testified, but on August 26, 1949. The claimant, however, had testified at the first hearing that he did not remember the exact date, except that it was on a Friday, but thought it was in November. He further testified that he went to the clinic following the accident and that the records kept by the clinic which were in the possession of the employer would reveal the exact date. It further appeared that the second accident, immediately following which the claimant went to his physician, occurred on April 18 rather than in March.
On March 1, 1950, the claimant filed a claim for sickness and accident benefits for a non-occupational disability under his group-insurance policy, concerning which he testified at the hearing that he thought he was signing for workmen's compensation at that time. The statement filed by the claimant to secure benefits under this policy of insurance was in direct conflict with this claim for occupational disability.
The deputy director hearing the case awarded compensation for total disability for a period of 350 weeks or until a change of condition, which award was affirmed by the full board and, on appeal, by the Judge of the Superior Court of DeKalb County. The exception is to this ruling.
1. It is the contention of counsel for the plaintiff in error that as the injury on which the award was based occurred on August 26, 1949, and as no claim was ever made for an injury occurring on this date until the second hearing before the board on August 29, 1950, the claim is barred because not filed within one year as provided by Code § 114-305. There is no dispute but that the injury for which the claimant sought to obtain compensation was that resulting from an accident in 1949 when he contended that he slipped on gasoline spilled over the floor, and which accident he reported to his employer, and for which he received first-aid treatment. The claimant and other witnesses erroneously placed this occurrence in November instead of August, 1949, but stated that they did not remember the exact date and were acting on their belief of what the company records showed. These records were not produced until the second hearing, under legal process. As in General Motors Corp. v. Pruitt, 83 Ga. App. 620 ( 64 S.E.2d 339), it must be held that while the claimant did not remember the exact date and erroneously testified as to it, examination of the whole record conclusively shows the date on which he was injured and received treatment from his employer. The testimony of Dr. McClung was to the effect that the claimant was suffering from a disc lesion, which is always traumatic in origin, and that this injury, aggravated by the second wrenching strain on his back at the time he dropped the screwdriver, was the cause of the disability. The fact that Dr. McClung was also under the erroneous impression that the first injury occurred in November instead of August does not invalidate his testimony, it appearing from the testimony as a whole that he was basing his opinion on the fact of injury rather than the time of injury, and that the claimant told him when he came for examination that he did not remember the exact time. Since the date is definitely established by the record as a whole, and since a claim was made within twelve months of that date, the claim was filed with the Board of Workmen's Compensation in time.
2. The fact that the claimant claimed disability insurance under a group policy for sickness which was non-occupational in origin does not estop him from claiming in this proceeding that the disability is caused from an accident arising out of and in the course of his employment, as this is a matter between himself and the insurance company. It is impeaching in character, being a contradictory statement made out of court and in the course of another transaction, and the weight and credit of his testimony in view of this prior contradictory statement is a matter for the fact-finding body to determine. See Bankers Health Life Ins. Co. v. Nichols, 44 Ga. App. 536 (1) ( 162 S.E. 161); Haywood v. State, 114 Ga. 111 (1) ( 39 S.E. 948); Code, § 38-1806. The claimant testified that at the time he signed the papers he was under the impression that he was signing for "compensation," and it would appear that this explanation was accepted by the director.
3. Of the four physicians whose testimony or reports were admitted in evidence and considered by the director, all were of the opinion that he was disabled. Three found this disability to be the result of a ruptured lumbar disc, and one found no evidence of a disc lesion. Of the three who diagnosed a ruptured disc, two were not definite as to whether the injury of August, 1949, or of April, 1950, was the proximate cause, but apparently attributed it to the latter. The third was definite that the 1949 injury, aggravated by the 1950 injury, was the cause of the disability. The director found that the injury of August 26, 1949, was the proximate cause of the disability and awarded compensation beginning May 31, 1950. Had he found that the injury of April, 1950, was the proximate cause, or that the two injuries together constituted a proximate cause, the result would have been the same. The fact of disability is not disputed, and that it arose out of and in the course of the employment is amply supported by the medical testimony and that of the claimant and his fellow employees. That the injury of August 26 specifically was a contributing proximate cause of the disability is authorized under the testimony of the claimant and Dr. McClung. Accordingly, the award of the Board of Workmen's Compensation is supported by competent evidence, and the Judge of the Superior Court of DeKalb County did not err in affirming the same.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.