Opinion
36418.
DECIDED JANUARY 8, 1957.
Workmen's compensation. Before Judge Thomas. Glynn Superior Court. July 19, 1956.
Edward W. Killorin, James C. Hill, Robert R. Richardson, Gambrell, Harlan, Russell, Moye Richardson, for plaintiff in error.
Harry E. Monroe, contra.
The Superior Court of Glynn County did not err in affirming the award of the State Board of Workmen's Compensation which denied compensation to the claimant.
DECIDED JANUARY 8, 1957.
Fred C. Grooms filed a claim with the State Board of Workmen's Compensation in which he sought to recover from Atlantic Engineering Contracting Company, as the employer, and Pacific Employers Insurance Company, as the insurer, for an alleged injury to his back which he contended arose out of and in the course of his employment on August 9, 1955, while he was employed as a dragline operator by the employer.
On the hearing the claimant testified as to how the alleged injury occurred (while he was attempting to repair a dragline), what the injury consisted of, that an operation was performed on his back in Jacksonville, Florida, that he had previously strained his back while working for another employer but did not lose any time from it, that he strained his back while working in South Carolina and made a claim against his employer through the South Carolina Industrial Commission, but that he was out of work only for a few weeks. On cross-examination the employer and insurer introduced in evidence a sworn statement made in Jacksonville, Florida, which the claimant admitted making, in which he swore that he had never made a claim for compensation, and that he had never had an injury to his back. The employer and insurer also introduced in evidence an agreement approved by the South Carolina Industrial Commission and one approved by the North Carolina Industrial Commission which showed that the claimant had received over $1,650 in compensation for not less than three prior injuries to his back.
The physician who first treated the claimant after his alleged injury on August 9, 1955, testified, that the claimant gave him a history of the event causing his alleged injury (which was the same history as testified to by the claimant), that the claimant at that time complained of numbness in his legs and feet, that the claimant's feet were pricked with pins and a pitcher containing ice water was touched to the claimant's legs, that the claimant stated that he could feel only the touch of the pins and the pitcher of ice water, but that he could not feel the coldness of the ice water or the pins pricking him, that he diagnosed the claimant's complaint as a possible slipped disc or a slight roto-scoliosis in his low back, that he referred the claimant to a neurosurgeon in Jacksonville, that he had examined the claimant on the day of the hearing, that he found a scar where an operation had been performed on the claimant's back, and that in his opinion the claimant's ability to labor at the time of the hearing was nil.
The only other witness at the hearing testified, that he had been a dragline operator for ten or twelve years, that he operated the dragline being operated by the claimant at the time of his alleged injury immediately after the claimant's alleged injury, that the machine was in perfect operating condition at that time, that one man could not make the type of repair which the claimant testified he was making when he was allegedly injured, but that if the contended breakdown of the machine was not complete then it might be possible to correct it with the machine itself, but not in the manner which the claimant testified that he was making such repair.
The single director found in effect that the claimant had been impeached and did not carry the burden of proving a compensable injury. On appeal the full board also rendered an award denying compensation based on the same reasons as the award of the single director. The claimant appealed to the Superior Court of Glynn County, where the award of the full board was affirmed, and it is to this judgment adverse to him that the claimant excepts.
1. The testimony of the physician who first treated the claimant, with reference to the history of the claimant's alleged injuries related a narrative of the event given him by the claimant and was hearsay and without probative value although admitted without objection, as were the statements related by this physician as to "what the claimant said he could feel" when the claimant's feet were pricked with pins and when his legs were touched with a pitcher containing ice water. See in this connection, Augusta Summerville R. Co. v. Randall, 79 Ga. 304 ( 4 S.E. 674); Poole v. East Tenn., c. Ry. Co., 92 Ga. 337 ( 17 S.E. 267); Roach v. W. A. R. Co., 93 Ga. 785 (1) ( 21 S.E. 67); Hodge v. American Mutual Liability Ins. Co., 57 Ga. App. 403 ( 195 S.E. 765); Merritt v. Continental Casualty Ins. Co., 65 Ga. App. 826 ( 16 S.E.2d 612); Goodwyn v. Central of Ga. Ry. Co., 2 Ga. App. 470 (1) ( 58 S.E. 688); Atlantic Coast Line R. Co. v. Marshall, 93 Ga. App. 134 ( 91 S.E.2d 96).
2. In the present case where the claimant was seeking to recover for an injury to his back which allegedly arose out of and in the course of his employment, and where he was the only witness to testify that he had received an injury as contended, and his testimony as to material issues was impeached, it cannot be said that the board was without authority to find that he had failed to carry the burden of proving that he had sustained an injury arising out of and in the course of his employment. The weight to be given to testimony after a witness, or a party, has been impeached is for the determination of the fact-finding tribunal. See, Swift Co. v. Hall, 94 Ga. App. 239 ( 94 S.E.2d 145), and cases cited.
Therefore, the Superior Court of Glynn County did not err in affirming the award of the full board denying compensation to the claimant.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.