Opinion
40484.
DECIDED JANUARY 28, 1964.
Workmen's compensation. Fulton Superior Court. Before Judge Foster from Tallapoosa Circuit.
Aynes, Myers O'Brien, Paul C. Myers, for plaintiff in error.
Greene, Neely, Buckley DeRieux, Burt DeRieux, contra.
1. Where oral testimony as to the contents of documentary evidence is admitted without objection, any error in admitting or considering the documentary evidence is harmless.
2. Although an accidental injury is stipulated in a workmen's compensation case, the burden of proving any incapacity to labor as a result thereof is upon the claimant.
DECIDED JANUARY 28, 1964.
The claimant was injured on May 31, 1961, moving a heavy drum while engaged as a dock worker for Roadway Express, Inc., a self insurer under the Workmen's Compensation Act. The claimant was treated by a physician furnished by the employer on the date of the injury and the day following. There was no medical evidence of any further treatment for such injury. The claimant returned to work and continued to work for a period of time. He later developed an absentee record and after being warned successively about such absenteeism was told that before he could return to work he must secure a doctor's certificate certifying his illness. No certificate was furnished and the claimant's services were thus terminated. The claimant sought unsuccessfully to have his union fight such dismissal and thereafter, but within one year of the injury, filed the present claim for workmen's compensation. The deputy director hearing the claim found the claimant had not carried the burden of proving that he was entitled to benefits under the Workmen's Compensation Act. The full board, on appeal, adopted the findings of fact and award of the deputy director. On appeal to the superior court the award of the full board was affirmed and error is now assigned on such judgment.
1. The claimant's first contention is that the hearing director, and later the full board, based the finding of fact upon exhibits identified and placed in the record but not actually introduced in evidence or, if tendered for introduction, expressly excluded from the evidence upon objection made by the claimant.
While the award referred to the information shown by the exhibits, any error in referring to such exhibits was harmless to the claimant, for the transcript of the claimant's oral testimony shows the same facts as the exhibits referred to in the award. See New York Life Ins. Co. v. Ittner, 62 Ga. App. 31 (4) ( 8 S.E.2d 582); Healan v. Powell, 91 Ga. App. 787, 790 ( 87 S.E.2d 332).
2. The fact that the accidental injury was stipulated does not preclude the employer from contending that the present disability did not stem from such original injury, Pepperell Mfg. Co. v. Mathis, 92 Ga. App. 85 ( 88 S.E.2d 201), and the burden is on the claimant to show that the injury for which compensation is sought arose out of and in the course of employment before compensation can be legally awarded the claimant. Roberts v. Lockheed Aircraft Corp., 93 Ga. App. 440, 441 ( 92 S.E.2d 51). See also Hughes v. Hartford Acc. c. Co., 76 Ga. App. 785, 791 ( 47 S.E.2d 143), where it was held: "After considering all the facts and circumstances of this case, the director found that the claimant had failed to carry the burden of proof of showing that his injuries arose out of his employment. Findings of fact made by the board within its power are, in the absence of fraud, conclusive, if supported by any competent evidence ( Code § 114-710), and are binding on the courts. `In such a case, not only may an issue of fact arise from contradictory evidence, but contrary implications consistent with the testimony may arise from the proved facts; and in still other ways the question of what is the truth may remain an issue of fact despite uncontradicted evidence in regard thereto.' Liberty Mut. Ins. Co. v. Blackshear, 197 Ga. 334, 336 ( 28 S.E.2d 860); Cooper v. Lumbermen's Mut. Cas. Co., 179 Ga. 256, 261 ( 175 S.E. 577); Employers Liability Assurance Corp. v. Woodward, 53 Ga. App. 778 (3) ( 187 S.E. 142); Merry Brothers Brick Tile Co. v. Holmes, 57 Ga. App. 281, 284 ( 195 S.E. 223). This court, in reviewing an award made by the full board denying compensation to the claimant, must accept that evidence most favorable to the employer, and, if there is any competent evidence to authorize the award, it must be affirmed. Merry Brothers Brick Tile Co. v. Holmes, supra; Glens Falls Indemnity Co. v. Sockwell, 58 Ga. App. 111 ( 197 S.E. 647)."
The burden was upon the claimant to show that he was incapacitated to labor, or had been since the accidental injury, and that such incapacity was the result of the accidental injury suffered over a year before the hearing was held.
The evidence adduced was conflicting and the testimony of the claimant was itself vague and equivocal. There was evidence adduced to authorize the finding that the claimant was fired for continuously being absent from work and that no incapacity to labor resulted from the injury occurring on May 31, 1961. Accordingly, the judgment of the superior court affirming the award of the State Board of Workmen's Compensation must be affirmed.
Judgment affirmed. Hall and Russell, JJ., concur.