Opinion
53201.
ARGUED JANUARY 11, 1977.
DECIDED FEBRUARY 17, 1977.
Workmen's compensation. Thomas Superior Court. Before Judge Calhoun.
Savell, Williams, Cox Angel, Elmer L. Nash, John M. Williams, for appellants.
Altman, Williamson, McGraw Loftiss, Harry Jay Altman, III, Royal A. McGraw, for appellee.
In this workmen's compensation case the employer and insurer appeal from the lower court's order affirming the award of the State Board of Workmen's Compensation.
In May, 1975, the parties entered into a standard agreement, approved by the board, which stated that the appellee was suffering from a 100% loss of use of his right knee. Thereafter, in November, 1975, the appellants sought a determination under Code Ann. § 114-709 that the appellee's condition had changed to only 25-30% disability. The administrative law judge found no change in condition, and this was approved by the full board and affirmed in the superior court.
The only evidence on change of condition presented at the hearing before the administrative law judge was the deposition of one physician and the record of an examination of the appellee by another physician. Each estimated appellee's percentage of disability as being in the area of 25-30%. The appellee did not testify as to his condition.
This case is controlled by decisions such as Fletcher v. Aetna Cas. c. Co., 95 Ga. App. 23 (1) ( 96 S.E.2d 650) and Phinese v. Ocean Acc. c. Corp., 81 Ga. App. 394 ( 58 S.E.2d 921). The testifying physician, although treating the appellee from prior to the injury until this hearing, did not testify that the appellee's condition had improved or changed. He merely estimated the percentage of disability as being 25-30%.
Under the any evidence rule an award of the State Board of Workmen's Compensation must be affirmed on appeal where there is evidence to support the award and there is no error of law. There was competent evidence that appellee's condition had not changed and the court did not err in affirming the award. See St. Paul-Mercury Indem. Co. v. Fletcher, 97 Ga. App. 429 ( 103 S.E.2d 438). See also Employers Mut. Liab. Ins. Co. v. Sheets, 105 Ga. App. 734 ( 125 S.E.2d 569). Accordingly, the judgment must be affirmed.
Judgment affirmed. Stolz, J., concurs. Quillian, P. J., concurs specially.
ARGUED JANUARY 11, 1977 — DECIDED FEBRUARY 17, 1977.
I concur in the majority opinion because I am constrained to follow that which was held in Phinese v. Ocean Acc. c. Corp., 81 Ga. App. 394 ( 58 S.E.2d 921), and Fletcher v. Aetna Cas. c. Co., 95 Ga. App. 23 (1) ( 96 S.E.2d 650). I do not feel that these cases are correct and adopt that which was stated by Judge Quillian, later Justice Quillian, in his special concurrence in the Fletcher case.
The appellant relies on Morrison Assur. Co. v. Hodges, 130 Ga. App. 436 ( 203 S.E.2d 629). However, it is distinguishable from the case sub judice. A review of the record in the Morrison case shows the physician who testified as to the change in condition had treated the claimant at the time of the injury and testified as to the claimant's condition at the time the agreement was approved.