Summary
In United States Fidelity and Guaranty Co. v. Brown, 68 Ga. App. 706, 711 (supra), the employer had furnished a doctor, and the claimant Brown, without the consent of the employer, went to his own personal physician, paid such physician himself and sought no recovery for the services of his physician.
Summary of this case from Hartford Accident Indemnity Co. v. SuttonOpinion
29606.
DECIDED NOVEMBER 27, 1942. ON REHEARING, DECEMBER 19, 1942.
Appeal; from Bibb superior court — Judge Malcolm D. Jones. February 23, 1942.
Anderson, Anderson Walker, for plaintiffs in error.
Thomas A. Jacobs Jr., contra.
1. There is a motion to dismiss the writ of error on the ground that "the decision is not a final judgment and the writ of error was sued out by the plaintiff in error in violation of § 6-701 of the Code." This motion is without merit, and is overruled. New Amsterdam Casualty Co., v. McFarley, 64 Ga. App. 465 ( 13 S.E.2d 588).
2. The superior court did not err in finding that there was a substantial compliance with the requirements of Code § 114-303 as to notice of the accident.
3. Finding of fact based on mere conjecture can not be upheld.
4. Where the injury can, with equal probability, be attributed to one of two accidents, from the same proof, the evidence is without selective application to either, and it remains conjecture only as to which caused the injury.
5. But if there is evidence pointing to any logical theory of causation, indicating a logical sequence of cause and effect, there is a juridical basis for a determination as to how the event happened, and a jury would be authorized to select this theory notwithstanding the existence of other plausible theories with or without support in evidence.
6. The entire evidence in the instant case did not indicate a logical sequence of cause and effect which would be the basis for the finding of the single director, notwithstanding his theory may have been plausible, for the evidence being without selective application to either of the plausible explanations as to which of two accidents caused the injury the finding remained conjectural only.
7. The evidence did not authorize the finding of the director, which was affirmed by the board.
DECIDED NOVEMBER 27, 1942. ON REHEARING, DECEMBER 19, 1942.
This case came to this court on a bill of exceptions by the United States Fidelity Guaranty Company, the insurance carrier, and Beers-Cobb Construction Company, the employer, complaining of a judgment of Bibb superior court which, on appeal, had reversed the ruling of the Industrial Board, which had affirmed the finding of the single director. Arlie D. Tucker, denying compensation to the claimant, William G. Brown. It was admitted that on January 25 or 27, 1941, and on February 25, 1941, the claimant was in the employ of Beers-Cobb Construction Company. Hereinafter the word "employer," unless otherwise designated, will refer to the construction company, from whom the claimant is seeking compensation; the words "former employer," will refer to the employer for whom claimant was working in 1935 or 1936 when the scale from the steel tool got into his eye; and the word "employment" refers to the employment of the construction company, unless otherwise designated.
It was undisputed that in 1935 or 1936, the claimant, while operating a steel instrument for a former employer, received a sliver of steel, or a steel scale, from this instrument into his left eye. This occurrence took place five or six years before the time of the alleged injuries that the claimant contended occurred while he was an employee of the construction company, the employer named in the present case from whom he sought compensation. At the hearing in the instant case the claimant testified that, on January 25 or 27, 1941 (it is immaterial which date), while in the employment of the construction company, the employer in question, he received an injury to his left eye; that ten days or two weeks later he went back to work, but his eyes continued to give him trouble, and on February 24, 1941, while still in the employment of the construction company, he had another accident when some selotex got into his eye. As a result of either, or both, of these accidents he is now practically blind in his left eye and is seeking compensation on account of such accident.
The judgment of the superior court reversing the ruling of the Industrial Board was as follows: "Claimant was employed by defendant company to construct wooden forms from old lumber previously used for the same purpose, into which forms, when fitted together, cement was to be poured. Claimant was working in a ditch, and in fitting the forms together it was found necessary to saw one of the boards. To do this he placed the board across the top of the ditch, and was proceeding to saw the board when particles of cement or sand or some foreign substance clinging to the board dropped into his left eye. Whatever the foreign substance was it caused him so much pain that he reported his condition to the foreman under whom he was working, and to the pusher [in some instances he also is called a foreman], a sort of efficiency expert charged with the duty of `keeping the men going.' Claimant got off from the job about 4 p. m. of the day his eye was hurt. After consulting his doctor in Gadsden, Alabama, and receiving treatment from him, he returned to work and while sawing selotex some fragments of the fibrous material got in the same injured eye and increased its inflamed condition. After this second accident he was sent to Dr. Solomon, a physician in charge of the clinic at the camp. Dr. Solomon told him `to see his own private specialist.' From Dr. Solomon he went to Dr. McLaughlin, an eye specialist in Macon, and from Dr. McLaughlin he went back to his first doctor, Dr. Lucian Brown of Gadsden, Alabama. The condition of his eye has steadily grown worse until now he is practically blind in that eye. Before the two accidents above recited both eyes were good. In 1935 or 1936 a small scale of steel from a drill flew off and into his eye. That was so long ago he is not certain whether it was his right or left eye. It was removed and from that time he has had no trouble with his eyes until the left eye was injured as above stated. `I had vision of both eyes.' The above physical facts were sworn to by the claimant.
"The defendant offered only two witnesses, Dr. Solomon and Dr. McLaughlin, two of the physicians consulted by claimant after the accident complained of and who were entirely ignorant of the physical facts, except as narrated by their patient while suffering from an ulcerated conjunctiva. The theory of the defense seems to be that claimant lost the sight of his left eye as the result of a sliver of steel being imbedded in the cornea of his eye in 1935 or 1936. The claimant swore he had entirely recovered from that injury, which was so far back in the past that he could not be certain whether the sliver of steel struck him in the right or in the left eye.
"Dr. Solomon swore that at the time of his examination claimant was practically blind through a scar which covered the pupil. The doctor also testified that in his opinion this scar could have resulted from the injury of January 27. Dr. Sullivan [Solomon] advised him to see a specialist. Dr. McLaughlin [a specialist] testified that ulcers sometimes form in a period of two or three days after a man gets an injury. `An ulcer that large would probably take several days to form unless it was from very virulent organism.' Dr. McLaughlin saw claimant on February 25, about a month after he claimed to have gotten something in his eye. This witness also testified: `My impression of it was he had an old scar that had healed or partially healed over and either partially healed or broken down again, because part of the lesion was scar formation and the other part was ulceration.' He also testified that an ulcer of that size would probably take several weeks or several months to heal. Sometimes ulcers run six months or more even. Further he testified as follows: Question: `You don't mean to say this man (meaning claimant) didn't get an injury sometime the latter part of January that caused the condition you found?' Answer: `It is possible for that to have taken place.' Plaintiff made a prima facie case by his own uncontradicted evidence, supported by that of Ragsdale, one of his foremen. Neither of these experts knew anything about the physical facts of the accident, except as related by claimant.
"The theory of the defense seems to be that claimant's blindness was not caused by the accident of January, 1941, but by a sliver of steel that got in his eye in 1935 or 1936. The only evidence of this accident, some five or six years before, is the admission of claimant to the two experts coupled with the statement that he recovered from the 1935 accident entirely and enjoyed normal vision up to the date of his injury in 1941. Neither of defendants swore that claimant's present condition is due to the sliver of steel he got in his eye. On the contrary Dr. Solomon swore he found a scar that covered the iris; but he also swore this scar could have formed since January 27. Dr. McLaughlin, who saw claimant on February 25, swore that the ulceration he found `sometimes forms in two or three days after injury. . . It is possible that the injury the latter part of January caused the condition I found.'
"The first finding of fact by the director who heard the evidence was that there was `no proper report of an accident. So far as actual notice of an accident, the evidence fails to show it.' The evidence of claimant shows he immediately reported to his foreman and got his permission to quit work at 3:30 or 4 o'clock of the same day. He also reported his accident to Mr. Ragsdale, another foreman or `pusher' who corroborated claimant. Creel, the company's foreman was not offered as a witness and the evidence shows no denial whatever of claimant's sworn statement. The court finds there was substantial compliance with requirements of Code § 114-303 as to notice. The unnatural way the claimant handled the matter to start with raises a question, especially when taken into consideration with other essential facts in this claim.
"The award then proceeds to enumerate `other essential facts:'
1. Claimant went to his personal doctor, without giving employer opportunity to furnish one without cost. 2. Claimant had a second accident to the same eye and told Dr. Solomon that several years previous he got hot steel in one of his eyes but did not remember which eye. 3. The testimony of Dr. Solomon is that claimant told him about his second accident of February and did not say a thing about the `main' accident of January. 4. After going to his employer's physician, Dr. Solomon, he again went to a personal physician, paid him for the visit and told him he was not making a compensation case. The court finds that none of these so-called `essential facts' nor all of them combined, would cast even a shadow of suspicion on claimant's case. The next finding of the director is that `claimant carried the burden of proving his case beyond a reasonable doubt.' Bone v. State, 102 Ga. 391 [30 S.E. 845], and cases cited. Code § 38-105 says that in civil cases a preponderance of the evidence is sufficient to produce mental conviction. And finally the director finds: `As a matter of fact, from the evidence and lack of evidence that whatever disability claimant may have to his left eye did not arise out of and in the course of his employment.' The finding of the single director was approved by the Industrial Board, and the claimant appealed.
"The court finds as a matter of law that the evidence in this case demanded a finding for claimant and that no other finding would be supported by the uncontradicted evidence. Whereupon, it is considered and adjudged that the foregoing appeal of William G. Brown vs. Beers-Cobb Construction Company and United States Fidelity Guaranty Company coming on to be heard, after consideration of the facts of the case and the law applicable, the court finds that the award of the Industrial Board denying compensation to the claimant is erroneous, and the court finds that the accident to claimant did arise out of, and in the course of the claimant's employment with Beers-Cobb Construction Company, and is compensable under the compensation act. The court therefore recommits the case to the Industrial Board for further proceedings not inconsistent with this judgment, so that the Industrial Board may determine the amount due claimant for total incapacity for work as provided in section 114-404 of the Code, and the specific loss of member as provided in section 114-406 of the Code. In open court this 23d day of February 1942. Malcolm D. Jones, J.S.C.M.C."
1. We think the statement of facts in the judgment of the superior court is a fair statement of the evidence, and embraces the material part thereof as it relates to the issues in this case. As to what is referred to by the judge of the superior court in the award of the single director as the "other essential facts" and enumerated as subdivisions 1, 2, 3, and 4, in the judgment of the superior court, we think, with reference to subdivision 1, it might be noted that the employee's eye was hurt or at least that he had gotten sand or cement into it which was giving him trouble or pain, and that the employee told the foreman he was going to a doctor. There was no obligation on the employee to obtain the permission of his employer to select the doctor to give him treatment, for he was at liberty to select any competent or reputable physician that he desired, and the exercise of this discretion would not be an impeaching circumstance.
With reference to subdivision 2: Assuming the claimant, five or six years before the accident or accidents in question, had gotten a sliver or scale in his eye, if "it was a frivolous thing," as he testified, we do not think the failure to remember which eye it was in was such a circumstance as would alone authorize an inference that the claimant was knowingly testifying falsely; but the most that could be said was that it was a mere surmise or conjecture that it, perhaps, might not be entirely in accord with what did happen. If, while riding on a railroad train, one should get a cinder in one or the other of his eyes and, although at the time it was painful and gave him considerable trouble, in a short time thereafter all the ill effects passed away, if five years later he should be asked into which eye the cinder had flown on that occasion and he could not remember, or on account of faulty recollection only, stated the wrong eye, we do not think that the witness's entire testimony should be disbelieved.
With reference to subdivision 3: Dr. Solomon, the physician of the employer, did not see the employee until February 24, 1941, which was after the second accident during the employment in question, the former accident having occurred approximately a month previously. The claimant told Dr. Solomon about the accident in 1935 or 1936, which had occurred while in the employment of a former employer; but about the accident of January, 1941, the claimant testified, "I believe I told him about it. I wouldn't say positively I did." It seems to us that this should not be regarded as a serious impeaching circumstance as to the witness, because he told the employer's doctor about the accident which would have militated against his case if he had contemplated filing an untrue claim for compensation and failing to mention the previous accident that had happened only a month before which would have aided his case.
With reference to subdivision 4: The claimant went to an eye specialist on the recommendation of the employer's doctor, Dr. Solomon, but finally, on his own initiative, he went back to Dr. Brown in Alabama who had treated his eye for the sand and cement injury. We do not think this could be construed as an impeaching circumstance with reference to the witness.
The only part of the testimony of Dr. McLaughlin, the eye specialist, that could be said to materially refute the positive testimony of the claimant that he had good vision in both eyes, and began to lose his sight only in the eye in question after the accident of January, 1941, was as follows: Q. "What was your opinion as to this scar that you found on his eye?" A. "My impression of it was he had an old scar that had healed or partially healed over, and either partially healed or broken down again, because part of the lesion was scar formation and the other part was ulceration. . . He stated he didn't want to make this a compensation case and in fact he paid for his visit when he came in. For that reason I didn't make out any compensation forms on it because it didn't seem clear to me it was a compensation case. . ." Q. "[Dr. McLaughlin], you don't mean to say this man didn't get an injury sometime the latter part of January that caused the condition you found?" A. "It is possible for that to have taken place. . ." A. "It is possible for that to have taken place. . ." Q. "You did see irritation and some infection in the eye when he came to you?" A. "Yes, sir, there was a definite inflammatory condition there."
It is disclosed by the record that both the claimant's attorney and the defendant's attorney thought extremely well of Dr. McLaughlin as an eye specialist of the highest ability. Dr. McLaughlin was apparently not examining the eye of the claimant for the purpose of endeavoring, as a specialist, to determine whether the scar was brought about by the accident of January, 1941, or the accident of 1935 or 1936; and he seems to us to have been seeking to determine the present condition of the eye (at the time he examined it), in order to give it the proper treatment at that time, and he seems to us to have been very careful not to give any positive or definite opinion as a medical expert on the question of which of the said accidents caused the scar on the eye. The doctor did not give his expert opinion on a hypothetical question asked him, based on the facts disclosed by the evidence, as to which of these accidents caused either the scar or the blindness. Indeed it seems to us he stated that either might have caused the scar or the blindness and stopped "right there," not going any further. If this be correct, the testimony was a mere explanation, based on the same proof with equal probability that the scar would be attributable to either of the accidents, to wit, the one in 1935 or 1936, or the one in January 1941. A different question would be presented if the doctor had gone further and testified, from his examination of the eye, or from a proper hypothetical question reciting facts disclosed by the testimony, that in his professional opinion the scar or blindness had been caused by the accident in 1935 or 1936, and not by the accident of January, 1941. This would have been additional evidence as it related to the accident of 1935 or 1936, which differentiated it from the evidence as it related to the accident of January, 1941. Then the director would have been authorized to select the theory that the injury resulted from the accident of 1935 or 1936. The defendant offered only two witnesses, Dr. Solomon and Dr. McLaughlin, and, in the absence of a definite expert opinion of the doctor, based on the proper examination of the wound, or based on a hypothetical question properly framed, there can be no selective application of the theory that the proximate cause of the injury was the accident of 1935 or 1936. The principle stated with reference to Dr. McLaughlin's testimony as applied to this case is likewise applicable to the testimony of Dr. Solomon, the only other witness for the defendants. The entire evidence did not indicate a logical sequence of cause and effect which would be the basis for the finding of the single director, notwithstanding his theory may have been plausible. This finding was affirmed by the board. Southern Ry. Co. v. Dickson, 211 Ala. 481 ( 100 So. 665). The claimant testified the sliver or scale from the instrument was removed from his eye, and from that time he had no trouble with his eyes until his left eye was injured as above stated. "I had good vision out of both eyes." This finding of the single director and the Industrial Board, being based on conjecture only, can not be upheld, and the judge of the superior court did not err in recommitting the case to the Industrial Board for further proceedings not inconsistent with his judgment.
2. Other headnotes not specifically dealt with in the opinion do not require elaboration.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.
ON MOTION FOR REHEARING.
We are of the opinion that the judge of the superior court properly recommitted the case to the Industrial Board, and the judgment of affirmance is adhered to; but we direct that it be recommitted to the Industrial Board for a full reconsideration and rehearing, and not merely for the limited purpose of having the board determine the amount of compensation. Bituminous Casualty Co. v. Dyer, 62 Ga. App. 279, 283 ( 7 S.E.2d 415); Whitfield v. American Mutual Liability Insurance Co., 44 Ga. App. 478 ( 162 S.E. 297); Hartford Accident Indemnity Co. v. Cox, 191 Ga. 143 ( 11 S.E.2d 661), s. c. 63 Ga. App. 763 ( 12 S.E.2d 110); Austin Brothers Bridge Co. v. Whitmire, 31 Ga. App. 560, 567 ( 121 S.E. 345).
Judgment affirmed, with direction. Broyles, C. J., and Gardner, J., concur.