42 S.E.2d 578 | Ga. Ct. App. | 1947
(a) Where, as here, the taking of evidence by the single director was closed and upon a review of the medical testimony the hearing director finds that the conflict in such testimony as between the opposing parties is so serious that the director desires to have the disinterested physician of the board examine the claimant; and where the director does of his own motion have the claimant examined and receives a report from the board's physician; and where the director makes the statements in the report of its disinterested physician the substantial basis for his award without giving the defendants an opportunity to cross-examine the board's physician under oath, and without notice to the defendants or their counsel or without any waiver or agreement of the defendants or their counsel as a basis of the award; and where an appeal is made to the superior court from such award of a single director, and these facts are made to appear to the superior court, the superior court erred in not reversing the award.
(b) The State Board of Workmen's Compensation is authorized in the exercise of its discretion, to ratify the procuring of medical treatment after it had been rendered.
(a) There were several hearings in the case, and both parties were represented by counsel. Both parties introduced expert medical testimony — the claimant by his physician, Dr. Sharpe, and the defendants by Dr. Hancock. After the record had been closed insofar as the submission of testimony by the parties was concerned, and before an award was made by the hearing director, the director addressed a letter to the attorneys for both parties as follows:
"April 4, 1946. Hon. Andrew J. Tuten, Attorney-at-Law, Alma, Georgia.
"Hon. Harry L. Greene, 1040 Hurt Bldg., Atlanta, Georgia.
"Re: J. E. Williams, v. J. A. Jones Construction Company and American Mutual Liability Insurance Company — C 540-W.
"Gentlemen: With reference to the above captioned matter this is to advise that after a review of the record, I find a very serious conflict between the two physicians who testified in said matter. After careful consideration the undersigned has elected to have the claimant examined by the board's disinterested physician, Dr. F. C. Mims, 420 Mortgage Guarantee Building, Atlanta, Georgia. When said medical examination has been made a copy of the medical findings will be submitted to the parties, seeking to have same made a part of the record without further hearing, however, in the event the parties do not agree the matter will be set down for hearing in Atlanta, Georgia, wherein the testimony of Dr. *131 Mims will be taken. It is directed that the employer and/or insurer furnish the necessary transportation expense to the claimant for this examination. Please give this matter your earliest attention in order that a decision may be rendered as quickly as possible. Very truly yours, Harry E. Monroe." The claimant was examined by Dr. Mims. The director did not furnish counsel for the defendants a copy of the report of Dr. Mims. And without further notice to the defendants or their counsel, on May 9, rendered an award in favor of the claimant. In this award the hearing director goes into detail regarding the findings in the report of Dr. Mims, the board's disinterested physician, and after reviewing the testimony of Dr. Sharpe, states, "this testimony of Dr. Sharpe was substantially corroborated by the testimony of Dr. F. A. Mims." Then follows a detailed finding of Dr. Mims, as to the disability and extent of the disability of the claimant. So far as the record reveals, neither the defendants nor their counsel had any notice that the director would base his findings on the report of Dr. Mims, without giving the attorneys for the defendants an opportunity to cross-examine Dr. Mims under oath, as the law provides. We think this was reversible error.
Able counsel for the claimant contends that since there is some evidence to sustain the award of the single director, that the judgment should be affirmed. He further contends that the defendants should have made objections before the hearing director or the full board, and that since this was not done the objections came too late in the superior court. This reasoning does not seem to be sound. The rule that an award shall be sustained if there is any evidence to support it means evidence procured at a hearing where both parties and their counsel have a right to be heard, and to cross-examine the witnesses who testified against them. This is fundamental in all judicial hearings. The hearing director and the board have no right to take testimony ex parte or on their own motion and base an award on it, without giving the parties and their counsel an opportunity to be present and to cross-examine the witnesses if they desire, any more than any other tribunal would have. The only other way in which testimony or evidence may be legally considered as a basis of an award is by consent or waiver. This is not a new question. This court in the case of Caldwell v.American Mutual Liability Ins. Co.,
Counsel for the claimant relies strongly on the case ofAmerican Mutual Liability Ins. Co. v. Sisson,
(b) The hearing director allowed the claimant the medical expenses of Dr. Sharpe from January 20, 1945, and ordered the defendants to pay such expense. In the award the director found: "The next question is medical expenses and the employer and/or insurer's liability therefor under the Code section, it appearing that the claimant living in Alma, Georgia, a distance of some 100 miles from the shipyard and after leaving the employment, the claimant sought the services of his physician, Dr. W. W. Sharpe, in his home town. Certainly the director thinks this is an emergency as contemplated under the medical section of the Civil Code. *134
The director is of the opinion that the employer and/or insurance carrier would not be liable for any medical expenses incurred by Dr. Sharpe while he was employed at the shipyard, but after January 20, 1945, and while claimant was incapacitated to the extent that he was unable to travel to and from Brunswick, the director is of the opinion that the employer and/or insurer would be liable for the expense in accordance with the above-quoted section of the act as constituting an emergency over which the claimant had no control." On that date the claimant contends he was forced to quit work because of injuries received. It is urged by the defendants that they were not consulted; that they never declined to give claimant treatment and did not know that Dr. Sharpe was treating him. This medical expense was allowed under the Code, § 114-501. In our opinion this court has construed that portion of the provisions of this Code section here brought into question adversely to the defendants in the case of UnitedStates Fidelity Guaranty Co. v. O'Byrne,
Judgment reversed. MacIntyre, P. J., and Townsend, J., concur.