23 S.E.2d 191 | Ga. Ct. App. | 1942
Lead Opinion
1. An award of the Industrial Board as to findings of fact, supported by any competent evidence, is conclusive and binding in the absence of fraud, and, on appeal to the superior court, such award stands on the same footing as the verdict of a jury which is supported by some evidence and which has been approved by the trial judge. Such an award can not be set aside by any court.
2. What weight and credit expert testimony is entitled to is a question for the jury. The director of the Industrial Board was authorized to accept the expert testimony of the doctors who had examined the claimant and who testified in their opinion the loss of vision in his eye was not caused by the accident as he contended. The award of the director of the Industrial Board was supported by some competent evidence, and the judge of the superior court erred in setting the award aside.
The director further found that "the superior weight of the medical evidence is that there is no connection between the loss of vision of the right eye of the claimant and the accident; . . that the claimant had the loss of vision in his right eye at the time of the accident, and that the accident had no part in making the vision any worse than it was originally." The director thereafter found "from the superior weight of the evidence that whatever loss of vision the claimant had in his right eye was pre-existent at the time of the accident and that there is no connection between the loss of vision and the accident." The director thereupon denied the claimant's claim for compensation.
On January 20, 1942, within due time, the claimant appealed from the award of the director to the superior court of Clayton County, the county in which the claimant was working at the time the accident was sustained. The superior court sustained the appeal and remanded the claim to the Industrial Board for further action. The employer and the insurance carrier excepted to this order and judgment.
An award of the Industrial Board as to findings of fact, supported by any competent evidence, is conclusive and binding in the absence of fraud (Code, § 114-710), and, on appeal to the superior court, such award stands on the same footing as the verdict of a jury which is supported by some evidence and which has been approved by the trial judge. It has been repeatedly held by this court and the Supreme Court that such an award can not be set aside by any court. Liberty Mutual Insurance Co. v.Perry,
What weight and credit expert testimony is entitled to is a question for the jury. Rouse v. State,
In the cases cited by the trial judge in his order, City ofAtlanta v. Champe,
Reversed. Felton, J., concurs.
Dissenting Opinion
On December 18, 1941, there came on for hearing before Director Tucker of the Industrial Board the claim of A. O. Jackson, employee, against L. P. Friedstedt, employer, and Bituminous Casualty Corporation, insurance carrier, for compensation for an injury received by the employee while engaged in the performance of his work with the employer and which he claimed resulted in the loss of vision in one of his eyes. The director found from the evidence adduced on the hearing that the claimant's eyes had been operated on over twenty years previously, which operation was performed in order to straighten the eyes of the claimant who was cross-eyed; that since this operation the claimant had been wearing glasses with heavy lenses; that the medical testimony showed that the claimant has a squint in his right eye; that the muscles controlling the movements of his eye do not function properly; that through the years the vision in the claimant's right eye had become impaired and practically lost because of nonuse which was all due to the first cause of malformation and failure of the eye muscles to function normally and properly; that this was the condition of the claimant's right eye on September 22, 1941, when he had the accident resulting in the injury for which he sought compensation; that the evidence adduced upon the nature of this accident shows that the claimant was struck upon the nose and upper lip; and that at the time he had on his glasses but they were not broken by the impact of the lick.
The director further found that "the superior weight of the medical evidence is that there is no connection between the loss of vision of the right eye of the claimant and the accident; . . that the claimant had the loss of vision in his right eye at the time *451 of the accident, and that the accident had no part in making the vision any worse than it was originally." The director thereafter found "from the superior weight of the evidence that whatever loss of vision the claimant had in his right eye was pre-existent at the time of the accident and that there is no connection between the loss of vision and the accident." The director thereupon denied the claim for compensation.
On January 20, 1942, within due time, the claimant appealed to the superior court which sustained the appeal and remanded the claim to the Industrial Board for further action. The employer and the insurance carrier excepted to this judgment.
The award of Director Tucker from which the claimant appealed is based on the findings of such director from the evidence adduced before him. Ordinarily the findings of fact made by a single director in cases where no application for review as provided under Code § 114-708 is made to the full board are final and binding on the superior court as well as on the appellate courts, where such award is supported by any competent evidence. Code § 114-710. On appeal to the superior court such an award, with respect to the sufficiency of the evidence to support it, stands on the same footing as the verdict of a jury which has been approved by the judge. Butler v. Mitchell,
The claimant testified that before the accident he could see out of his right eye, but that after the accident his vision in that eye was very much impaired. Dr. Kahn testified that several years before the accident he had examined this eye and found that the claimant had a two-thirds vision in the eye. A medical witness testified that he examined the claimant's eye after the accident and that the sight in it was very meager; that the claimant could see *452 only hand movements; that in his opinion this condition could have been caused by a lick in the face. However, the witnesses for the insurance company and the employer, who were physicians, and expert medical witnesses, and who made an examination of the claimant only after the accident, testified that in their opinion the condition of the right eye was due alone to nonuse thereof over a period of years, and had not been caused by the accident.
While the testimony of experts with equal opportunities for judging should be preferred to the testimony of one unskilled in a profession or trade, in matters of opinion, the claimant knew whether he had lost the vision in his right eye, and knew that he could see out of it until he suffered the blow which injured his nose and ear, cut his lip, and knocked him down. The claimant knew whether he suffered the loss of sight in his right eye after the accident and not before, better than any physician who examined him afterwards could know. If the claimant's testimony (which also had the support of some expert opinion testimony) is entitled to credit and belief by the director, the claimant's knowledge would, and ought to, "outweigh the opinion of a whole college of physicians, — because theirs is at last opinion." SeeCity of Atlanta v. Champe,
"Opinion evidence alone may be sufficient to support a verdict or finding, . . but the judgment of an expert when opposed to undisputed facts and deductions of common sense will not support a verdict." 22 C. J. 732, 733. The principle is well stated in Cincinnati c. R. Co. v. Webber,
It follows that the director erred in basing his award denying compensation solely on the expert opinion testimony of the three *454 physicians for the insurance carrier, and disregarding positive, unimpeached, uncontradicted testimony of the claimant as to when he lost the sight in his right eye, and the supporting expert opinion evidence of two physicians that the accident to the claimant could have caused the loss of the sight in such eye. I am of the opinion that the judge did not err in sustaining the appeal and in remanding the case to the Industrial Board.