13 S.E.2d 718 | Ga. Ct. App. | 1941
Lead Opinion
The superior court did not err in affirming the award by the Industrial Board of compensation to the claimant.
During the examination of the claimant her counsel made the following statement: "The reason I am going at it this way, I made an effort to find medical testimony supporting this claim or to eliminate the claim. All of the medical doctors that she has been to have told me that they would not testify that the accident caused the disability, and they would not testify that there is anything else the matter with her that would cause the disability. They say they can't understand what caused it. I will introduce, in a few minutes, a chiropractor who will testify as to his opinion, and he is the only doctor who has examined her that I have been able to have examine her who has a definite opinion. I make that statement to clarify the record." *635
Dr. D. M. Livingston, a witness in behalf of the claimant, testified, that he examined her and took an x-ray picture of her; that the x-ray showed a dropping and a dilatation of the transverse colon; that this could be caused by an injury over the right hip; that the limp was caused from a dilatation of the colon, which could reasonably have been caused by an injury over the right hip; that he did not think a miscarriage could cause it, but any injury could cause a miscarriage; that a disability actually existed, but he did not know whether it was caused by the accident, as he knew nothing of the accident and had never seen her until she came into his office; that her main trouble was the dilatation of the colon; that treatment of it was not in his line of practice, but was in a surgical line; that upon examination he told her that any treatment he gave her would be experimental; and that he did not go into the miscarriage for causes, since he did not do obstetrical work. An examination of the record discloses that Dr. Livingston did not qualify, nor during his testimony was there any attempt to qualify him, as an expert. He testified, on cross-examination, that he was a chiropractor and had been practicing for nearly eleven years.
Dr. W. H. Lewis testified, that he was a physician graduated from the University of Cincinnati, licensed to practice in Georgia, and had actually practiced for twenty years; that he specialized in diagnostic work; that he had examined the claimant and found that her condition was characteristic of individuals of her type; that he did not see how the injury sustained on January 27 could have any bearing on the miscarriage on March 23; that where a miscarriage followed an injury it usually took place within two weeks, at the outside, from the date of the injury; that the miscarriage could have been a very deciding factor in the present condition of the claimant; that from his examination her condition existed before the date of the injury; that in his opinion the disability was caused by her undernourished condition, the miscarriage, and the subsequent upsetting of her mental processes.
Dr. P. O. Chaudron testified, that the claimant was sent to him after the injury; that he examined her and found no visible sign of injury, no abrasion and no cuts; that he treated her the day after the injury, and two days later she came back to him for the last treatment; that at that time he told her to come back if she *636 had any sign of pain or discomfort; that the next time he saw her was when the miscarriage was impending; that she came to him on March 18, for a physical examination in connection with her pregnancy, and at that time, in answer to the question, "Any accidents or injuries?" she answered "No;" that the first complaint he had of the leg and hip was in July; that he was unable to connect the injury of January 27 with the miscarriage on March 23; that if the miscarriage had been the result of an accident it would have followed more or less immediately; that the only connection he could see between the accident and the present disability was the complaint made by the claimant, and he had not heard this complaint before the miscarriage; that he thinks it is possible that she is suffering from residuals from the miscarriage; that he has been unable to find any cause for the miscarriage; that he is unable to find any real disability; and that it is probably caused by constant thoughts of that side, and possibly some pain around her ovaries and tubes, following her miscarriage, that has really disabled her.
Doctor Lewis testified that it was absolutely impossible for the drop in the colon to have been caused by the lick on the hip without an immediate peritonitis requiring surgery on the spot.
The director found that the disability of the claimant was caused by the accident sustained by her, and that the accident precipitated the miscarriage, the miscarriage not contributing to the disability; that the accident caused the dropping and enlargement of the colon, and this condition is contributing to the present disability; that as a result of the accident on January 27 the claimant became totally disabled on July 7, and has since been totally disabled; and that employers failed to provide proper medical treatment. The award of the director was affirmed by the board and by the superior court on appeal. It appears from the evidence, that the plaintiff sustained an accidental injury arising out of and in the course of her employment, on January 27, 1939, when an apron she was wearing caught in a roller on one of the spinning frames at which she was working, and jerked her up against the frame, the frame striking her body just above the right hip and injuring her; and *637 that she had suffered from the injury thus sustained up to the date of the hearing before the Industrial Board. The evidence shows that she had received no injury other than the one complained of, and that she was in good health up to the date of the accident. The finding by the director, which was approved by the board, was in part as follows: "In this case the evidence clearly shows that prior to the accidental injury claimant worked regularly and was apparently in good health; that immediately following the accident she became disabled and was out of work for about a week, complaining of pain in her right side; that she then went back to work and worked for several weeks, but during this time was still suffering from pain in the region of her right hip; that she then stopped work and shortly thereafter had a miscarriage; that since the miscarriage occurred claimant has gradually gotten worse, the pain in the region of her right hip and right leg having increased, which now causes her to walk with a decided limp. Under all the facts and circumstances in this case, a reasonable inference and deduction to be drawn is that claimant's present disability resulted from the accidental injury sustained by her on January 27, 1939. There is some doubt in the deputy director's mind as to whether the accidental injury caused the miscarriage; but under the peculiar circumstances of this case, the deputy director is of the opinion that the most reasonable conclusion to be reached is that the accidental injury which was followed by continuous pain up to the date of the miscarriage, precipitated the miscarriage. If the evidence disclosed any other condition to which the miscarriage could be attributed, the deputy director might not have reached this conclusion; but in the absence of any other known condition, and the undisputed evidence that claimant continued to suffer pain from the date of the injury up to the date of the miscarriage, the deputy director is of the opinion that the miscarriage resulted from the injury. And due to the fact that the physicians who examined claimant found that all of her pelvic organs were absolutely normal, the deputy director is of the opinion that the present pain in the claimant's right side and leg, which causes her to limp, is the direct cause of her present disability and resulted from the accidental injury and not from the miscarriage. The evidence shows that claimant was struck just about the right hip, and her colon, which was in this *638 region, is now two inches below its normal level, and the deputy director is of the opinion that the accidental injury in some manner caused the displacement and enlargement of the colon, and this condition perhaps is contributing toward her present disability. From the preponderance of the evidence the deputy director finds as a matter of fact that as a result of the accidental injury sustained on January 27, 1939, claimant became disabled on July 27, 1939, and since July 27, 1939, claimant has suffered total disability continuously as a direct and proximate result of the accidental injury."
A majority of the court is of the opinion that there was sufficient evidence to authorize the findings of fact and the award of the Industrial Board in favor of the claimant, and that the superior court did not err in affirming the award.
Judgment affirmed. Stephens, P. J., and Sutton, J.,concur.
Dissenting Opinion
All of the evidence in the case at bar is opinion evidence. Dr. Livingston, the chiropractor, was not qualified as an expert as to the facts to which he testified, and his evidence touching these facts amounts only to the evidence of a layman. On the other hand, there is expert testimony of two physicians who are qualified as experts. In such a case the testimony of the witness not qualified as an expert must yield to the testimony of the experts. The testimony of the physicians is to the effect that the accident sustained by the claimant had no connection with the miscarriage which she suffered, or the disability which began in July after the accident. Under the facts as shown by the record the claimant failed to carry the burden of showing that she is disabled because of an accidental injury as contemplated by the workmen's compensation act. The Industrial Board erred in awarding her compensation, and the superior court erred in affirming that award.