Firemans Fund Insurance v. Buchanan

54 S.E.2d 156 | Ga. Ct. App. | 1949

The findings of fact of the State Board of Workmen's Compensation being conclusive upon the courts, the superior court did not err in affirming the award of the single director awarding compensation.

DECIDED JUNE 15, 1949. Charlie Buchanan filed a claim with the State Board of Workmen's Compensation on January 31, 1947, for an injury received while in the employ of the Canton Cotton Mills. The first hearing of the board was held before a single director at Canton, Georgia, on March 5, 1947. The dates given as the date of the injury are almost as numerous as there was occasion to mention the date in the record. Choosing the one which seems most in conformity with the evidence, the claimant was injured on January 23, 1946, when, while "pouring up quills," he struck his left elbow against the box into which he was pouring the quills. The claimant at that time felt a stinging sensation in his elbow, but not realizing that he had been severely injured, continued to perform his duties. Some time later he reported to his foreman that his arm was sore at the elbow, and was told that he had probably "sprained a leader or muscle" in his arm, and the claimant continued his duties as best he could. Later he was sent to the hospital where he was examined and treated on March 5, 1946, according to the Standard Form For Surgeon's Report, prepared by Dr. Grady N. Coker on March 14, 1946. According to this report, the claimant was suffering from a "swollen, tender bursa at elbow," and the report stated that the accident was the only cause of the patient's condition, that X-ray showed no fracture, and that the patient was suffering from no disease of the heart, lungs, brain, kidneys, blood, vascular system, or other disabling condition not due to the accident. Upon the call of the case for hearing the director stated: "The record of the State Board of Workmen's Compensation shows that on March 13, 1946, Charlie Buchanan sustained an accidental injury arising out of and in the course of his employment while in the employ of the Canton Cotton Mills; the accident occurring when the claimant struck his left elbow against a box resulting in a chipping of the bone in his left elbow. On July 17, 1946, Form 16, Agreement as to payment of compensation, signed by the parties, under the provisions of which claimant was to receive compensation at the rate of $14.95 per week, based on an average weekly wage of $29.90, was received by the board and approved July 22, 1946. On March 22, 1946, a Return to Work Report was received by the board, indicating the claimant [had] returned to work on March 19, 1946. On June 19, 1946, Final Settlement Receipt, signed by the claimant was received by the board, indicating that claimant had been paid compensation in the amount of $39.86 covering two and two-thirds weeks temporary total disability. On August 21st, 1946, Form 19, Supplemental Memorandum of Agreement as to payment of compensation was received by the board, signed by the parties, under the provisions of which claimant was to be paid compensation at the rate of $14.95 a week beginning July 17, 1946; that said Form 19 did not show any percentage of disability, and for that reason it was not approved by the board. It would appear to me that the Form 19 in question was executed on the theory that it was a Form 16. It would further appear to me that the employer and/or insurance carrier was to resume payment of temporary total [disability]. If that be the case, it was not necessary to have a particular Form 19 to sign. On October 5, 1946, second Final Settlement Receipt was received by the board, signed by the claimant, indicating that claimant was paid the total sum of compensation in the amount of $154.47, covering ten weeks temporary total disability and one-third of a week covering total loss of use of a member. The second Final Settlement Receipt presumably paid compensation through September 8, 1946."

On the hearing the claimant testified that Dr. Jones X-rayed the arm, treated it, and instructed him to carry it in a sling. He continued treatment on the direction of the physician. His condition improved and he was told to return to work. He carried his arm in the sling from two to three weeks, during which time he did not work at all. He returned to work for a period of approximately two months when his arm began to pain him again. He was sent again for treatment as the arm had swollen. The physician applied diathermic treatments and incised the elbow to drain the situs of the injury of purulent matter. The drainage continued for several weeks until he was given "some shots in the arm." The claimant stated that he had never had anything wrong with the arm up to the time of the accident and that he had never lost time from his work on account of illness. Following the shots the claimant returned to work and worked up until January 15, 1947, when his arm became stiff, painful, and he was unable to straighten the limb. The claimant's arm was displayed, showing it to be swollen and some atrophy of the muscles existed. The claimant stated that he had no knowledge of previous tubercular condition and that he had never been treated for tuberculosis before. A subsequent hearing was held on June 16, 1947, to take the testimony of Dr. Grady Coker, who testified substantially the same as the claimant with reference to the injury and the treatment given. He stated, however, that the X-rays taken of the claimant's arm showed no indication of osteomyelitis at the time of his first visit. No X-ray was made of the claimant's chest until he was referred to Battey Hospital. He testified that the elbow X-rays on the claimant's first visit showed no evidence of a tubercular condition except that the developed a discharging sinus, which was cauterized and healed, and that he showed no sign of bone changes at that time; and that he was at a loss to know what happened until later he developed the tubercular condition of his bones and had pulmonary tuberculosis; that the bone lesions from which the claimant was suffering were "a lot of times" concurrent with pulmonary tuberculosis, "very rare but they do occur." In reply to the following question the physician made this reply: "Now, doctor, isn't it often that a man will have tuberculosis of some part of the body, what we call a latent case, and then an injury will cause it to become active? A. I think all of us are probably born with tuberculosis to start with, I mean a tendency to have tuberculosis. We may contract it at a later date when we are weak and run down." Further he testified on the question of whether a latent condition of tuberculosis is liable to become active by reason of an injury: "I don't see how an injury to his elbow could cause tuberculosis of the lung. . . I don't think tuberculosis ever caused tuberculosis." A letter from Dr. Peter B. Wright, which was received in evidence by agreement of the parties, stated: "I have seen this man as a patient at the Battey State Tuberculosis Sanatorium on two or three occasions. He has a far-advanced pulmonary tuberculosis and a tuberculous lesion of the left elbow which has done considerable destruction to the joint surfaces. Although this man may have injured this elbow, I cannot see how it could reasonably be claimed that the disability is due to the injury. We have a dozen or more similar cases of concurrent bone and pulmonary tuberculosis, and I consider the present disability to his elbow is due strictly to the tuberculous infection."

The single director awarded compensation for the total loss of use of the claimant's left arm, and the insurance carrier excepted to the judgment of the Superior Court of Cherokee County affirming the award. 1. Upon consideration of the motion to dismiss the writ of error, permission is granted counsel for the defendant in error to withdraw the same.

2. It has long been well settled that the finality of a finding of the State Board of Compensation upon the facts of a case is conclusive and binding upon the courts. We shall not encumber the reports with further pedantic enumeration of the authorities upon this point. We cite one, Maryland Casualty Co. v. England, 160 Ga. 810 (129 S.E. 75). The single director in awarding compensation stated: "I further find as a matter of fact that the present tubercular condition of claimant's left arm resulted from the accidental injury sustained by him March 15, 1946" (January 1, 1946?). Let us say from the outset that we are aware that experimental pathology gives no ground for considering that trauma can in any way be connected with the causation or localization of bone tuberculosis, and that it is generally accepted that there is no convincing clinical evidence which points to such relationship. See The Relation between Injury andDisease, p. 460, by Jewett V. Reed, B. S., M. D., F. A. C. S., and Charles P. Emerson, A. B., M. D., D. Sc. It seems, however, generally accepted also that trauma may aggravate an existing bone tuberculosis in a variety of different ways. An injury, as from a laceration, may cause such severe hemorrhage that the patient's resistance to all infections, including his local bone tuberculosis, is lowered, and the tuberculosis becomes more active. Again, trauma may result in some severe, disabling, acute pyogenic (pus producing) infection elsewhere in the body, which so lowers the patient's resistance to his previously unsuspected local tuberculosis, or local tuberculous bone lesion, that an exacerbation of the latter occurs. Still again, trauma may injure a bone at the point of either a latent or active tuberculous focus, causing the latter to progress much more rapidly than before. Ibid. As we view the record, there is not the slightest contention on the part of the claimant that the tuberculosis was incipient with the striking of his elbow against the quill box. He does not contend even by intimation that the blow to his elbow caused his pulmonary tuberculosis of which he is presently undoubtedly suffering. Dr. Wright stated in his letter of June 4, 1947, that the claimant was suffering from a"far advanced pulmonary tuberculosis and a tuberculous lesion of the left elbow." It seems well established that tuberculosis is a progressive disease which even for years may give no recognizable symptoms, and since Dr. Wright only a year later found the pulmonary tuberculosis far advance, it may be that the director was impressed that the claimant was suffering from the pulmonary tuberculosis at the time of the accident. Dr. Coker stated in his report that the claimant was not on his first visit suffering from any lung disease, though he testified on the hearing that no X-ray examination of the lungs was made. It may be that his diagnosis without the aid of X-ray was sufficient and accurate, but it was entirely within the director's province to disregard that portion of his testimony as to the presence of tuberculosis at that time. In, what seems to us, an unresponsive answer to the question of counsel for the claimant whether an injury is liable to cause a latent condition of tuberculosis to become active, the doctor replied, "I don't see how an injury to his elbow could cause tuberculosis of the lung." Frankly, neither do we, but the question of whether injury ever activates latent tuberculosis remained unanswered at that point. Taking Dr. Coker's testimony as a whole, however, we think that, taken together with Dr. Wright's statement, it warranted the director's finding that the condition of the claimant's arm resulted from the accident in striking it against the quill box. Dr. Coker testified: "I think all of us probably are born with tuberculosis to start with, I mean a tendency to have tuberculosis" (his meaning apparently being that dormant tubercle bacilli are present in the bodies of all of us); and, at another point, "I think the bone lesion is due to the lung condition." We think that the director was authorized to find that either or both the pulmonary tuberculosis or tuberculosis of the bone was present prior to or at the time of the accident, and that the accident aggravated the condition and hastened the deleterious progress of the disease in the arm. "Where injury results partly from accident and partly from pre-existing disease it is compensable if the accident hastened or accelerated the ultimate result, and it is immaterial that the claimant would, even if the accident had not occurred, have become totally disabled by the disease." Young v. Herrington, 61 Idaho 183 (99 P.2d 441). See alsoU.S. Fidelity Guaranty Co. v. Maddox, 52 Ga. App. 416 (183 S.E. 570). Dr. Coker testified also that upon the first examination of the claimant's elbow it showed a tender, swollen radial bursa (sacs containing synovial fluid, located over bony prominences exposed to friction, such as joints (knees, elbows, wrists, etc.). At another point he stated that "the only evidence that we found there that the thing [referring either to the elbow or the olecranon — radial bursa] might be tubercular, he developed this discharging sinus." Though what we say here is unnecessary to a decision in the case, we are rather inclined to feel that the director might have inferred from this testimony that the claimant was suffering, not from a mere swollen bursa, but that the abscess or sinus was a tubercular abscess unrecognized at the time. The medical literature speaks of tubercular abscesses being unrecognized by physicians, who lance them, inevitably causing pyogenic infection which aggravates the tuberculous process. Be that as it may, however, we find no error, save several immaterial inaccuracies, pointed out with due meticulosity by counsel for the plaintiff in error, in the single director's award of compensation for the total loss of the use of the claimant's left arm.

Judgment affirmed. Gardner and Townsend, JJ., concur.