Maryland Casualty Company v. Pitman, 35 S.E.2d 319

Maryland Casualty Company v. Pitman

35 S.E.2d 319 | Ga. Ct. App. | 1945

The court did not err in affirming the award of the State Board of Workmen's Compensation.

DECIDED SEPTEMBER 20, 1945. On June 22, 1943, the State Board of Workmen's Compensation rendered an award finding that J. L. Pitman, an employee of Texas Company, had been totally disabled by an injury arising out of and in the course of his employment. The award was against Texas Company and its insurance carrier, Maryland Casualty Company. On an appeal to the superior court, the award was affirmed, and that judgment was affirmed by this court (Maryland Casualty Co. v.Pitman, 70 Ga. App. 670, 29 S.E.2d 102) on February 4, 1944. However, on July 13, 1943, the defendants filed an application for another hearing on the ground of "a change in the physical condition of the claimant." The hearing was held, and on July 21, 1943, the hearing director made an award finding that the physical condition of the claimant had not changed since the award of June 22, 1943. The award of July 21, 1943, was affirmed by the board on September 7, 1943, and from the latter award no appeal was taken. However, on August 2, 1944, the defendants requested another hearing, because of a change in Pitman's physical condition. The hearing was granted; and, on November 1, 1944, the hearing director made an award finding that there had been no change in Pitman's physical condition since the award of June 22, 1943, and directing the employer to continue the payments to Pitman (which had been discontinued during the litigation) from the date of the last payment. That award was affirmed by the full board and by the superior court, and the judgment of the superior court is assigned as error in the present bill of exceptions. The controlling question in this case is whether the evidence on the last hearing showed that Pitman's physical condition had improved since the award of July 21, 1943; and the burden of showing such a change was upon the defendants. The previous awards were conclusive as to all the facts of the case, except as to a change in Pitman's physical condition subsequently to the award of July 21, 1943. Rhindress v. Atlantic Steel Co., 71 Ga. App. 898 (32 S.E.2d 554).

On the hearing now under review, the evidence was somewhat conflicting. One physician testified that he examined Pitman on July 14, 1944, and, in his opinion, Pitman had a forty to fifty per cent permanent partial disability, and that he was not totally disabled. However, the same witness testified positively that Pitman's physical condition, when he was examined on July 14, 1944, had not changed from what it was on June 22, 1943, and that, if he was totally incapacitated on that date, he was in the same condition on July 14, 1944. Another physician testified that he had "recently" examined Pitman, and, in his opinion, Pitman had a thirty-five to forty per cent disability; but the witness further stated that he could not say that Pitman's physical condition had changed from what it was on June 22, 1943. It is settled that the opinionative testimony of medical experts is not conclusive on the hearing of a workmen's compensation case, but may be accepted or rejected by the hearing director. Pitman, the claimant, testified that his present physical condition had worsened since the award of June 22, 1943. In our opinion the evidence as a whole amply authorized the director to find that Pitman's physical condition had not improved subsequently to the award of June 22, 1943; and, if on July 14, 1944 (the date of the last physical examination of Pitman), his physical condition had not changed since the award of June 22, 1943, then it logically follows that his physical condition had not changed since the award of July 21, 1943.

The judge of the superior court did not err in sustaining the award of the full board.

Judgment affirmed. MacIntyre and Gardner, JJ., concur. *840