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DUNCAN v. LIBERTY MUTUAL INSURANCE COMPANY et al.
38605.
Workmen's compensation. Fulton Superior Court. Before Judge Moore.
FELTON, Chief Judge.
The finding was authorized that there was no causal relation between the employee's injury and his death, and the superior court did not err in affirming the award denying compensation.
Evelyn Duncan, the widow of General L. Duncan, filed her claim under the Workmen's Compensation Act against the defendants, Grinnell Corporation and Liberty Mutual Insurance Co. A hearing took place on May 2, 1958, in Atlanta, before the Deputy Director of the State Board of Workmen's Compensation. Additional testimony in the form of expert or medical testimony was taken at a second hearing on December 8, 1958. On February 10, 1959, compensation was denied and claimant appealed to the full State Board of Workmen's Compensation on February 16, 1959, and on March 13, 1959, the full board denied compensation. Appeal was made to the Superior Court of Fulton County and on September 8, 1960, the judge of said court entered his order and judgment affirming the finding of the full board. On or about March 25, 1957, Duncan was working near a steel melting vat when some metal popped out and inflicted a burn on his back. He continued to work the remainder of the week and on the following Monday reported to his employer that the injury had occurred. He was sent to the company doctor who treated the burn. On April 1, 1957, Dr. Frank Eskridge, Jr., was called by the claimant who stated that Duncan had the flu and asked if the doctor would make a house call to examine him. Dr. Eskridge testified that he found Duncan moderately ill with a fever of 101 degrees, reddened throat, rales in the chest and 4 or 5 small pustules on the right cheek. Dr. Eskridge then administered treatment for these described conditions and was preparing to leave when his attention was called to the burn on Duncan's back. He examined the burn and stated that the treatment given for the other ill effects from which Duncan suffered was in his opinion proper medication for the burn also. Duncan's condition worsened and he was taken to a hospital on Saturday afternoon where Dr. Eskridge prescribed antibiotics and on Sunday his condition was reported about the same. He died Monday morning. Dr. Eskridge described in the death certificate the condition leading to death as acute bronchopneumonia. At the request of the claimant and the defendants an autopsy was performed by Dr. James Francis Olley who concluded therein that, "the patient died as the result of a cavernous sinus thrombosis secondary to an infected focus in the right cheek. The lesion in the right cheek is essentially an abscess secondary to furunculosis in this region. Insofar as the lesion on the back is concerned this is distinctly a lesion of localized hyperthermia which has become secondarily invaded with bacteria with resulting acute inflammation. . . . In our opinion, there is no demonstrable relationship between the two skin lesions." A vast amount of testimony was taken at the hearing, the most pertinent parts of which were given by Dr. Eskridge and Dr. Olley. The autopsy report showed, and both doctors agreed,
that the cheek infection and the burned back infection both contained streptococci germs and that the thrombosis causing the death was caused by streptococci infection. In substance, both doctors testified that in their opinion the cheek infection was responsible for the thrombosis causing death and that the back infection did not contribute to the cheek infection or to the thrombosis. Both doctors admitted that it was possible that infection could in some manner have been transmitted from the back to the cheek. It is to the ruling of the superior court in affirming the order of the full board that the claimant excepts.
It is apparent throughout the ream of evidence and testimony in this case, that the autopsy and both expert witnesses show that the cause of death originated from the cheek infection. Admittedly both doctors were quick to say that the infection from the wound on Duncan's back could have been transmitted in diverse ways to other parts of the body including the cheek and the sinus cavity where the thrombosis occurred. They both testified however, that it was their opinion that the cause of death originated in the cheek and that the back infection did not contribute to death. Here, once again, we are faced with definite opinion testimony and the weight to be given it as against speculative testimony given by the same witnesses. U. S. Casualty Co. v. Kelly, 78 Ga. App. 112, 116 (50 S. E. 2d 238). "It appears to be well settled that medical testimony as to the possibility of a causal relation between a given accident or injury and the subsequent death or impaired physical or mental condition of the person injured is not sufficient, standing alone, to establish such relation." 135 A. L. R. 517. "A long line of decisions of this court and of the Supreme Court, too numerous to be cited here, are predicated upon the principle of law that where there is any competent evidence to support the findings of the board, such findings will not be disturbed." LaBranche v. American Auto. Ins. Co., 89 Ga. App. 148, 156 (78 S. E. 2d 621) and cit. In American Mutual Liability Ins. Co. v. Brackin, 68 Ga. App. 256 (1) (23 S. E. 2d 505) the court said: "The weight to be given to expert testimony is a question exclusively in the jurisdiction of a fact-finding tribunal. Where, as in this case, the expert testimony was in conflict, tending to show, on the one hand, that the disease with which the claimant was afflicted was not caused by and had no connection with the injury suffered in the course of his employment and arising out of it, and on the other hand, that the disease was caused by the injury, a finding by the industrial board that the injury did not cause or aggravate the disease was supported by some competent evidence and can not be set aside by the superior court on the ground that the award was without evidence to support it."
In this case when the defendant introduced in evidence the autopsy, a prima facie presumption was established that the cause of death was the cause stated therein. Thus, in addition to the initial burden of proof upon the claimant, the burden of overcoming the prima facie cause of death stated in the autopsy could only be overcome by the introduction of competent evidence of probative value showing that the cause of death was not the cause stated in the autopsy. We think it clear, under the evidence of this case, that the finding was authorized that the claimant was not entitled to compensation. Therefore, the court did not err in affirming the judgment of the State Board of Workmen's Compensation which denied compensation.
Judgment affirmed. Nichols and Bell, JJ., concur.
Greene, Neely, Buckley & De Rieux, Burt De Rieux, contra.
Reeves & Collier, Rex T. Reeves, Merrell Collier, for plaintiff in error.
DECIDED APRIL 17, 1961.
Friday May 22 23:26 EDT


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