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EMPLOYERS LIABILITY ASSURANCE CORP. et al. v. HOLLIFIELD.
35937.
Workmen's compensation. Before Judge Davis. Catoosa Superior Court. August 15, 1955.
TOWNSEND, J.
The judgment of the superior court reversing the award on the ground that the facts found by the directors do not support it is without error, and the court properly entered up a legal judgment based upon the finding of fact as made by the board.
This is the second appearance of this workmen's compensation case. In Hollifield v. Croft Chenille Co., 90 Ga. App. 594 (83 S. E. 2d 584) it was held that the claimant's injury was compensable. The employer and its insurance carrier paid compensation for total disability from September 23, 1952, to June 2, 1953, and thereafter a hearing was requested to determine further amounts payable. Two physicians who had been treating the claimant testified, one of whom stated that he had changed his opinion expressed upon the first hearing of this case and now felt that the claimant's trouble was purely functional and that she should consult a psychiatrist. The other physician testified that the claimant had a 25 to 30 percent disability to her back; that she could not pick up heavy objects and that heavy lifting was particularly to be avoided, as well as repeated stooping and bending; that the claimant cannot perform strenuous labor although she might be able to do many types of light work, and that her condition was about the same as on previous occasions. The claimant testified that there " as no change in her condition, she is unable to do any kind of work; her back hurts most of the time and her leg and foot are numb and swollen; when her back hurts severely she also has pain in her right arm, her neck draws, she becomes nervous and unable to be around people. She has tried to go back to work and found she was unable to stand it but has not sought employment during the last year as her physical condition has remained unchanged. The hearing director found that the claimant's back has shown no improvement since the last hearing, that maximum improvement has been reached in that the claimant cannot be helped by surgery, and "I further find as a matter of fact that claimant is thirty percent disabled for performing any regular gainful employment that involved any stooping, bending, or lifting." (The claimant's injury occurred while pulling or tugging at a heavy bundle of spreads which constituted one of the duties of her employment at the time of her injury). Based upon these findings of fact, the director entered an award for permanent partial disability of 30 percent. She appealed to the full board which affirmed the award. She then appealed to the Judge of the Superior Court of Catoosa County, who reversed the award with the following judgment: "It is the judgment of the court that the facts found by the directors do not support the order or decree; that the claimant sustained a disabling and compensable injury arising out of and in the course of her employment while working for the Croft Chenille Company on or about 16th day of September, 1952; that the injury is of such nature and consequence as to render the claimant 100 percent totally and permanently disabled as a matter of fact and law; that she is unable to do any kind of manual labor or work or carry on any gainful occupation or employment which she is qualified to perform; that the thirty percent permanent physical impairment to claimant's back is such as to render her 100 percent totally and permanently disabled for performing work which requires stooping and bending of her back, and that the work in which claimant was engaged did require stooping and bending, and it nowhere appearing that claimant possessed skills or experience which would enable her to obtain any kind of remunerative employment which could be performed without stooping or bending." The exception is to this judgment.
Where there is an injury to a specific member listed under Code 114-406, and a percentage of loss of use of such member can be determined, compensation is payable in the relationship that the percentage of loss of use bears to the total loss of the member. Where the injury is not to a specific member, compensation must be determined under Code 114-404 "when the capacity to work resulting from an injury is total" or under Code 114-405 "where the incapacity for work resulting from the injury is partial." Under the two latter Code sections, "disability" means not percentage of physical impairment but percentage of impairment of earning capacity. Blue Bell Globe Mfg. Co. v. Baird, 61 Ga. App. 298 (6 S. E. 2d 83). It is obvious in the present case that if the claimant is suffering physical impairment resulting from her injury she is not entitled to compensation for loss of use of any member but is entitled to compensation for whatever loss of earning capacity she has sustained as a permanent result of the accident. "The incapacity for work resulting from such an injury is total not only so long as the injured employee is unable to do any work of any character, but also while he remains unable, as a result of his injury, either to resume his former occupation or to procure remunerative employment at a different occupation suitable to his impaired capacity.". Austin Bridge Co. v. Whitmire, 31 Ga. App. 560, 566 (121 S. E. 345); Lumbermen's Mutual Cas. Co. v. Cook, 69 Ga. App. 131, 136 (25 S. E. 2d 67).
Whether or not the claimant here is suffering from any permanent physical disability is a question of fact which the hearing director resolved in her favor by finding as a fact that she sustained an injury resulting in a 30 percent disability for performing any regular gainful employment involving stooping or bending. The record fails to show that the claimant was fitted for, was offered, or could have procured, any work other than her previous work which did involve stooping and bending. Accordingly, a finding was authorized and was made by the board that a disability for this type of work existed, and a finding was demanded under the evidence that the disability, if it existed, had resulted in total impairment of earning capacity. The judge of the superior court may reverse the award on the ground that the facts found by the directors do not support the order or decree. Code 114-710. He may also in such case enter up a proper judgment upon the findings of fact as made. American Mutual Liability Ins. Co. v. Brock, 35 Ga. App. 772 (2) (135 S. E. 103); Bituminous Casualty Corp. v. Elliott, 70 Ga. App. 325 (28 S. E. 2d 392). The hearing director having found that the claimant had reached maximum improvement, which award was affirmed by the full board, the judgment of the superior court that the disability of the claimant was permanent is without error.
Since the facts found by the hearing director demanded a conclusion that the claimant had suffered a 100 percent impairment of earning capacity and should be awarded compensation under the terms of Code 114-404, the Superior court on appeal did not err in reversing the award and entering up such judgment.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.
McClure & McClure, Wade H. Leonard, contra.
John M. Williams, for plaintiff in error.
DECIDED NOVEMBER 17, 1955.
Saturday May 23 02:54 EDT


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