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LaBRANCHE v. AMERICAN AUTOMOBILE INSURANCE COMPANY et al.
34723.
Workmen's Compensation. Before Judge Byars. Spalding Superior Court. May 13, 1953.
GARDNER, P. J.
The court did not err in affirming the findings of the State Board of Workmen's Compensation denying compensation to the claimant.
Paul LaBranche, Jr. (hereinafter called the claimant) filed a claim with the State Board of Workmen's Compensation for permanent and total disability, which the claimant contends resulted from an alleged injury received December 19, 1951, while working for Seckinger Sons Company, Inc., at Griffin, Georgia. Seckinger Sons Company, Inc., and American Automobile Insurance Company, the insurance carrier (herein after called the defendants) are the defendants in error here. The case was first heard before the Chairman of the State Board of Workmen's Compensation, whose decision was in favor of the defendants. The case was then appealed to the full board, and the findings of the single director were affirmed. Subsequently, the case was appealed to the Superior Court of Spalding County, where the former findings were affirmed.
The case now before this court complains of the ruling of the judge of the superior court, in that the evidence was insufficient to sustain the verdict, and complains of evidence in the following language: "Because said award is based on the opinion testimony of the doctors as to what was or was not a contributing cause of claimant's injury and disability, said testimony being contrary to law and having no probative value." Therefore, the question for determination is whether or not there was reversible error in the findings of the State Board of Workmen's Compensation, affirmed by the superior court, declining to make an award to the claimant because it was alleged that the claimant did not meet with an accident and injury which arose out of and in the course of his employment, and which alleged injury resulted in the disability of which complaint is made.
Inasmuch as this case is to be affirmed on the basis of insufficiency of competent evidence to sustain an award in favor of the claimant, as previously found by the State Board of Workmen's Compensation and affirmed by the superior court, we shall give the evidence somewhat in detail.
The claimant testified in his own behalf substantially: that he and others were running a pipe across the ceiling to some tubes right off the ceiling; that he was standing on a ladder holding up a piece of pipe weighing about eighteen or twenty pounds and measuring with the other hand, when he felt something tear loose inside; that there was a tearing pain followed by a hot burning approximately right between his ribs and his navel on the right side; that he dropped everything to the floor and got down from the ladder; that the pain lasted for quite a while and he was bent over; that he became nauseated and vomited blood; that he reported it to the foreman, Bill Stansell, and described what had happened; that the foreman told him to try to continue work if he could, and the claimant tried to keep up for about an hour and a half, but he got so sick he could not stay on the job that he left in his trucks and while driving home became dizzy and could not drive; that he went to a filling station and asked someone to park his truck for him and then went home and went to bed; that his wife came home later and tried to get a doctor, but could not get one to cone out that day; that Mr. Hart, from the company where claimant was employed, came to see the claimant the next morning and told him that he ought to be in the hospital, whereupon the claimant said he didn't have any money; that Mr. Hart told him that the Seckinger Company always stood by their men; that he had been vomiting blood and passing blood from his bowels all during the night and the next day; that Dr. Harry King finally saw him and sent him to Griffin-Spalding County Hospital; that he was operated on and stayed in the hospital thirty-two days; that he stayed at home about two weeks and then went to Jackson, Mississippi; that he also went to the Veterans Hospital in February; that he tried to work for about three weeks, covering tubes and wrapping lead pipes with copper; that such was not strenuous work, but the bending over caused him to vomit continuously; that he is now on a bland diet and eats just a small amount six times a day; and that his stomach will hold no more than that of a two-year-old baby. The claimant further testified: that he was discharged from Hospital 48 about two weeks before the hearing; that he was given medicine to quiet him; that there has been no improvement in his condition; that he has lost about forty pounds; that before December 19, 1951, he had been working regularly, was not on any kind of diet, and could eat anything; that he draws $63 a month from the Government for non-service connected disability, which they rate as permanent total disability, for his condition stated as "gastritis, permanent total disability" (all based on what happened to him while working at Griffin) ; that the V. A. claim was approved in June, 1952, and was effective as of February, 1952; that he had never had any trouble with his stomach before December 19, 1951; that the work he tried to do since the accident was in October, 1952, for the Continental Engineers; that at that time he talked with Mr. Black and Mr. Hart about returning to work for Seckinger, and they said they could give him a few days trial, but he became acutely ill and did not go.
The claimant, upon being recalled, testified that, in August, 1951, he went to Dr. J. C. Blalock and X-rays made at that time showed a slight trace of an ulcer in the lower colon; that subsequently the Veterans Administration found that the blood in the claimant's rectum was caused from internal hemorrhoids; that Dr. Blalock did not tell the claimant that the claimant had a duodenal ulcer.
Dr. Blalock testified that the examination of the claimant in August, 1951, showed a posterior duodenal ulcer; that the claimant was put on a diet; that the witness did not think a strain would rupture an ulcer into a bleeding stage; that a duodenal ulcer as a developmental disease, which eventually leads to erosion through the wall and bleeding; that, if the claimant vomited a lot of blood from his stomach, he had been bleeding long before he ever got on the ladder.
Albert Stansell testified for the claimant that he was foreman on the job when the claimant got sick; that the claimant worked under the witness; that on the day the claimant became ill, he "came and said he was sick . . . at his stomach." Subsequently the witness went to see the claimant in the hospital, and the claimant said nothing to him about having been hurt on the job.
The president of Seckinger Sons Company, Inc., testified for the defendants that the claimant came to the witness the latter part of 1952, stating that the claimant was out of the hospital and was then in good shape and ready to go back to work. He testified that the claimant said nothing about having an accident on the job and said nothing about a claim pending against the company.
There was testimony from S. R. Black on behalf of the defendants to the effect, that the witness was engineer with Seckinger at the time the claimant was working in Griffin; that the witness went to the hospital to see claimant before he had the operation; that the claimant did not say anything to him about any accident or anything on the job; that he saw the claimant twice after the operation, and nothing was said about any straining or accident or anything that happened on the job other than that the claimant got sick; and that the claimant had not gone into any details about what happened, in his discussions with the witness.
J. E. Scoggins, a fellow employee with the claimant, was also called and testified that the claimant had said nothing to the witness about having had any accident or any strain or suffering or pain or any hurting connected with the alleged accident; that the claimant told the witness that the claimant just got sick or "something like that"; that the claimant was very sick when the witness saw him in the hospital and that the accident was not discussed; that the witness just tried to cheer up the claimant; and that the claimant was in a very weak condition due to loss of blood.
John J. Hart testified on behalf of the defendants: that he was foreman on the job on which the claimant was working; that the claimant said nothing to the witness on December 19, 1951, (the date of the alleged accident) about having had any accident on the job; that the claimant told the witness he got sick and had to leave, that the witness had never heard about any straining or anything breaking loose in the claimant's stomach until the morning of the hearing; that the witness went to see the claimant several times in the hospital, and that the claimant never at any time mentioned any straining or breaking loose of the claimant's stomach until the morning of the hearing; that the claimant was fully conscious and talked in a rational manner to the witness when the witness visited him on many occasions in the hospital; and that Mrs. LaBranche had never said anything to the witness about the claimant having any accident or about anything happening to the claimant on the job.
Not one of the witnesses, either for the claimant or for the defendants, testified that the claimant claimed on the morning of the alleged accident that anything in the nature of an accident had happened to the claimant. The claimant testified on this point as follows: "I felt like something tore loose . . . I got sick and vomited blood . . . I reported it to the foreman, Bill Stansell . . . I told him something happened to me on that line . . . I told him something tore loose . . . and I was real sick and vomited blood."
Dr. W. R. King, Jr., testified on behalf of the defendants substantially: that he first saw the claimant at the hospital December 20, in profound shock from loss of blood and bleeding from a duodenal ulcer; that the claimant was given sedatives and blood transfusions for several days to build him up for surgery, and then was operated on; that they found an ulcer in the duodenum, which was closed across, and part of the stomach was removed during the operation; that the claimant made an uneventful recovery, but was very nervous and could tolerate only a small feeding; and that the claimant was discharged from the hospital, and there was no evidence of hernia or infection. In the witness's opinion, the ulcer in the duodenum which was found had nothing to do with any injury, accident, or trauma; that, as the witness remembers, it was mentioned to him that the claimant was working when he had this pain he had in his stomach; that about two-thirds of the claimant's stomach was removed; that, in his opinion, a bleeding ulcer is a disease process, and not an injury; that there is no outstanding pain with a bleeding ulcer, but a ruptured ulcer causes very excruciating pain, and is usually accompanied by shock; that a ruptured ulcer is a disease process, an ulcer with a hole all the way through the stomach; that he saw the ulcer when he operated, and it was not a ruptured ulcer; that the ulcer had not broken through the peritoneum cavity; that he found old blood in the intestines; that, in his opinion, the activity claimant was engaged in when he felt the pain had nothing to do with the breaking down of the blood vessel and the ulcer; that heavy physical exertion and strain might cause it to break down earlier than otherwise; that the witness's idea of a bleeding ulcer is that it is caused by erosion, and it is possible but not probable that strain can cause an ulcer to bleed; that the perforation can come at any time just due to the natural progress of erosion, regardless of what a person is doing. The witness further testified that in his opinion physical exertion and strain would not cause the rupture of an ulcer; and further that in his opinion the activities of the claimant at the time he was seized with the pain had nothing to do with the bleeding of the ulcer.
While it is true, as argued by able counsel for the claimant, that opinion testimony is entitled only to weight when considered with probability and reason, in the instant case two qualified physicians testified that the causative factor involved in the bleeding of an ulcer is erosion, or the natural result of a progressively maturing ulcer. This carries the instant case out of the domain of probability, and into the realm of fact and reality. To our minds the testimony of the physicians was not based on speculation and/or conjecture, but on testimony of qualified experts. Evidence from this source has been accepted or rejected, down through legal history, whenever juries, or fact-finding bodies or the proper legal forum, see proper to accept or reject such, or may be rejected whenever other evidence is more preponderant. In the case of the State Board of Workmen's Compensation, great leeway is allowed in the form of pleading and procedure, as well as in the way of acceptance or rejection of testimony. The instant case is not controlled by the case of Hartford Accident &c. Co. v. Camp, 69 Ga. App. 758 (26 S. E. 2d 679), inasmuch as the facts in that case differ from those in the instant case to a sufficient degree not to be the basis of a reversal of the instant case. The evidence in that case on the first trial and on the second trial was conflicting. The finding of the board was reversed by the superior court and affirmed by this court, not on the ground of a physician's testimony, which was rejected, but on the ground that the question was res adjudicata. Such is not our problem in the instant case.
In Travelers Insurance Co. v. Thornton, 119 Ga. 455 (46 S. E. 678), cited by the claimant, the testimony of the physician was shown to go too far, in that "He [meaning the physician] can give his opinion on physical facts or as to the medical facts, but he can not determine the legal classification of such facts. It was not proper for him to use the language of the decision and testify that the hernia was a 'contributing cause.' That was a mixed question of law and fact, to be determined in the light of all the evidence; and it would have been as improper to permit such testimony as it would have been in an ordinary case to allow a witness to say that a particular act amounted to negligence, or to contributory negligence, or that another fact was the proximate or a remote cause. The expert may aid the jury, but he can not act as a member of the jury; nor, while on the stand, can he transcend the functions of a witness, and under the guise of giving testimony, state a legal conclusion." P. 456. Nevertheless, even in view of the physician's testimony in that case, in which the testimony was far more out of line than in the instant case, the Supreme Court affirmed the lower court, stating in part (at p. 455), "It was left for the jury to say whether the injury was caused by the fall, and aggravated by the hernia, or whether the hernia was a contributing cause to the injury." We think that that ruling, which has been many times followed, is sufficient for this court to state that the testimony of the physicians in the instant case could be accepted or disregarded, and that there is nothing to show that the prerogative of the fact-finding body was usurped in any way. To hold otherwise would uproot all the calculated rulings of this court and of the Supreme Court, and would be oppressive restrictions on the board. It must be assumed that the board makes a quantitative appraisal of the relevant factors involved in each and every case considered, and that in the course of their experience the board's conclusions express an intuition of experience which outruns legal analysis and sums up many unnamed and tangled impressions so that by and large justice is served. Cumulative experience, in which evidence is accepted and/or rejected, is reflected by the findings of the board in the instant case. Counsel also cites Gem City Life Ins. Co. v. Stripling, 176 Ga. 288 (168 S. E. 20); Brown v. Lumbermen's Mutual &c. Co., 49 Ga. App. 99 (174 S. E. 359); and Williams v. Maryland Casualty Co., 67 Ga. App. 649 (21 S. E. 2d 478). The facts in those cases are not such as are found in the case at bar. Different disabilities were involved.
2d 429); Maryland Casualty Co. v. Sanders, 182 Ga. App. 594 (186 S. E. 693). We will not lengthen this opinion with further citations.
The court did not err, for any of the reasons assigned, in affirming the award of the State Board of Workmen's Compensation.
Judgment affirmed. Townsend and Carlisle, JJ., concur.
Miller & Head, Samuel A. Miller, contra.
Led B. Guillebeau, for plaintiff in error.
DECIDED OCTOBER 10, 1953 -- REHEARING DENIED NOVEMBER 10, 1953.
Saturday May 23 04:17 EDT


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