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Workmen's compensation. Whitfield Superior Court. Before Judge Vining.
HALL, Presiding Judge.
When there has been personal consultation with the patient, a psychiatrist's expert opinion concerning the cause of his mental condition is not subject to the objection that the opinion is based on hearsay.
The employer and insurer appeal from the judgment of the superior court reversing an award of the Deputy Director of the State Board of Workmen's Compensation and remanding the matter for further hearings.
The claimant severely injured his right hand in November 1968 working in a carpet mill. He received weekly benefits under an agreement that he had a 100% loss of use of the hand. In September 1969, his attending physician reported that he bad shown improvement and that the loss of use was then 62%. The employer and insurer requested a change of condition hearing. Almost simultaneously, the claimant requested a similar hearing, contending that he was entitled to total disability benefits.
At the hearing, the attending physician's deposition repeated his opinion that claimant's present disability rating was 62%. An agent of the employer testified that the company had offered claimant a job pushing a handcart loaded with carpeting at $1.70 per hour, but after a trial period claimant said he couldn't do the work. He was "sent home" since there were no other suitable jobs available. Upon questioning by the director, the employer again tendered claimant the handcart job and it appears from the transcript that both sides stipulated that the wages would be the same as those claimant was earning prior to his injury. Claimant testified that since the injury he had been nervous, jittery, annoyed by loud noises and unable to work. He stated that he had consulted a Dr. MacNaughton in Chattanooga for his nerves. Claimant requested that the record be kept open for 30 days in order to take and submit Dr. MacNaughton's deposition. The deposition was taken within the time allowed and sent to the board. In summary, the doctor testified that claimant had a neurosis caused, in his opinion, by the injury to his hand.
The director made the following findings of fact: (1) that claimant had a permanent 62% loss of use of his hand; (2) that he was partially incapacitated for work because of superadded injury traumatic neurosis associated with the injury; and (3) that on the hearing date. he was offered employment suitable for his impaired capacity at a wage equal to or greater than $62.25 per week. Based on these findings the director made an award on March 20. a portion of which was for partial incapacity to work (Code Ann. 114-405) and covered only the retroactive period November 1969, January 1970; and a portion of which was for a permanent partial handicap, beginning in January 1970 and running for the full statutory period of 170 weeks at the weekly rate of $25.39 (Code Ann. 114-406) which included an award for total incapacity to work (Code Ann. 114-404) beginning in January and running for 10 weeks.
The superior court set aside the award in its entirety, particularly stating that the latter portion ($25.39 for 170 weeks) was not supported by the evidence and was contrary to law, and singling out finding number 3 for quotation. It recommitted the controversy to the board for further hearings. Read as a whole, the order can only mean that the court did not believe there was evidence to support the factual finding that claimant was tendered employment within his capacity and that the low amount of the award reflected this erroneous finding and was therefore contrary to law.
Even though the trial court's ruling was largely in their favor, the employer and insurer appealed this judgment, enumerating as error the court's reversal of the award in toto, and its failure to specifically affirm finding number 1 (and the portion of the award applicable to it) and to reverse finding number 2 as not supported by any evidence. They strongly contend that Dr. MacNaughton's deposition was never tendered into evidence and therefore could not be considered either by the director or by the court; that to remand and give claimant another chance to introduce this evidence is improper; or alternatively, if the deposition was properly before the board, it was of no probative value on the question of causation since the opinion was based purely on hearsay as related to the doctor by the claimant,
The appellants' contention of lack of formal tender is without merit, In another workmen's compensation case where the record was left open for 30 days to receive medical testimony, this court held: "While it does not appear that these depositions were formally introduced in evidence, it appears that they were taken by the claimant for the purpose of being submitted to the director and to the board when taken, and that it was contemplated between the parties acting by and through their attorneys that the depositions would be used as evidence in the case and that they were transmitted to the board. Under these circumstances the director and the board properly considered the depositions as evidence in the case . . ." Hembree v. Chevrolet Motor Division, 108 Ga. App. 113, 114 (131 SE2d 859). Since Dr. MacNaughton's deposition contains a stipulation between counsel that it was taken for the purpose of evidence, it falls squarely within the Hembree rule and was properly considered by the director and the court. See also Peters v. Liberty Mut. Ins. Co., 113 Ga. App. 41 (2) (147 SE2d 26). This holding is not in conflict with Smith v. Continental Cas. Co., 102 Ga. App. 559 (116 SE2d 888); Howell v. Federated Mut. &c. Ins. Co., 114 Ga. App. 321 (151 SE2d 195); and Jackson v. U. S. Fidel. &c. Co., 119 Ga. App. 111 (166 SE2d 426) as these cases are distinguishable on their facts.
2. The second contention raises an issue never specially considered by the Georgia courts whether a psychiatrist's opinion evidence on the cause of a patient's disturbed mental condition is of no probative value since based upon statements related to him by the patient (hearsay).
Several peripheral rules come into play here. First, a physician may not testify to a history of the accident or injury as given him by the patient since it is hearsay. Paulk v. Thomas, 115 Ga. App. 436 (154 SE2d 872); Atlanta, K. & N. R. Co. v. Gardner, 122 Ga. 82 (49 SE 818). This same rule also "applies to opinions which are based upon the patient's hearsay or his subjective complaints." Paulk v. Thomas, supra, p. 439. Atlantic C. L. R. Co. v. Clinard, 93 Ga. App. 64 (90 SE2d 923). However, these cases all deal with physical injury or disease, and the physician may. of course, give opinion evidence that the patient has a particular injury or disease (or is insane) based upon his personal observation and examination of the patient. Graham v. Clark, 114 Ga. App. 825 (152 SE2d 789); Potts v. House, 6 Ga. 324 (50 AD 329). If the facts upon which he bases his opinion are within his own knowledge. It is not even necessary that his testimony be in the form of an answer to a hypothetical question. Corbin v. State, 81 Ga. App. 353 (58 SE2d 485).
The appellants' objection here, however, is apparently not the admission of the expert opinion that claimant has a neurosis, but that his industrial injury caused this mental condition. We see an analogy to a case which discussed the admissibility of opinion evidence on the "ultimate issue" in the case (disability).
"The very question of disability and the extent of it are relative. If exceptions are made in such matters as value, insanity, and the identity of handwriting, and in similar case's where the thing sought after is found only in the realm of the subjective, where no witness could point his finger and say 'it is here' or 'it is there,' it seems to us that there might well arise, as ii' the instant case, physical disability of such nature and character, antI the extent of which might be so difficult of ascertainment, that a jury, in order to do justice between the parties, should very properly have the benefit of the belief and opinion of an expert who has brought to the subject his skill and superior knowledge and facilities. True it is that the jurors are the ultimate triors ut we think it is also true that if the nature of the question is such that the factors leading to a conclusion are not known to the common or average man, but are among those things shrouded in the mystery of professional skill or knowledge, then the light of that knowledge should not be withheld from the jury because of such a fine distinction in the ordinary rules of evidence . . . So on this important question we . . . hold that opinion evidence of experts on the final question at issue may be received and that [the jury] may give just such weight to it as in all the circumstances they may see fit to do." Metropolitan Life Ins. Co. v. Saul, 189 Ga. 1, 8, 11 (5 SE2d 214).
Certainly the cause of mental illness is "in the realm of the subjective," and "shrouded in the mystery of professional skill or knowledge." It seems clear that the fact finders in such cases should have "the benefit of the belief and opinion of an expert."
Further, and contrary to appellants' contention, Dr. MacNaughton's opinion was not based merely upon what the claimant told him. On cross examination the doctor stated in some detail that a diagnosis is based not only on the patient's statements but also on physical manifestations as he is speaking (e.g. how the patient sits or moves, dilation and direction of the eyes, facial demeanor, speed of speech, etc.) as well as inconsistencies in the statements themselves. These would be facts based on the doctor's "personal observation" and therefore within the general rule stated above. See: Anno. 66 ALR2d 1082, 1100, 5 (f); 31 AmJur2d 640, Expert and Opinion Evidence, 111; 7 Wigmore on Evidence 121, 1976; Terry Dairy Products Co. v, Cash, 224 Ark. 576 (275 SW2d 12); Ford v. Blythe Bro. Co., 242 N. C. 347 (87 SE2d 879); Humphrey v. Twin State Gas &c. Co., 100 Vt. 414 (139 A 440).
Finally, to hold psychiatric evidence inadmissible on a technical ground designed for completely different purposes, would be to eliminate the only truly competent evidence on questions involving mental condition other than the simple issue of sanity versus insanity. These questions arise not only in workmen's compensation (because psychological disability resulting from injury is compensable) but also in the broad fields of torts and juvenile law, for example. To foreclose this evidence would be a backward step in the pursuit of enlightened justice. See Polier, Rule of Law and Role of Psychiatry (Johns Hopkins Press, 1968).
For all these reasons, the contention is without merit.
3. Nevertheless, the court did err in reversing the award on the grounds of insufficient evidence to support finding Number 3. The transcript shows that the tender of employment at the stated wage was made, Whether the job was within the claimant's capacity was a factual determination within the province of the director who had before him testimony concerning the nature of the work, a complete medical report on the claimant, and the physical presence of the claimant himself. Whether we or the superior court agree with the finding is irrelevant. It should be affirmed under the "any evidence" rule.
While it appears that the employer and insurer have success-fully prosecuted the appeal and obtained a reversal of the judgment of the superior court, nevertheless the effect of the judgment of this court and the judgment to be entered by the superior court pursuant thereto is to place the employer and insurer in the exact position occupied by them under the award made by the Workmen's Compensation Board. The same is true as to the employee. He derived no benefit from any of the appeals and suffered the expense and inconvenience in resisting them. Consequently the burden of the appeals must be suffered by the employer and insurer and the costs in connection with this appeal are taxed against them.
Judgment reversed with direction that the superior court affirm the award of the director. Eberhardt and Whitman, JJ., concur.
Smith, Cohen, Ringel, Kohler, Martin & Lowe, Williston C. White, for appellee.
Woodruff, Savell, Lane & Williams, Lawson A. Cox, II, for appellants,
Friday May 22 15:31 EDT

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