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Workmen's compensation. Bibb Superior Court. Before Judge Aultman.
FELTON, Chief Judge.
1. The motion to strike the enumeration of errors and brief is denied.
2. The judgment of the superior court reversing the award of the State Board of Workmen's Compensation is affirmed with direction that the case be remanded to the board for a hearing and award based on the correct theory of law as herein set forth.
Claimant commenced receiving compensation payments on January 4, 1963, under an agreement approved by the State Board of Workmen's Compensation on June 14, 1963, for an injury specified as "concussion of head," sustained on December 28, 1962. On December 22, 1964, following the August 19, 1964, change of condition hearing requested by the employer and insurer, the deputy director made the following findings of fact: That there is no evidence in the record as to whether or not any brain injury was occasioned to claimant by her fall; that all medical reports in the record, as well as Dr. Martin's testimony, indicate that such findings were negative; that the director recognized that there could or may be a resulting traumatic psychosis, but that there is nothing to indicate this in the record; that it does appear that claimant has suffered an injury to both eyes, which could account for her other alleged symptoms; that her condition had not changed since the compensation agreement was executed. The original agreement was considered as being based on Code Ann. 114-400, rather than Code Ann. 114-404, and the motion for a change of condition was denied. On April 6, 1905, a hearing was conducted under the provisions of Code Ann. 114-501, as requested by claimant, to determine liability for medical expenses, penalties and attorney's fee arising out of psychiatric care and hospitalization. In an award on July 16, 1965, the deputy director found that all of the evidence of claimant's symptoms and treatment was available to her prior to the August 19, 1964, hearing and that the December 22, 1964, award, unappealed from, was res judicata, denying her claim. The full board adopted the deputy director's findings of fact and likewise denied compensation under Code Ann. 114-501. On appeal, the superior court reversed the board's award, from which judgment the employer and insurer appeal.
1. Service of the enumeration of errors, formerly required to be by certified mail, need be made only by mail under the provisions of Code Ann. 6-902 (Ga. L. 1965, pp. 18, 31) as amended by Ga. L. 1966, pp. 493, 498. The motion to strike the enumeration of errors and brief is denied.
2. The purpose of the August 19, 1964, hearing was to determine whether claimant had undergone any change in her condition subsequent to the original award which would affect the amount of the compensation payments established by that award. The burden of proof of a change in the claimant's condition was on the employer and insurer, who requested the hearing. Indemnity Ins. Co. v. Davis, 98 Ga. App. 656 (106 SE2d 172). The claimant, therefore, was not obliged at that hearing to introduce evidence supporting a claim for expenses incurred as a result, not of any change in her condition, but an illness directly caused or aggravated by the compensable injury. Hence, the issue of liability resulting from any possible brain injury was not necessarily involved in the change of condition hearing. Although the deputy director commented on the possibility of brain injury, traumatic psychosis, etc., he found that there was nothing in the record to indicate such injury. Since this issue was not there involved, the absence of evidence in that regard could not leave the effect of making the award res judicata as to this issue. The evidence introduced showed no change in condition. The claimant could rely on what was enough to show no change. She was not required to show that her condition was in fact worse. This issue was properly raised by the application for a hearing under the provisions of Code Ann. 114-501, by which claimant sought to show liability on the basis of seeking medical expenses to produce an improvement of her condition, rather than showing a change of condition. See City of Atlanta v. Padgett, 68 Ga. App. 96, 108 (22 SE2d 197).
The awards of the deputy director and the full board were leased on the theory that the claimant was estopped to recover the claimed expenses by her failure to produce the available evidence thereof at the change of condition hearing instigated by the employer and insurer. Since this theory is erroneous, as discussed hereinabove, the awards denying the claim on this theory were properly reversed by the superior court. The case is affirmed with direction that it be remanded to the board for another hearing and award in accordance with the principles herein enunciated.
O. L. Crumbley, for appellee.
Harris, Russell & Watkins, Philip R. Taylor, for appellants.
Friday May 22 20:34 EDT

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