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DUDLEY v. SEARS, ROEBUCK & COMPANY.
41115.
Workmen's compensation. Clayton Superior Court. Before Judge Banke.
NICHOLS, Presiding Judge.
An award of the State Board of Workmen's Compensation based solely upon ultimate facts found by the board without findings of the specific facts on which such ultimate facts are found must be remanded to the board with the direction that definite findings of fact be made in accordance with the provisions of Code 114-707.
Mrs. Sarah N. Dudley filed a claim for workmen's compensation against Sears, Roebuck & Company in which she alleged an injury "arising out of and in the course of employment on the 4th day of February, 1963." The evidence disclosed that the claimant worked in a catalog order store and her duties included lifting and delivering packages to customers. She began work in June 1962 and worked until February 4, 1963, when she was unable to continue because of back pain. The director hearing the case found against the claimant as did the full board and the superior court on subsequent appeals. The claimant assigns error on the judgment of the superior court adverse to her.
The findings of the deputy director which were adopted by the full board in the present case consisted of a narrative of the evidence adduced at the hearings and depositions and the following:
"Findings of Fact.
"After careful consideration of all the evidence, I find as a matter of fact, that Mrs. Sarah N. Dudley, employ-claimant, alleges that she suffered an accident and injury while working for the defendant in the latter part of July, 1962; that she continued to work for defendant until February of 1963.
"I further find that she had prior disc surgery in 1951, and that she again had disc surgery on October 4, 1963.
"I further find from the testimony of Doctor Swanson that claimant had vulnerable and unstable back because of her previous pathology, to which was added more recently her ruptured disc, that claimant presented different symptoms in April of 1963, than that presented in September of 1963, when there was an acute change in the picture she presented; that there is no medical way to determine when this condition started, but the disc developed in September of 1963, and she showed no manifestation of an intervertebral disc prior to this date; that the last surgery performed was above the old level of disc surgery performed in 1951.
"I further find that I am unable to conclude that the present disability of claimant is due to an accident and injury which occurred in July of 1962.
"I further find that claimant has failed to carry the burden of showing that she suffered an accident and injury while working for defendant which occurred in the manner as alleged by claimant.
"I further find that the evidence is inconclusive to show that proper legal notice of an accident and injury was given by claimant to defendant according to law, and in the manner as alleged by claimant.
"I further find that claimant having failed to show a compensable injury within the meaning of the Workmen's Compensation Act, that her claim for compensation benefits must therefore be denied."
"In workmen's compensation cases, it is a requirement of law that the award of the director, deputy director, or board be accompanied by a statement of the findings of fact from the evidence in the case. Code 114-707. 'Where there are no findings of fact the finding of ultimate facts is not warranted unless possibly when all the evidence demands certain findings.' Bituminous Cas. Corp v. Chambers, 84 Ga. App. 295 (66 SE2d 196). 'This requirement contemplates a concise but comprehensive statement of the cause and circumstances of the accident as the commission shall find it to have occurred . . . it is contemplated by section 57 of the Act that the commission shall adjudicate and file a statement of the facts supporting the legal conclusions arrived at.' Metropolitan Cas. Ins. Co. v. Dallas, 39 Ga. App. 38, 40 (146 SE 37). 'What we meant in that case [ Southeastern Express Co. v. Edmondson, 30 Ga. App. 697, 119 SE 39] was that a mere statement that the commission finds that the injury arose out of and in the course of the employment is not such a finding of fact as would justify an award, when it stands unsupported by any other findings of fact to justify it as a conclusion.' American Mutual Liability Ins. Co. v. Hardy, 36 Ga. App. 487, 490 (137 SE 113)." Hodges v. Fidelity &c. Co., 105 Ga. App. 273 (124 SE2d 435).
The ultimate finding that the claimant had disc surgery in 1951, and again on October 4, 1963, was undisputed and possibly could be warranted (see Bituminous Cas. Corp. v. Chambers, 84 Ga. App. 295, supra), and the facts based upon the testimony of Dr. Swanson meet the requirement set forth by the Workmen's Compensation Act as shown above, but such findings, standing alone, would not authorize a finding of the ultimate facts necessary to a decision of the claimant's case, to wit: Did she suffer an injury arising out of and in the course of her employment and did she give notice to her employer sufficient to comply with the Workmen's Compensation Act?
EBERHARDT, Judge, concurring specially. I must agree that the findings of fact as made by the deputy director are not up to the standard required under Atlanta Transit System, Inc. v. Harcourt, 94 Ga. App. 503 (1) (95 SE2d 41) and other decisions dealing with this matter and thus I concur in the judgment of reversal with direction, though my inclination is to affirm because an examination of the evidence in this record discloses that the award denying compensation was overwhelmingly supported, if not demanded. When proper findings of fact are made, a similar award must inevitably follow. Except for an insistence upon the making of proper findings by the deputy director I sec nothing to be accomplished by the reversal. See McDaniel v. Employers Mut. Liab. Ins. Co., 104 Ga. App. 340, 341 (121 SE2d 801).
Nall, Miller, Cadenhead & Dennis, A. Paul Cadenhead, contra.
William V. George, for plaintiff in error.
DECIDED FEBRUARY 1, 1965 -- REHEARING DENIED FEBRUARY 22, 1965.
Friday May 22 20:53 EDT


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