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Lawskills.com Georgia Caselaw
DAVIS, Guardian v. COBB COUNTY.
39608.
HALL, Judge.
Workmen's compensation. Cobb Superior Court. Before Judge Henderson.
This is an appeal from a judgment of the superior court recommitting to the State Board of Workmen's Compensation an award in favor of the claimant, as guardian of Sidney Davis, for "400 weeks compensation at the rate of $27.69 per week, as provided for in Georgia Code Section 114-406, paragraph (s), not to exceed the amount set out in Georgia Code Section 114-404, for temporary total disability, commencing seven (7) days from August 27, 1959," with the direction "that the State Board of Workmen's Compensation receive medical testimony to determine whether or not the alleged accidental injury received by the claimant, Sidney Davis, on or about August 27, 1959, proximately caused total blindness to the claimant; and in the absence of medical testimony to sustain the finding that the claimant Sidney Davis was totally blind and that such total blindness was proximately caused by the alleged accidental injury on August 27, 1959, that the award of the State Board of Workmen's Compensation dated September 22, 1961, so finding stand reversed, being without evidence to support the award. It is further directed that the State Board of Workmen's Compensation, in the event that it is found after hearing thereon that the said Sidney Davis, claimant, is entitled to compensation under the provision of Code Section 114-406 (s), give credit to Cobb County, employer in the amount of $2,700.00, being the amount which the undisputed evidence shows was paid by Cobb County to the said Sidney Davis subsequently to the alleged injury of August 27, 1959, through February, 1961, and that any award made by the State Board of Workmen's Compensation reflect this payment as a credit thereto. It is further directed that the award of the State Board of Workmen's Compensation, in the event that it is found after hearing thereon that the said Sidney Davis, claimant, is entitled to compensation under the provision of Code Section 114-406(s), reflect the death of claimant, Sidney Davis, on May 31, 1961, as revealed by the undisputed evidence in the record and that compensation terminate as of that date under the provision of 114-413 of the Georgia Code, insofar as this proceeding is concerned." Held:
The defendant points out that, though the board is not generally bound by medical opinion testimony, in most of the cases that have come before the courts there has been some medical evidence. The cases cited recognize, nevertheless, that the finder of fact can disregard medical evidence that is indecisive. American Motorists, Inc. v. Blaylock, 84 Ga. App. 409, 413 (66 SE2d 126). It follows, then, that a finding of a causal connection between the employment and the injury made on the basis of the facts and circumstances surrounding the injury is supported by some evidence.
(b) In Shipman v. Employers Mut. Liability Ins. Co., 105 Ga. App. 487, 493 (125 SE2d 72) it was held that when the evidence showed a claimant, though not totally deaf, was "for all ordinary and practical purposes unable to hear" he had lost his "industrial hearing" and, "It is, for that purpose and use, a complete loss of use and is compensable." Courts in other jurisdictions have held that the test of an award for loss of use of the eyes is whether the claimant's remaining vision is adequate for industrial pursuits. Powers v. Motor Wheel Corp., 252 Mich. 639 (234 NW 122, 124); Henderson v. Consumers Power Co., 301 Mich. 564 (4 NW2d 10, 17); Special Indemnity Fund of State v. Woodrow, 206 Okla. 580 (245 P2d 445, 447); Wadley v. Gleason, 192 La. 1052 (190 S 127, 132); Kubler v. Yeager, 189 Pa. Super. 339 (150 A2d 383, 385); Kilgore v. State Workmen's Insurance Fund, 127 Pa. Super. 213 (193 A 294); 99 CJS 1132, 316; 58 Am. Jur. 784, 290.
We think the evidence was sufficient to support a finding of total incapacity due to blindness at the time of the hearing.
The portion of the judgment recommitting the award for further evidence was error.
2. The credit on the award to which the employer may be entitled is governed by Code 114-415: "Any payments made by the employer to the injured employee during the period of his disability, or to his dependents, which by the terms of this title were not due and payable when made, may, subject to the approval of the State Board of Workmen's Compensation, be deducted from the amount to be paid as compensation: Provided, that in the case of disability such deductions shall be made by shortening the period during which compensation must be paid and not by reducing the amount of the weekly payments." (Emphasis supplied). However, the credits permitted by this provision of the law are not mandatory, as shown by the language emphasized above.
The portion of the judgment directing that the board give credit to the employer in the amount paid to the employee subsequently to his injury was error; the court should have directed that the board exercise its discretion and determine whether the payments made by the employer may be deducted from the award.
3. Code 114-413 provides: "When an employee is entitled to compensation under this Title for an injury received, and death ensues from any cause not resulting from the injury for which he was entitled to the compensation, payments of the unpaid balance for such injury shall cease and all liability therefor shall terminate."
The record shows that, after the hearing, the claimant's attorney notified the board that the claimant died on May 31, 1961; however, the record is silent as to the cause of death. The trial court erred in directing that compensation terminate as of the date of the employee's death, because there has been no finding by the board that the employee died from a cause not resulting from the injury for which he was entitled to compensation. The court should have directed that the board determine the facts and apply Code 114-413 accordingly.
Reed, Ingram & Flournoy, Rothert E. Flournoy, Jr., Lawrence B. Custer, contra.
Margaret Hopkins, for plaintiff in error.
DECIDED JULY 16, 1962.
Friday May 22 22:47 EDT


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