Opinion
39152.
DECIDED JANUARY 15, 1962. REHEARING DENIED JANUARY 30, 1962 AND FEBRUARY 15, 1962.
Workmen's compensation. Hart Superior Court. Before Judge Skelton.
William O. Carter, for plaintiff in error.
Smith, Field, Ringel, Martin Carr, Charles L. Drew, contra.
1. There was sufficient evidence in the record to support the findings of the State Board of Workmen's Compensation that the claimant was not suffering from any disability, and that there was no change in condition other than improvement. Under these findings, the Board properly denied compensation.
2. The superior court properly affirmed the award of the State Board of Workmen's Compensation, as there was sufficient evidence to support it.
3. The denial of compensation by the Board in this case was based upon its finding that the claimant was not disabled to carry on the duties he had previously performed; the denial was not based upon the final settlement receipt.
DECIDED JANUARY 15, 1962 — REHEARING DENIED JANUARY 30, 1962 AND FEBRUARY 15, 1962.
Claimant sustained an injury in the course of his employment on or about April 30, 1959; a standard form for agreement as to compensation was entered into between the employer, the employee, and the insurance carrier, agreeing to pay compensation until terminated in accordance with the Workmen's Compensation Law. This was approved June 23, 1959, by the State Board of Workmen's Compensation. Claimant was disabled for a period of approximately 25 days, for which he was paid compensation. He returned to work for the same employer at the same or higher rate of pay, at the same work and the same number of hours, and continued to work until January, 1960, when he was laid off along with other employees because the employer did not have enough work. After being laid off, he filed an application before the State Board of Workmen's Compensation, alleging a change in condition and requesting that a hearing be held for the purpose of determining a change in condition, extent of disability, compensation due and to become payable, and other questions arising under the Workmen's Compensation Act.
The case was heard before the Deputy Director. The claimant testified that he was not able to handle a laboring job; that he worked three or four days and sometimes a full week driving a truck for a house mover; that he could not work regularly at this job because his head and neck wouldn't let him.
Several physicians testified by deposition. Dr. [H] testified that upon his examination of the claimant in November, 1959, he was of the opinion that the claimant had made a very satisfactory recovery from his injury of April 30, 1959, with no motor or sensory loss.
Dr. [D] testified that the claimant's condition improved from the time of the injury to May of 1960, and that the claimant had reached the maximum medical improvement; that the last few times he saw the claimant in 1959 his main complaints were of pain in the neck and after working all day long he had nervousness and inability to sleep at times; that he could not find any signs in the way of muscle spasms or other objective symptoms which could justify any of the claimant's complaints, and no definite physical basis for them; that he found the claimant to be asymptomatic, and felt that he had no loss of range of motion and no disability whatever as of September 23, 1959; that, when he examined him in May of 1960, he couldn't find any physical basis for the complaints then made; that the complaints made in May, 1960, were similar to but not the same complaints made on April 30 and thereafter in 1959, in that he complained of weakness and severe paid in his neck, weakness of his arm and leg which he did not complain of in May, 1960; and that he did not complain of the weakness in his arm and leg at the later examination.
Dr. [E] had treated the claimant in April of 1959, and testified that the claimant indicated he had recovered completely except for some stiffness of his neck by May 20, 1959. He examined the claimant again on May 25, 1960, and he found no evidence of any deterioration in the claimant; that if there had been the weakness of the type the claimant complained of there would have been some atrophy of the muscle groups which he could have measured; that there were no organic changes of the nervous system; that the claimant had recovered completely; that there were no organic changes to support the patient's complaints; and he could see no reason why the claimant could not work.
Following the hearing, the Deputy Director issued an award finding as a fact that it did not appear either in the medical testimony or from other evidence that a change in condition of the claimant had occurred except for physical improvement; that the question of what constitutes incapacity to work is a question of fact which is resolved against claimant; that he did not accept the contention of claimant that he was less able physically now to perform heavy labor than immediately before the accident of April 30, 1959; that, based on the evidence and observations of the claimant, the claim for compensation was denied since at most the only complaints were of aches and pains which were not disabling.
The claimant appealed to the Full Board, which adopted the findings of the Deputy Director and affirmed the award denying compensation.
The claimant appealed to the superior court, which affirmed the award of the Full Board. The claimant excepted to this judgment, assigning error, inter alia, in that the judgment was contrary to law, as it was predicated upon the erroneous legal theory that the settlement receipt signed by the claimant had the legal effect of stopping the obligation and duty of the defendants to pay the claimant the workmen's compensation benefit, and that the order of the superior court was based upon an erroneous theory of law, in that the court concluded in the judgment: "Claimant contends that the burden of proof was on the employer to show a change in condition. For the purpose of determining this appeal I do not think it necessary to decide who was to carry the burden of proof. However, the record discloses that the claimant filed an application for a hearing on `change in condition,' and the Court of Appeals held in Fortson v. American Surety Co., 92 App. 625, that the burden of proof is upon the party claiming the change in condition. For the sake of argument, if the burden was on the employer, the evidence authorized the Board to hold that the employer carried this burden of proof."
It was further contended that there was not sufficient competent evidence in the record to authorize the Board to enter its order and award.
1. By statutory law and innumerable precedents of our appellate courts it is firmly established that properly supported findings of fact of the State Board of Workmen's Compensation are binding upon the courts, and, where the findings support an award, the courts cannot disturb it.
The claimant here contends that the evidence demands a finding in his favor. We disagree.
"In reviewing an award by the full board denying compensation, this court must accept that evidence most favorable to the employer." Austin v. General Acc. Assurance Corp., 56 Ga. App. 481 ( 193 S.E. 86). Since the award is in favor of the defendant, the claimant cannot cause it to be set aside if there is any evidence to support it. Before the claimant can cause the award to be reversed and set aside, a finding for compensation must be demanded by the evidence. Whitener v. Baly Tire Co., 98 Ga. App. 257 ( 105 S.E.2d 775).
The evidence here was sufficient to support the finding of the Board that the claimant was not suffering from any disability which would make him less physically able to perform heavy labor than prior to the accident, and that there was no change in his condition other than an improvement.
The findings of fact and denial of compensation made by the Board were properly affirmed by the superior court.
2. The claimant urges that the judgment of the superior court was based upon an erroneous and illegal theory of law, in that the court stated that for purposes of determining the appeal it did not deem it necessary to decide who was to carry the burden of proof; and that, if the burden was on the employer, the evidence authorized the Board to hold that the employer had carried it.
There is no merit in this contention. While the superior court in its written opinion affirming the award of the Board did mention the burden of proof, the concluding paragraph of the opinion clearly shows that the basis of the affirmance was that there was sufficient evidence to support the award denying compensation.
Furthermore, the record does not reveal, nor does the award show, that the Board considered the burden of proof to be either upon the claimant or the employer.
3. The claimant further contends in effect that the Board in its award treated the final-settlement receipt as having the legal effect of stopping the obligation of the defendants to pay compensation, and urges correctly that a final-settlement receipt does not of itself terminate the liability of the employer. Fidelity Casualty Co. v. King, 104 Ga. App. 261 ( 121 S.E.2d 284). However, this contention is without merit in this case, as it clearly appears from the record that the Board did not consider the final settlement receipt as the reason for denying compensation, but the denial, instead, was based upon the finding that the claimant was not disabled to carry on the duties he had previously performed.
The other contentions urged were not such as to authorize a reversal by this court of the authorized award of the State Board of Workmen's Compensation.
Judgment affirmed. Felton, C. J., and Hall, J., concur.