Opinion
33373.
DECIDED MARCH 16, 1951.
Appeal; from Chattooga Superior Court — Judge Nichols. October 14, 1950.
A. A. Farrar, Brinson Davis, for plaintiff in error.
Freeman McClure, Matthews, Owens Maddox, contra.
1. There is evidence to sustain the award.
2. Under the facts of this case, the hearing director who made the award did not err in reopening the case and hearing testimony and determining liability and making a final award thereon.
3. There is evidence to support the contention as to the weekly wages of the claimant.
DECIDED MARCH 16, 1951.
Arnold Murdock filed a claim for compensation before the State Board of Workmen's Compensation against Lewis Howard. The injury was alleged to have been received in June, 1948. A hearing was set before a single director on March 10, 1949, at Summerville, Georgia. On account of the non-appearance of the claimant, the single director, on motion of the employer, dismissed the claim for want of prosecution. On written motion on behalf of the claimant, another hearing was set at Summerville, Georgia, for June 7, 1949. Notice of such hearing for June 7, 1949, was duly given the employer by the board on April 25, 1949. The final hearing before a single director was had on August 17, 1949. The record revealed that the second hearing was had before the director and board member, W. E. Buckner. It appears from the record that the purpose of this hearing was to determine the right of the claimant to reopen the case, liability, compensation, penalties, and attorneys' fees. At this hearing the board member, W. E. Buckner, made the following finding of fact: "I find that the purpose of the hearing was to determine the right of the claimant to reopen the case, liability, compensation, penalties and attorney's fees. I further find as a matter of fact that this case was set for a hearing before the Honorable Pat J. Riordan on March 10, 1949, and when the claimant did not appear, the attorney for the claimant requested that he be given twenty minutes within which to take a taxi cab and go for the claimant and his mother, who was a witness. The Honorable Pat J. Riordan refused such a request and dismissed the case for lack of prosecution. After considering all of the evidence as given with reference to the failure to appear on that date, the condition of the roads, the weather, sickness of the claimant and his mother, and the educational qualifications of the claimant, this director ruled that the Honorable Pat J. Riordan was unreasonable in refusing to allow the claimant's attorney twenty minutes within which to produce the claimant. Wherefore, the undersigned director allowed the case to be reopened because of the above stated facts. I further find as a matter of fact that the employer had ten employees regularly employed and that the State Board of Workmen's Compensation has jurisdiction over this claimant. I find as a matter of fact that Arnold Murdock, the claimant, was an employee of Lewis Howard on June 1, 1948, employed at an average weekly wage of $30 per week. I further find as a matter of fact that the claimant sustained an injury by accident which arose out of and in the course of his employment when a belt ran off the sawmill pulley, wrapping around him and breaking his left arm at or about the elbow. I further find as a matter of fact that the claimant has been paid the sum of $150 for temporary total disability while his arm was broken. I further find as a matter of fact that although there is some conflict in the medical testimony, one doctor estimated the permanent partial disability at 50%; and, another estimated it 25% disability to the hand, the arm being broken at or about the elbow. I find as a matter of fact that the claimant has a 37-1/2% permanent partial disability to the left arm as a result of said injury. I further find as a matter of fact that the claimant has now reached maximum improvement. It is the policy of this board not to penalize an employer for the first offense, and I am not now penalizing this employer, but it is hoped that if he continues to do business in this State, that he will immediately qualify under the act."
On this finding of fact the following award is based: "Wherefore, based upon the above finding of fact and contentions of law applicable thereto, the employer, Lewis Howard, will pay to the employee claimant, Arnold Murdock, the sum of $15 per week, based upon an average weekly wage of $30 for a period of 75 weeks, beginning ten weeks from the date of the accident, the claimant having been paid under agreement for ten weeks' temporary total disability, and the same being 37 1/2% of 200 weeks as allowed under the act. All doctors' bills and medical expenses arising out of and because of this injury are to be borne by the employer, not to exceed $500, the maximum allowed under that act. All accrued compensation is to be paid promptly. . . This the 17th day of August, 1949."
The employer, being dissatisfied with this award, appealed to the full board, the majority of which board affirmed the award of Director Buckner. The employer appealed that judgment to the superior court, which affirmed the award of the full board. The employer excepts to the judgment of the superior court and brings the case here for review.
1. We have read the evidence, which is rather lengthy, and find that the findings of fact are sustained by the evidence, and the judge of the superior court did not err in such judgment affirming the award of the full board.
2. There are certain specific contentions advanced by the employer, which we will now deal with. The first one is that the hearing director, Buckner, who made the award, had no authority to reopen the case and hear evidence and make an award, since more than seven days had elapsed from the dismissal of the application without any appeal for review to the full board. Counsel for the employer in support of their contentions, call our attention to Gravitt v. Georgia Casualty Co., 158 Ga. 613 ( 123 S.E. 897); U.S. Casualty Co. v. Smith, 42 Ga. App. 774 ( 157 S.E. 351) Code § 114-706; Morris v. Atlantic Co., 71 Ga. App. 760 ( 32 S.E.2d 116). It will be noted that those cases, and all others which we have been able to find, deal with the question of reopening a case where an award has been made. Director Riordan did not make an award. We find nothing to the contrary in the decision nor the Code section cited above, and we do not find anything in the Workmen's Compensation Act that would debar a claimant from having the merits of his case passed upon simply because he was providentially hindered from being present at a certain time set for a hearing. We realize that it is within the province of the board, under the provisions of the Workmen's Compensation Act, to dismiss a case for want of prosecution but this is not true under the facts revealed in the instant case. We might state here also that the request of the claimant to reopen and hear his case on the merits was sufficient under the provisions of the act, to constitute a second application in order that the merits of the case might be passed upon. The method of filing a claim under the Workmen's Compensation Act is most informal, as it should be. The Supreme Court held in New Amsterdam Casualty Co., v. McFarley, 191 Ga. 334, 337 ( 12 S.E.2d 355): "The only award that the Industrial Board has the power under the law to make is either to deny or to grant compensation. No authority is to be found anywhere for the board to make an award simply finding that disability does or does not exist. Any award that does not deal with the question of compensation is a legal nullity, and cannot be styled either for or against anyone." This court held in Jones v. American Mutual Life Ins. Co. 48 Ga. App. 353 (5), ( 172 S.E. 600), as follows: "Where an application for compensation is dismissed by the Industrial Commission or one of its members, without determining the merits of matters in question, and the claim is refiled or a second claim is filed within the one year limitation of the act ( § 25), or is filed without objection as to such time, the commission or a member may hear and determine the application upon its merits. Thigpen v. Hall, 46 Ga. App. 356, ( 167 S.E. 728). This rule would also seem to apply where a first claim has been dismissed merely because of insufficient proof, without any award in the employer's favor where the evidence has not been sufficiently developed by the claimant and no testimony has been offered by the adverse party." This contention is without merit.
3. Another question argued here and insisted upon as to why the judgment of the superior court should be reversed is that the hearing director refused to allow testimony to be given in regard to the failure of the claimant to have a cast applied when ordered so to do by his doctor, and not to do any heavy work. The record reveals that when the claimant was so ordered it was after the original injury to his arm, and it further reveals that he had done no heavy work, that he only removed slabs and that he did that with his uninjured hand. In this connection, attorneys for the employer cite Royal Indemnity Company v. Land, 45 Ga. App. 293 ( 164 S.E. 492). We do not think the facts in that case show authority for the contentions here made or warrant a reversal under the facts of the instant case. Moreover, there is testimony in the record that the failure of the claimant to go back to his doctor to have the cast applied on his arm in no way contributed to his disability. Another contention argued by the employer is that there was no evidence to sustain the finding of the claimant's average weekly wage. Aside from the testimony as to the hours the claimant worked, along with other employees, to the effect that the weekly wages of the employee were $30, there appears in the record an alleged release, introduced by the employer, which shows that the employer recognized that the claimant was making $30 per week. This contention is without merit.
4. The next contention is that there is not sufficient evidence to warrant the award for a 37 1/2% disability. This contention is without merit. We find that all contentions of the employer as to why the judgment should be reversed are without merit.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.