Ingram v. Liberty Mutual Ins. Co. , 62 Ga. App. 789 ( 1940 )

1. Where the evidence adduced upon the hearing of an application, based on a change in condition, for a review of an award of the Industrial Board, brought pursuant to the Code, § 114-709, authorized the hearing director to find that the physical condition of the claimant and the extent of his disability were the same as they were at the time such award was rendered, the director did not err in dismissing such application and denying additional compensation to the claimant.

2. The provision of the Georgia workmen's compensation law (Code, § 114-713), that the directors of the Industrial Board "or any one of them may, upon the application of either party or upon their own motion, appoint a disinterested and duly-qualified physician or surgeon to make any necessary medical examination of the employee and testify in respect thereto," invests in a director thereof the discretion of making or refusing such appointment, in the exercise of which he will not be controlled by the courts, unless there has been a manifest abuse thereof.

3. Where, upon application of a compensation claimant for review of an award, on the ground of a change in condition, the claimant appeared and was examined at the hearing in the presence of the director, and there was testimony of a physician who had made a previous physical examination of the claimant before the initial award and upon which it was based, that shortly before the hearing under consideration he had made a second and thorough physical examination of the claimant, and that in his opinion the physical condition and per cent. of permanent disability of the claimant were the same as they were at the time of the first examination, and that there was no change in the condition of the claimant, a refusal by the director of a request by the claimant that he appoint a disinterested and duly qualified physician to examine the claimant and testify as to the result thereof did not constitute a manifest abuse of the director's discretion, although it appeared that the claimant was unable, because of his poverty, to procure a physician to make an examination of him and testify on the trial, that the physician testifying on the trial was the physician for the employer and the insurance carrier, and that the mother of the claimant and the claimant both testified positively that the condition of the claimant was "worse," and that he was able to do only "light work."

DECIDED JULY 5, 1940. On June 4, 1937, Andrew Ingram filed his claim for compensation with the Department of Industrial Relations, and on June 22, 1937, a hearing thereon was heard by Deputy Director Land in Milledgeville. The employer admitted that on August 7, 1936, the claimant, while employed by A. J. Collier Construction Company who was "insured with the Liberty Mutual Insurance Company," and while he was engaged in work in Baldwin County, at an average wage of $8 a week, sustained an accident which arose out of and in the course of his employment; that agreements to pay compensation were entered into and filed with the department, and the claimant was paid compensation for a period of six weeks and one day at the rate of $4 a week, and final settlement receipts therefor were filed with the department; that the claim then before the board was based on a change in condition; and that an agreement for settlement was entered into between counsel for the insurer and counsel for the claimant on such hearing, subject to the approval of the department. Dr. O. C. Woods testified, with respect to the disability of the claimant, that he had treated the claimant for his injuries, that he had signed an order that the claimant was able, on September 28, 1936, to return to work; that in his opinion the claimant had, "at the expiration of four weeks from September 28, 1936," reached the maximum improvement; that at the time of the hearing the claimant was suffering a permanent partial loss of the use of his right arm, amounting to about 25 per cent.; that he had x-rayed the claimant's arms and other parts of his body about a week before the hearing, and in his opinion the claimant had entirely recovered from all injuries sustained by reason of the accident other than the injury to his right arm; that in his opinion the claimant had a 25 per cent. permanent partial loss of the use of his right arm as a result of the accident. Thereupon counsel for the insurance carrier stated: "Based on this testimony, we would like for your honor to issue an award for four additional weeks for temporary total disability, and an award for fifty weeks covering permanent partial loss of the use of the arm;" and counsel for the claimant stated: "That is agreeable to me." On July 17, 1937, an award was accordingly made and entered by the director.

Thereafter, on November 30, 1938, counsel for the claimant notified the Department of Industrial Relations and the insurance carrier, by letter, that the claimant claimed "that his condition has steadily grown worse," and requested a hearing upon the ground of change of condition. Counsel for the claimant contended in his letter that the matter of the changed condition of the claimant had been taken up with the insurance carrier; that he had requested that the claimant be examined by Dr. O. C. Woods, which request the claimant complied with; that it was understood between the representative of the insurance carrier and counsel for the claimant that the doctor was to furnish both of them with a copy of his examination report; that the claimant stated to counsel that Dr. Woods examined him twice on two different days; that counsel "called Dr. Woods about this, and he did not seem inclined to discuss it with us very much, did not appear to be very sympathetic with the claimant;" that in view of the fact that the doctor has not furnished counsel with a copy of the examination report, and in view of his apparent attitude, counsel doubts "whether we are going to be satisfied to rest upon his testimony alone, and that in simple fairness to Ingram that we ought to have another doctor examine him;" that if Dr. Woods should contend that claimant's condition has not changed, "in addition to additional medical support we will try to take the testimony of claimant's neighbors and those lay witnesses who know about his physical condition," so that the department "may have a true picture of his condition;" and that if the physician for the insurance carrier does not sufficiently examine a patient or gives the wrong impression of his condition, the insurance carrier "would naturally be inclined to rely upon their own physician, and in that event it will likely be necessary that we introduce our own evidence and establish his changed condition."

On January 24, 1939, the matter came on for a hearing before Director Monroe. Dr. O. C. Woods testified for the employer and the insurance carrier, that he had examined the claimant recently; that he had previously examined the claimant and testified in the matter; that on December 7, 1938, he x-rayed the claimant's skull and right arm and made a physical examination; that he found his temperature normal, his blood pressure normal for a man 26 years of age, his pulse and respiration normal, and the scar over his eye had healed; that that is where the claimant had had a fractured skull, and that was "apparently . . all right;" that that was not giving the claimant any trouble at the time the witness examined him; that the claimant's eyes were all right; that he still had some disability in his right arm; that at the time of the injury he had a dislocation of the wrist and a fracture in the elbow; that the witness did not think there had been any change in the 25 per cent. loss in the use of the right arm as to which he had testified on the previous hearing, and the claimant now has about the same disability in the arm; that the witness again recently examined the claimant's head, and in his opinion there was no trouble with the head; and that in his opinion there had been no change in the claimant's condition since his previous examination and his testimony in the matter. On cross-examination, the claimant's counsel caused the claimant to pull off his jumper, so that the witness could "hear that grinding and creaking" in his arm. Counsel told the claimant to "work your arm and let him hear that sausage-mill working." The witness stated: "That is no bone crepitation," but "is purely a tendon thing;" that "plenty of people can do that, it does it in the other arm;" that he finds no bones out of place; that the claimant has almost complete extension; that he can get his arm almost straight; that there is no "muscular atrophy;" that the claimant's arm is almost straight; that the claimant has 25 per cent. or less disability in the arms; taking "the grip or anyway;" that there is not much impairment, "the crepitation in both arms is the tendon thing;" that the claimant has the same grinding in the right arm that he has in the left; that every one doesn't have that; that he did not refuse to examine the claimant the first time the claimant went to see him; and that the claimant has something wrong with him now "just a little bit." Counsel for the insurance carrier admitted that on August 7, 1936, the claimant was earning $8 a week, and that the insurer had paid him sixty weeks' compensation covering a 25 per cent. permanent partial loss of the use of his right arm, which was in accordance with the award of July 13, 1937. Counsel for the claimant stated that he would admit that the award had been paid, but that the matter "came on to-day on a change in condition."

The claimant testified that his right arm, shoulder, back, and head "worries" him, meaning "hurts" him; that he is able to do only a little light work; that recently his condition "worries" him more; that he has not done much this year; that he tried to farm a little on his nephew's farm, but could not; that he did only a "little patch work;" that the "grinding" in his arm had not been there all his life; that he was about the healthiest of his mother's children until he got hurt; that his back and head hurt him at the present; that at the time he was injured he fell two stories through a scaffold; that the plank broke, and he went down through the hole; that he does not feel better than he did at the other hearing when compensation was awarded him; that he feels worse at this time, and his condition continues to get worse; that he called on Dr. Wood and Dr. Evans, but he did not have any money to pay them, and they did not want to "bother" with him; that he went to Dr. Scott two or three days before the hearing to get an x-ray taken, so that this doctor could testify for him in this matter, and he could not get it because he did not have any money; that he has no money at all and is not able to get any medical attention; and that if he had any money he would hire Dr. Scott to take an x-ray of his arm. On cross-examination he testified that since June, 1937, he worked about a day or two for Mr. Kline, "a little bit with Mr. Jim Stephens," and that is about all since he got hurt; that he lived on the farm with his mother and his "folks;" that if he tried to work he "aint able to make it, and I have to do something that won't hurt me none;" that he hurts "all over;" that "I aint been no account;" that the older he gets the worse it hurts him; and that he does not think it is his age that hurts him, but the fall that he had. Hattie Hogan, his mother, testified, that he had always lived with her; that his condition as compared with two or three years ago is worse; that he has been getting worse all the time; that he complains of his head, side, back, and arm; that he calls her during the night and says, "Mama, I can't rest," and she would say to him, "Take a pillow and lay under your arm;" that he does only a little light work, and "works around;" that the "grinding" in his arm was not there before the accident. On cross-examination she testified, that the claimant was able to do only light work; that the fall caused the trouble with his arm, and that he can not use his arm or sleep on it or use it "like people usually lay down; he can't rest that way." On redirect examination she testified that the claimant can not do as hard work now as he could two or three years ago, and that he is "getting worse all the time."

On the conclusion of the testimony counsel for the claimant requested the department to appoint Dr. Scott or another disinterested qualified physician to examine the claimant. The director stated that he would consider the request, and asked counsel for the claimant if, in the event the department had the claimant so examined, the report of the physician could be used as a part of the evidence, without another hearing; to which counsel for the claimant assented. Counsel for the insurance carrier stated that he would like to see the report before he agreed to it. On February 16, 1939, Director Monroe rendered an award denying compensation additional to what the claimant had previously received, and dismissing the claim. In the award it was stated that the issue for determination was whether the claimant has had a change in condition since the previous award of July 13, 1937, and if so the percentage of disability the claimant is now suffering. It was further stated: "After the last hearing was held in this case, claimant's counsel wrote a letter to the Industrial Board, requesting that claimant be sent to a disinterested physician for an examination and report. Only one physician testified at the last hearing, and there was certainly no conflict in the medical testimony. It is the practice of the Industrial Board to at times send claimant to a disinterested physician where there is a conflict in medical testimony and the board is of the opinion that the report or testimony of a disinterested physician would be of aid in reaching a decision; but there being no conflict in the medical testimony in this case, this director is of the opinion that there is no necessity for an examination or report by a disinterested physician; and the request of counsel for the claimant is hereby denied." It was further stated: "Only three witnesses testified at the hearing held to determine whether there has been a change in claimant's condition, to wit: Andrew Ingram, claimant, Dr. O. C. Woods, and Hattie Hogan, and the testimony of all these physicians [witnesses] was considered in rendering this award. Dr. O. C. Woods, the only physician to testify, testified that he examined claimant on December 7, 1938, and re-x-rayed his skull and arm; that in his opinion there has been no change in claimant's condition since he first examined him prior to the rendering of the award of July 13, 1937; that in his opinion claimant is still suffering the same degree of disability as when he first testified, to wit, a twenty-five per cent. loss of the use of the right arm. From the preponderance of the testimony this director finds as a matter of fact that claimant has not had a change in condition since the first award was rendered; and that claimant is now, and has been since the first hearing, suffering a twenty-five per cent. loss of use of the right arm as a result of accidental injury sustained by him. . . Therefore, claimant having been paid compensation in full for a twenty-five per cent. loss of the use of the right arm, additional compensation is denied and the case is hereby dismissed."

The claimant appealed to the board, on the following grounds: "1. Claimant shows that medical treatment had not been afforded him by the insurance carrier, that no compensation had been paid in a long time, that he went to a physician for an examination, and was told by his physician, Dr. W. M. Scott, and also by Dr. R. E. Evans, that an x-ray examination was necessary in order to determine his true condition; that due to his poverty and injured condition he was unable to pay for an x-ray examination or any further examination, and requested the Industrial Board to have him examined in order that the true extent of his injuries might be determined. 2. Claimant respectfully shows that one of the avowed objects of the law creating the Industrial Board is to require the Industrial Board to ascertain and determine the correctness of the physical condition and claims of injured workmen and to see that injured workmen are protected in their rights, and that it is an abuse of discretion for the hearing director in this case to fail to take whatever steps might be necessary to ascertain the true condition of the claimant, when the positive evidence in the file indicated that he had made all steps possible to establish his claim, but due to his poverty had been unable to have an x-ray examination. 3. Claimant also urges as a ground of this appeal that the recitations of the award are not borne out by the record in the following particulars: There is a conflict of testimony. Andrew Ingram and Hattie Hogan testified substantially that the claimant's condition had grown much worse, and that he was totally disabled. Therefore, because of the conflict in the testimony, it is the duty of the director to have ordered a disinterested physician to examine the claimant and he [had] not cared to order an x-ray examination by the claimant's physician. Furthermore, there is no provision of Georgia law which gives the Industrial Board any authority to give greater weight to the testimony of a physician than it gives to the testimony of injured claimants and other lay witnesses. Furthermore, any presumption that one class of witnesses will testify more truthfully than another class of witnesses and should have more weight in what they say would be unconstitutional, as all witnesses are supposed to tell the truth, and their credibility is to be properly determined upon the facts of each case, and not upon any set rule or custom that a doctor's testimony is more truthful than somebody else's testimony. 4. The fourth paragraph of the findings of fact of Director Monroe is not entirely clear. It is true that counsel for claimant requested that the claimant be sent to a physician and examined, in a letter after the hearing; yet the full truth is that this was more of a reminder than anything else, and that this request was made in open hearing at the time of the hearing and should appear of record. This statement is made for the record, in order that the record may not appear to show that the request for an examination was made after the record was closed, but was made at the time of the hearing and insisted upon in a memorandum later sent to the Industrial Board." (Counsel for the claimant is in error, in his statement of the grounds of appeal to the board, in stating that the claimant "went to a physician for an examination, and was told by his physician, Dr. W. M. Scott, and also by Dr. R. E. Evans, that an x-ray examination was necessary in order to determine his true condition." The evidence did not show that the physician told him that the x-ray examination was necessary. The claimant testified, that he tried to get medical treatment; that he went to Dr. Woods and Dr. Evans, but did not have money to pay them; that they did not want to "bother with him;" that he went to Dr. Scott two or three days before the hearing, to get an x-ray taken, so the doctor could testify for him in the case, and could not get it because he did not have any money; that he had no money; and that if he had money he would hire Dr. Scott to make an x-ray of his arm.)

The board denied the appeal, and affirmed the award of the director. The claimant filed his appeal to the superior court, on the grounds, that the directors acted without and in excess of their powers; that the award of the board affirming the award of the director was procured by fraud; that the facts found by the directors do not support the award; that there was not sufficient competent evidence on the hearing to warrant the award complained of; that the award, judgment, and decree are contrary to law; that the award is based upon a constrained construction of the law and facts, adverse to the claimant; that the "hearing director" refused to have the claimant examined by a competent physician in order to determine his true condition, "his true condition being a matter of contest," and that "failure to permit the injured working man to obtain the proper medical examination and to assist him when he is poverty stricken under the circumstances is adverse to sound public policy and is repugnant to the intention of the workmen's compensation laws of Georgia;" that "neither of the awards complained of correctly recites the evidence in the record, and contain statements inconsistent with the record and incorrect with the record and incorrect;" that the "award does not fully and properly review and correctly recite the evidence of record, and the material evidence in the record was overlooked in the entering up of said award." The judge of the superior court affirmed the finding of the Industrial Board, and the claimant excepted. "Upon their own motion before judicial determination or upon the application of any party in interest on the ground of a change in condition, the Industrial Board may, within two years from the date that the Board is notified of the final payment of claim, review any award or any settlement made between the parties and filed with the Board and, on such review, may make an award ending, diminishing or increasing the compensation previously awarded or agreed upon." Code, § 114-709, as amended by acts of 1937 (Ga. L. 1937, pp. 230, 233, 528, 534). It is only where there has been a change in the condition of the claimant since the original award that the board may, on review, alter or change the original award, increasing the compensation or granting additional compensation. Home Accident Insurance Co. v.McNair, 173 Ga. 566 (161 S.E. 131); Teems v. AmericanMutual Life Insurance Co., 41 Ga. App. 100 (151 S.E. 826). Under the Code, § 114-709, on application to review a previous award upon change in condition, only the physical condition of the employee remains open to inquiry. South v. IndemnityInsurance Co., 39 Ga. App. 47 (146 S.E. 32). A change in condition exists where maximum improvement has not been reached and subsequent developments show additional impairment; and it does not exist where the condition of the claimant is the same as at the time of the initial hearing. For instance, where there are no future developing facts and circumstances showing a change in condition with reference to the claimant by reason of his previous injury, such as would show an increase or decrease in extent of his disability, and consequently change the amount of his compensation, a previous award, finding the claimant a certain per cent. disabled and therefore entitled to receive compensation in accordance therewith, is final, and may not be reviewed under the Code, § 114-709. See Fralish v.Royal Indemnity Co., 53 Ga. App. 447 (186 S.E. 567). The claimant suffered an accidental injury arising out of his employment, which caused a partial loss of the use of his right arm. A claim was filed and a hearing had thereon, at which there was the medical testimony of Dr. O. C. Woods that the claimant's injury amounted to a 25 per cent. permanent partial loss of the use of his right arm; and upon the parties agreeing thereto, the director, on July 17, 1937, rendered an award granting compensation to the claimant accordingly. On November 30, 1938, the claimant requested of the Industrial Board a hearing, on the ground of a change in condition. Upon this hearing the testimony of the sole medical expert, Dr. O. C. Woods, was that he made a recent examination of the claimant, and that in his opinion there was no change in the claimant's condition since his previous examination made before the initial hearing, and on which the original award was based, the claimant having about the same disability to his arm as he then had. There was testimony of the claimant and of his mother that his condition was "worse" than it was at the time of the original award, and that he was only able to do "light" work. However, the director found as a matter of fact that there had been no change in the condition of the claimant, and denied any additional or further compensation. Upon appeal this award was affirmed by the board, and that judgment was affirmed on appeal to the superior court. Under the testimony of Dr. Woods, the finding of fact that there had been no change in the condition of the claimant was authorized, and this finding was conclusive on appeal to the superior court. Code, § 114-710;Interstate Telephone Co. v. Holt, 45 Ga. App. 85 (163 S.E. 234); South v. Indemnity Co., 41 Ga. App. 827 (155 S.E. 48).

This leaves for consideration only one question: Should the director, under the facts and circumstances of this case, have complied with the claimant's request to have appointed a disinterested and duly-qualified physician to make an examination of the claimant, with the view to obtaining further information as to whether there was a change in his physical condition, due to his previous injury? The Georgia act provides: "The directors . . or any one of them, may, upon the application of either party or upon their own motion, appoint a disinterested and duly-qualified physician or surgeon to make any necessary medical examination of the employee and to testify in respect thereto." Code, § 114-713. The provision that the director of the Industrial Board "may" appoint a disinterested and duly-qualified physician to examine the employee has been held to invest in the director the discretion of making or refusing such appointment. Spearman v. F. S. Royster Guano Co., 188 S.C. 383 (199 S.E. 530). Under a similar statute the Supreme Court of Massachusetts stated that the appointment of an impartial physician by the directors is to be regarded as permissive rather than mandatory. O'Neil's case,262 Mass. 266 (159 N.E. 731). In a Texas case arising under the compensation law it was held, that even though the appointment of a physician to examine the claimant is discretionary with the Industrial Board, it should be permitted where the true effect and extent of the claimant's injuries are in doubt and would be cleared up by an examination. Texas Employees Insurance Asso.v. Downing (Tex.Civ.App.), 218 S.W. 112. In Tenison v. School City of Evansville, 103 Ind. App. 569 (9 N.E.2d, 92), the Indiana Court of Appeals held it was not error for the Industrial Board to order an examination of the claimant by two physicians appointed by it, even though the claimant had been examined by a physician before the hearing, as it was within the discretion of the board to hear additional parties as to any additional facts they may desire to produce. It has been said that when a physical examination as to the condition of a party is to be made under the order of the court, it would seem obvious that an examination by disinterested experts chosen by the court would be more conducive to the ascertainment of the truth than that of physicians selected by the plaintiff's antagonists, whose examination and opinions are more apt to be partisan, and in the ordinary case it is more appropriate to request the court to name the examiners. Texas Employees Insurance Asso. v. Downing, supra, citing 14 R. C. L. 712, and Richmond Danville Railroad v. Childers, 82 Ga. 719 (9 S.E. 602, 3 L.R.A. 808, 14 Am. St. R. 189). It "might be a wise exercise of discretion to grant the motion where physicians of the respective parties have testified and their opinions differ upon matters seemingly capable of possible ascertainment, and the court is asked to appoint disinterested and unbiased physicians to make the examination." 14 R. C. L. 719, note 4.

It is not for this court to say whether the director would have been justified in his discretion, under the facts in this case, in ordering an examination of the claimant by a disinterested and duly-qualified physician. We have only to determine whether the facts were such as to demand that such appointment be made by the director. In the light of all the facts in the record before the court, which have been set out at length in the preceding statement of facts, and which have been carefully examined by this court in considering the contentions of the claimant relative to refusal of the director to appoint such physician to examine him, it is our opinion that it does not appear therefrom that the director abused his discretion in denying the request of counsel that a disinterested physician be appointed to examine the claimant. While the purpose of the compensation law is to provide compensation without regard to the rules of the common law and of the statutes as to the liability of employers for injuries to employees arising out of and in the course of the employment, and the compensation act is to be properly construed so as to benefit the injured employee, no provision is made in the compensation law that the directors of the Industrial Board shall, because of the inability of an injured employee on account of his poverty to procure a physician to examine him and to testify upon the trial, appoint a disinterested physician to examine such employee and testify as to the result of his examination. Instead, under the very wording of the statute, the directors are clothed with a broad discretion in the matter, and their grant or refusal of such a request by the injured employee, or by the employer, or insurance carrier, is not subject to be reviewed by the courts unless it appears from the facts that there has been a clear and manifest abuse of such discretion. In this case, Dr. O. C. Woods made two examinations of the claimant, one before the first award, and on which that award was based and compensation paid, and the other just before the hearing, on the ground of a change in condition. It is true that this physician was the physician for the employer and the insurance carrier. However, the director heard him testify, and he testified that he made a thorough physical examination of the claimant. The credit and weight to be given to the testimony of the witness was for the director. Likewise, the director observed the claimant who was present, and examined him at the hearing. The director could consider the physical appearance of the claimant in determining whether there had been a "change in the physical condition of the claimant." Abbercrombie v. Maryland Casualty Co., 41 Ga. App. 729 (154 S.E. 459). While the director could consider the testimony of the claimant and of the mother of the claimant, which was that the claimant's condition was "worse" (Sears v.Griggs, 48 Ga. App. 585, 173 S.E. 194), he was not bound thereby, in view of the testimony of the physician tending to discredit their testimony. U.S. Fidelity c. Co. v. Hall,34 Ga. App. 307 (129 S.E. 305); Liberty Mutual Ins. Co. v.Williams, 44 Ga. App. 452 (161 S.E. 853). The superior court did not err in affirming the award of the Industrial Board in this case.

Judgment affirmed. Sutton and Felton, JJ., concur.