Liberty Mutual Ins. Co. v. Thrower , 76 Ga. App. 275 ( 1947 )

1. An award of compensation by the Board of Workmen's Compensation to a claimant who has several times been requested to report to the doctor of the employer for examination, and has failed to do so, but who does report to such doctor immediately upon being ordered to do so by the board, does not constitute an abuse of the judicial power and discretion of the board, which entered the award after hearing and considering evidence on the subject.

2. An award to a claimant worker for permanent partial disability due to an injured member of his body, which has recovered sufficiently to restore full use thereof, but which is left in such tender condition that the full use thereof must be refrained from on account of the imminent danger of reinjuring it, is authorized by the Workmen's Compensation Law.

3. Noncompliance with the rule providing for the service of briefs on opposing counsel is not cause for dismissal of the writ of error.

DECIDED DECEMBER 5, 1947. Buster Thrower, the claimant, filed an application for compensation and hearing with the Board of Workmen's Compensation against Brunswick Pulp and Paper Company, the employer, and its insurance carrier, Liberty Mutual Insurance Company, contending that he had received certain injuries arising out of and in the course of his employment, on March 16, 1946. The matter was assigned for hearing before a single director on May 14, at which time counsel for the employer filed a plea in abatement setting up that the claimant was injured on March 16, and was immediately thereafter treated at the employer's infirmary until March 30, on which date he was discharged by the employer for reasons entirely disconnected with his accident; that thereupon and on several occasions thereafter the claimant was notified by the employer in writing to report to the employer's physician for examination. Upon the filing of this plea, the director continued the hearing and ordered the claimant to report to the employer's physician for examination, which the claimant did on the following day.

The matter came on for hearing before the single director on June 20, and the evidence authorized findings of fact substantially as follows: The claimant suffered an accident arising out of and in the course of his employment on March 16, 1946, in the nature of caustic burns to both arms and his right shoulder He reported his injury the same afternoon and was sent to the plant's infirmary, where he was treated by a registered nurse, which treatment he continued to receive until March 30, 1946, at which time he was discharged for causes independent of his injury. Upon his discharge he was requested to report to the company physician for a physical examination, and subsequently on April 1, and 19 and May 6 the employer requested him to report for such examination. On May 14 a director of the board ordered him to report to the company physician, which he did on May 15. After he had been discharged and the plant's infirmary was no longer available to him, he selected a private physician, who treated him on about twenty separate occasions from April 2 to June 10. He was disabled from work until June 10. As a result of his injury he has a 10 percent or 15 percent permanent disability due to the keloid or scar-tissue formation at the upper part of his right-arm point of the shoulder, which, due to the tenderness, will likely become reinjured from time to time permanently throughout the future from carrying burdens on his right shoulder. He was earning in excess of $40 weekly.

The hearing director awarded the claimant compensation to begin seven days after March 30, 1946, at the rate of $20 per week and to continue until June 10, and in addition thereto compensation as of June 10 to continue for a period of twenty weeks representing a 10 percent permanent disability to the right arm, this being compensation at the full rate for a reduced number of weeks. The employer appealed this award to the full board, where it was affirmed in its entirety. Thereupon the employer appealed to the Superior Court of Glynn County, and the award was there affirmed.

The judgment of the Superior Court of Glynn County affirming the award is assigned here as error, because: (a) the facts found by the single director and approved by the full board do not support the aforesaid awards; (b) there is not sufficient competent evidence to warrant the single director in making the findings of fact contained in the order, decree, or award of August 9, 1946, or to warrant the full board in affirming the action of the single director by its order, decree, or award of September 13, 1946; and (c) there is not sufficient competent evidence in the record to warrant the finding in favor of the claimant of compensation for the period commencing seven days after March 30, 1946, and up to May 15, 1946, the date on which the claimant finally reported to the employer's physician for examination, no evidence having been introduced by the claimant justifying a refusal on his part to submit to such physical examination, and the sustaining of the employer's plea in abatement on that ground being conclusive, no justification for the refusal existed.

After the case reached this court, a motion to dismiss the writ of error was filed by the claimant, in which motion it was charged that counsel for the employer and insurance carrier had failed to file and serve his brief in compliance with Rule 21 of this court (Code, § 24-3621). 1. A part of § 114-503 of the Code provides as follows: "If the employee refuses to submit himself to or in any way obstructs such examination requested by and provided for by the employer, his right to compensation and his right to take or prosecute any proceedings under this Title shall be suspended until such refusal or objection ceases, and no compensation shall at anytime be payable for the period of suspension unless in theopinion of the Department of Industrial Relations thecircumstances justify the refusal or obstruction." (Italics ours.) In Zant v. U.S. Fidelity Guaranty Co., 40 Ga. App. 38 (1) (148 S.E. 764), the following was held: "The power given by the workmen's compensation act to the industrial commission, to determine whether an injured employee's refusal to accept medical, hospital, or surgical service tendered him by the employer is justified, is not an arbitrary power, but is a power in its nature judicial, and can be exercised by the commission only after hearing and consideration of evidence."

It therefore follows that the Board of Workmen's Compensation, acting in its judicial capacity, must hear evidence and determine whether or not a failure of the claimant to submit, after notice of his employer, to a physician selected by his employer for a physical examination shall bar compensation. The board, acting in its proper capacity in the instant case, heard evidence on this subject. The evidence was that immediately upon being injured the claimant went to the plant's infirmary and was treated by a nurse from the day of his injury for a period of some two weeks, or until March 30, when he was discharged by his employer. Upon his discharge he, no longer having access to the plant's infirmary, immediately selected and procured a physician of his own choice who treated him some twenty times between April 2 and June 10. Although the employer, whose agents had full knowledge of his physical condition, had made several requests of the claimant that he report to its doctor for a physical examination, the claimant failed to do so until ordered by the board; and immediately after such order, he submitted to such examination. From these facts the director of the Board of Workmen's Compensation found that the rights of the employer were in no way impaired by the failure of the claimant to submit to such examination at an earlier date. This finding is authorized by the evidence. Certainly the condition of the claimant was in no way aggravated by his failure to report for such physical examination, it appearing that the doctor of his selection was well qualified and that his treatments were administered regularly.

2. The evidence is undisputed that, even though the claimant's injury has healed sufficiently, he has full use of his right shoulder. Nevertheless, the evidence is also undisputed that it is left in a tender condition, such that the carrying of a burden on the shoulder will have a tendency to reinjure it. Therefore it follows that the worker must in the future refrain from carrying burdens on that shoulder. Necessarily this condition impairs the efficiency of the worker to some extent. To what extent is a question of fact. The undisputed medical testimony in the record fixes this partial permanent disability at from 10 to 15 percent. The hearing director found 10 percent. This finding is supported by the evidence.

3. The motion to dismiss the bill of exceptions is denied. Noncompliance with Rule 21 of this court (Code, § 24-3621), with reference to failure to serve briefs on opposing counsel, has often been held by this court not to constitute cause for dismissing a writ of error, but is a matter for contempt. See many cases cited under § 24-3621 of the Code (Ann.), catchword "Noncompliance."

The judgment of the superior court which affirmed the award of the Board of Workmen's Compensation is not error for any of the reasons assigned.

Judgment affirmed. MacIntyre, P. J., and Gardner, J.,concur.