Continental Casualty Co. v. Bennett , 69 Ga. App. 683 ( 1943 )

An award of the Industrial Board based on any evidence is beyond the authority of this court to disturb, except where fraud in its procurement is shown. In determining the award from the evidence, it is the duty of such Board to consider all the surrounding facts and circumstances concerning the inquiry, together with the testimony of the witnesses. In this consideration the opinions of expert witnesses are not conclusive upon the Board, but may be disregarded.

DECIDED JULY 16, 1943. Dock Bennett filed a claim with the Industrial Board against Artley Company and Espy Paving Construction Company, as employer, and Continental Casualty Company, as the insurance carrier, to recover compensation for the loss of sight in his left eye. The hearing director made an award in favor of the claimant, the full board affirmed the award, and the judge of the superior court sustained that finding. The latter judgment is assigned as error on the ground that the award was contrary to law in that there was not sufficient competent evidence to authorize it.

"The finding upon the issues of fact by the commission is conclusive as to those issues in the reviewing court, if there is any evidence to sustain it." Georgia Casualty Co. v. Martin,157 Ga. 909, 915 (122 S.E. 881). See also United StatesFidelity c. Co. v. Christian, 35 Ga. App. 326 (3) (133 S.E. 639). There is sufficient evidence to sustain the finding of the commission. The superior court did not err in sustaining the award.

This court must accept that evidence most favorable to sustain the award in question. Under this record it may be, and is conceded, that an award denying compensation might be affirmed, but that is not the question before us. The question is, under the facts of this case, and under the circumstances of the case as shown in the record, is there any evidence to sustain the award made? Let us then examine the record from this viewpoint.

The claimant, testifying in his own behalf: "Q. Did anything happen to you on or about May 8, 1941, while you were on the job? A. Yes, sir. Q. Tell the judge about it. A. I stuck a little plank in my eye. The foreman told me to saw off part of it and I had it in my hand and I was in a hurry and I reached down to the floor and picked up the saw and the end of it went in my eye. Q. What happened to your eye when the piece of wood stuck in it? A. Blood shot all over. Q. Were you treated by Dr. deCaradeuc? A. Yes, sir. Q. For how many days? A. He treated me every day, Thursday, Friday, Saturday and Sunday and he told me Sunday I could go back to work on Monday. He give me some medicine to go in my eye and told me to put it in there for two weeks and I did. . . Q. The trouble in your eye, did it or did it not seem to you to have cleared up? A. Yes, sir, in about four or five weeks after I went back to work it kind of cleared up, and I thought my eye was all right but in about five or six weeks after then I went blind. . . Q. That was in which eye? A. The left eye. Q. Can you fix it by the month, was it or not the latter part of July or early part of August that you went blind? A. It was in July. Q. You testified you discovered one morning that you couldn't see and that night on the street you tried to see an electric light and couldn't see it. Was there any pain in connection with the loss of vision? A. Yes, sir, it kept feeling like a skim over my eye all the time. I kept wiping it and trying to see out of it all the time. . . Q. And you recall when he operated? A. The 3rd day of September. Q. Of 1941? A. Yes, sir. . . Q. Have you any sight in the eye now? A. No, sir. Q. Until this injury on or about May 8th of last year, what was your general health? A. Good. Q. What was the condition of your eyes? A. Good. Q. Ever had any trouble with them before? A. No, sir. Q. Never at any time? A. No, sir. Never had to put on glasses. Q. Had you been treated by doctors for any kind of illness in recent years? A. Not since I was a boy. I had typhoid fever one time. Q. And since that time your health has been so good you haven't needed any doctor at all? A. No, sir. Q. You have had no trouble with your eye prior to this injury by accident? A. No, sir. Q. And following that the sight has gone? A. Yes, sir. Q. The Company sent you to the doctor? A. Yes, sir. Q. And that was Dr. Holton? A. Yes, sir. Q. Dr. Holton told you he was not an eye specialist and would have to send you to an eye specialist? A. Yes, sir. Q. And he sent you to Dr. deCaradeuc? A. Yes, sir. . . Q. You returned to work on Monday, I believe, which was four days after the accident? A. Yes, sir. Q. Did you get along all right in your work? A. Yes, sir. Q. You continued the drops for the two weeks after the accident? A. Yes, sir. . . Q. Could you see all right out of your eye after you had used the drops for the two weeks? A. I couldn't see as good, I could see a little. . . Q. What treatment did Dr. Rosen give you? A. He examined my eye and said I had a lot of blood in my eyeball, and give me some medicine to take, and he give me some to put in my eye. . . Q. Did you use the medicine? A. Yes, sir. Q. Did you get any relief? A. No, sir. Q. How long were you under Dr. Rosen's treatment? A. Two weeks. Q. And then you returned to Dr. deCaradeuc? A. Yes, sir. Q. And what treatment did Dr. deCaradeuc give you? A. He put them drops in my eye. Q. And how long did you go to Dr. deCaradeuc for treatment? A. Right about a week and the last time I went to him he told me that the insurance company was not going to take care of me any longer and he told me he wanted to see me again but I didn't go back any more, I got so bad off I just went on to Dr. Lang and it wasn't long before he got me out of my pain. I was suffering a lot of pain. . ."

Dr. Lang, a witness for claimant, testified in part as follows: "Q. What is glaucoma? A. Glaucoma is increased pressure in the eyeball which takes several different forms, acute type or simple glaucoma that has very little pressure but gradually snuffs out the sight unless the pressure is relieved. Q. Does glaucoma arise from trauma? A. Yes, sir. . . Q. In your opinion, doctor, could the accident concerning which you just heard him testify to and which he gave you in his history, could that accident have been the cause of the loss of vision? A. Now, the accident apparently was rather trivial, because at the end of four days he returned to work and although it is possible for a trivial accident to have resulted in a secondary trouble, it is not probable. Q. Irido-cyclitis is a rather mysterious trouble? A. `Mysterious'? Q. By `mysterious' I mean they are diseases that the medical profession has not fully found out all about the predisposing causes? A. Some phases of glaucoma, the etiology of glaucoma, is still somewhat of a mystery; we know glaucoma is increased pressure in the eyeball, but we frequently can't find a reason for it in some cases. . . Q. And, not having seen him until the late time you did, you can not, of course, state positively whether or not the accident brought on the loss of vision? A. No, sir. Q. But it is your testimony that it could have? A. That is a possibility. I would rather put it that way. . . Q. Doctor, medical men differ, do they not, occasionally, as to what one would consider a severe injury or a trivial injury? Is there a range in there where the human element comes in, what one man considers trivial and another man might consider more severe? A. The human factor enters into it. . . Q. If a patient came into your office and told you that he had received an injury to his eye, could you, by an examination of the eye, determine whether or not that would develop into an iritis? A. How soon after the receipt of the injury does the patient show up? Q. Say immediately after the injury you examine the eye, could you tell from an examination of the eye whether or not the injury was severe enough to produce later an iritis or an irido-cyclitis? A. No, sir. Q. You could not? A. No, sir. . . Q. Can you answer it, doctor, on the same basis as propounded with the additional assumption that he had good cause for using the drops two weeks beyond his discharge under the direction of this physician? A. If he had good cause to use drops for two weeks after his physician had discharged him it would indicate one of two things, either the man did continue to have trouble or the man just desired to use the treatment. Well, if the man did continue to have trouble for two weeks after being discharged by the doctor although he was conscious of trouble and was treating himself for it makes the sequence of things that did happen more probable than it would if the man had been discharged and had no further evidence of trouble whatsoever in the time elapsed. Q. Let's take that four or five paragraph question there and change it just a little, the question as stated with this addition: The first eye specialist discharges him after three or four days, prescribed drops for him to put into his eye which he does for two weeks. The medicine is exhausted. It is an additional two or three weeks thereafter before the inflammation and trouble in the eye, in the opinion of the patient, completely clears, then under these circumstances would the probability of the original trauma bringing on the trouble and causing the loss of vision be greater than if the eye had been completely well at the end of four or five days? A. Yes, sir, possibly would be more, would be a bigger factor."

L. R. Aiken, a witness for the claimant, testified, that he had worked on the same job with the claimant, and had known him for thirty years; had never known him to lose any time from work because of illness; had not known him to complain of any trouble with his eyes, and that his eyes were apparently good.

Dr. deCaradeuc, a witness for the defendant, testified, in part: "Q. Did you prescribe any additional treatment for him after you discharged him? A. No, sir, I didn't, I may have told him to keep up the drops for a couple of days and stop, but I didn't prescribe it as a regular treatment from then on for any length of time. I may have just said `keep up the drops for a couple of days and then stop.' Q. So when you saw him on May 11th the corneal abrasion was clear? A. Yes, sir. Q. But the hemorrhage was not clear? A. Not entirely clear, no, sir. Q. And would that perhaps have been your reason or a reason for suggesting that he continue the application of the drops? A. It may have been a reason why he kept it up, yes, sir."

Dr. Chisholm, a witness for the defendant, testified: "Q. Why not longer? A. Because the epithelium heals over and the patient goes to work. With the corneal abrasion that is not healed, the symptoms are so pronounced that the patient will not go to work, they have a red eye. Q. A corneal abrasion could develop into an iritis, could it not? A. In due course of time, yes, sir. . . Q. Doctor, was it your testimony that irido-cyclitis, the most frequent cause of it would be toxemia? A. Yes, sir. Q. And then trauma? A. Yes, sir."

Such, in part, is evidence favorable to the claimant which is sufficient to sustain the award.

After the claimant closed his case, the defendant (plaintiff in error here) introduced expert medical testimony for the purpose of nullifying or rebutting the case of the claimant as made out by the evidence above set forth, as well as testimony concerning two Wassermann tests made on the claimant after the injury was received. One of these tests was made August 9, 1941, which showed negative, and the other November 26, 1941, which showed positive. The positive test showed "4 plus, with 40 units." Dr. Howard testified as to these tests: "Q. Do you not sometimes get a false Wassermann reaction? A. Oh, yes, sir, but they are usually weak reactions. Q. Would it not have been a better way to determine what the man's blood showed if there had been a series of Wassermanns rather than simply one? A. Where there is a conflict of reports, when one man in the laboratory claims negative and the other positive that is the usual procedure, to take a series to try to determine who is right. Q. From your report could you tell whether this syphilis had been contracted recently or sometime before or could you tell? A. It would not be possible to tell unless it was in a secondary stage, that is, from the blood itself." It appears that the finding of a single director which was approved by the full board disposes of syphilis as a factor in our consideration. The director found: "I cannot say much on the subject of the disease of syphilis as injected into this case, and I do not believe from the evidence that it had any material part in this case."

In passing, it might be assumed that when the claimant completed his testimony able counsel for defendant were convinced that the claimant had made out a case else they would have introduced no testimony. Other than the testimony regarding the tests above referred to, the testimony for the defendant was in the main expert medical testimony, a great deal of which was based on hypothetical questions. As to expert testimony, the rule is well expressed in Blanchard v. Savannah River Lumber Co.,40 Ga. App. 416, 424 (149 S.E. 793): "While competent expert testimony is entitled to great weight, it is not so authoritative that either court, jury, or commission is bound to be governed by it, since it is advisory merely and intended to assist them in coming to a correct conclusion. Consequently courts, juries, and commissions, in determining the issues they are called upon to settle, may and should take into consideration all the surrounding facts and circumstances attending the subject-matter of the inquiry." The Supreme Court states the rule in Manley v. State, 166 Ga. 563, 566 (19) (144 S.E. 170). "The opinion of an expert witness is not conclusive upon the jury: Such testimony is intended to aid them in coming to a correct conclusion upon the subject; but the jury is not bound by such opinion, and can disregard it." "Negative evidence is only a species of circumstantial evidence." GeorgiaRailroad Banking Co. v. Wallis, 29 Ga. App. 706, 714 (116 S.E. 883). We might add that positive evidence is only a species of direct evidence. Black's Law Dictionary, "Evidence", note, p. 448. There are various classifications of evidence. Code, § 38-102, provides: "Direct evidence is that which immediately points to the question at issue. Indirect or circumstantial evidence is that which only tends to establish the issue by proof of various facts, sustaining by their consistency the hypothesis claimed. Presumptive evidence consists of inferences drawn by human experience from the connection of cause and effect, and observations of human conduct." Therefore, applying these rules of evidence to the facts of the instant case, this court is without authority to disturb the award.

While it is true that the single director stated: "The difficult question in the case is the determination of the cause of the blindness. Neither side was able to present positive evidence on this question." (Italics ours). We know of no rule of law which requires the claimant to make out his case by positive testimony before he is entitled to an award in his favor. The true rule is, as stated above, that the commission "may andshould take into consideration all the surrounding facts andcircumstances attending the subject-matter of the inquiry." (Italics ours).

As a brief summary, the facts and circumstances as revealed by the record show that this claimant, without any previous material impairment of his general health or vision, was injured in his eye on May 8, 1941, by a blow with a plank. He immediately went to the defendant's doctor, a general practitioner, who directed him to an eye specialist. The specialist treated him from May 8, to May 12, 1941, and prescribed treatment for two weeks thereafter. About four weeks after the injury he went to another doctor, who treated the eye for about a week. Then he returned to the first eye specialist, who again treated him for an additional week. After this he went to another eye specialist and an operation was performed which relieved the pain, but which did not restore the sight which was completely lost before the operation. The claimant testified that from the time of the injury until the loss of sight there were interims of two weeks or more when no specialist saw him, and one of the specialists testified in effect that from the time a trauma to the eye was inflicted causing an abrasion, glaucoma might have developed therefrom without pain attending certain stages of it. The claimant testified that at no time from the date of the injury to the loss of sight did his eye feel normal; that it felt like there was "a skim over my eye all the time."

In our opinion this evidence is amply sufficient to sustain the award, and the superior court did not err in affirming the award of the commission.

Judgment affirmed. MacIntyre, J., and Gardner, J., concur.Broyles, C. J., dissents.