Adams v. Utica Mutual Insurance

76 S.E.2d 709, 88 Ga. App. 386, 1953 Ga. App. LEXIS 1095

• Court: Court of Appeals of Georgia
• Decided: June 12, 1953
• Docket: 34491
• Status: Published

Opinions

Sutton, C. J.'

1. The finding of the deputy director, denying compensation on the grounds that there was no evidence offered to show where or how the deceased met his death or to show that his death was caused by an accidental injury arising out of and in the course of his employment, and that the claimant failed to carry the burden of proving her claim, was authorized under the evidence. The competent evidence adduced at the hearing tended to show only that the claimant’s deceased husband was employed to service and repair industrial moving equipment, such as electric trucks and fork lifts, and was constantly on call, working more at night than in daytime; that, on November 17, 1951, he had placed repair equipment and tools in his station wagon before leaving his employer’s plant; that he had his car filled with gasoline and oil; that he had been working all day; and that he was last seen proceeding east on Memorial Drive in Atlanta. His wife was notified of his death about three hours after he was last seen, but she did not see his body after his death. It appears from the record that the affidavits of the claimant and C. J. Hudson, Jr., which are set out above, were filed with the full board before it passed on the appeal. There was no competent evidence in the record as to how the deceased employee met his death.

2. Code § 114-708 provides: “If an application for review is made to the Department of Industrial Relations within seven days from the date of notice of the award, all of the directors shall review the evidence or, if deemed advisable, as soon as practicable hear the parties at issue, their representatives and witnesses, and shall make an award and file the same in like manner as specified in the foregoing section, together with their rulings of law in the premises. A copy of the award so made on review shall immediately be sent to the parties at dispute. All of the directors may remand to a single director any case before them for review for the purpose of taking additional evidence; said evidence shall be delivered to all of the directors and it shall be taken into account before rendering any decision or award in such case.” If an application for review is made to the full board within the time prescribed, all of the directors shall review the evidence, or, if deemed advisable, they will hear the parties at issue, their representatives and witnesses, and shall make an award. On a review of an award of a single director, the full board acts as a fact-finding body, and may affirm the award or may reverse it, if the evidence so authorizes. The full board may hear the parties at issue, their representatives and witnesses, if this is deemed advisable by the full board. This is what the act itself states, and this has been ruled by this court in a number of cases. The full board may remand to a single director a case which is before them for review for the purpose of taking additional testimony. But the full board is not obliged to take additional testimony, where it is not deemed advisable for them to do so. Watkins v. Hartford Accident &c. Co., 75 Ga. App. 462, 465 (43 S. E. 2d 549).

In other words, the full board has the authority to hear additional evidence when a case is before it on review, when this is deemed advisable by the board, but this does not mean that a party has the right to try his case over again as though it had not been tried, unless, in the discretion of the board, this should be deemed advisable.

Code § 114-703 provides that the Workmen’s Compensation Board may make rules, not inconsistent with the act, for carrying out the provisions of the Workmen’s Compensation Law. The board's rule 25, with respect to taking additional evidence when a case is before it on review, is as follows: “When, in the discretion of the board, additional evidence is necessary for the completion of the record in a case on review, the full board will order the taking of such evidence before it. When either the employer or employee seeks to introduce new evidence at a review, application must be made for the introduction of new evidence, and it must be shown that the new evidence is of such a character as would follow the common law governing the admission of newly discovered evidence in the application for a new trial. The evidence sought to be introduced must not be evidence of cumulative or impeaching character, but must be of such a character as likely would have produced a different result had the evidence been procurable at the first hearing. It must be shown that the evidence was not known to the party who desires to introduce same at the time of the hearing before the board, and that by reasonable diligence this new evidence could not have been secured. In other words, the law of Georgia as to the nature and character of evidence required for the granting of new trials, will be applied by the State Board of Workmen’s Compensation before new evidence can be introduced in a review by the full board.”

Under the terms of the statute, and the rule adopted with respect to hearing additional evidence when a case is before the full board for review, the board may or may not hear or order additional evidence taken as in its discretion may be deemed advisable. The exercise of its discretion in such a matter may, in a proper case, be the subject of review by the courts. Southeastern Express Co. v. Edmondson, 30 Ga. App. 697 (119 S. E. 39); American Mutual Liability Ins. Co. v. Hardy, 36 Ga. App. 487 (137 S. E. 113); Moody v. Tillman, 45 Ga. App. 84 (4) (163 S. E. 521). But, on an appeal to the full board, neither party as a matter of right can demand that the case be tried as though no hearing has been had, as is done when a case is appealed from a justice court to a jury in that court or in the superior court, or when a case is appealed from the court of ordinary to the superior court.

Under the record as here presented, the single director was authorized in rendering the award denying compensation; the full board did not err in affirming the award and in denying a rehearing after approving such award; and the superior court did not err in affirming the award and action of the Workmen’s Compensation Board.

Judgment affirmed.

Gardner, P. J., Townsend, Worrill, and Carlisle, JJ., concur. Felton, J., concurs specially.