American Surety Corp. v. Bush

112 S.E.2d 635, 100 Ga. App. 819, 1959 Ga. App. LEXIS 736
Court of Appeals of Georgia·Decided December 3, 1959·No. 37768·Published·Cited by 1 cases

Opinions

Quillian, Judge.

The claimant, a carpenter, suffered various injuries as a result of a fall from a scaffold on December 8, 1955. The effects of the original injury lasted only a few weeks, but as a result of the administration of certain, antibiotics in the course of treatment, the claimant developed a condition known as “black tongue” which has persisted since about a month after the original injury. According to the evidence, when he is able to* work he must take medicine for this condition on the job and must take time off on numerous occasions to go to the doctor. Because of this, he has been unable on several occasions to obtain or to continue employment as a carpenter.

“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 State Board of Workmen’s Compensation 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 (Ann.) § 114-709. “The prime requisite of a review under this Code section is that there, be a change in the employee’s physical condition between the time of the review and any [821] award made by the board or any settlement made between the. parties and filed with the board, and the burden of establishing such requisite is upon the party claiming the change in condition.” Fortson v. American Surety Co., 92 Ga. App. 625 (2) (89 S. E. 2d 671). “A change of condition within the rule that after entering an award the Board of Workmen’s Compensation may increase or decrease the compensation allowed thereunder due. to a change of condition, means a change of the physical condition of the claimant subsequent to the first award.” Travelers Ins. Co. v. Hammond, 90 Ga. App. 595 (3) (83 S. E. 2d 576); Georgia Marine Salvage Co. v. Merritt, 82 Ga. App. 111 (1) (60 S. E. 2d 419). The only finding as to change in condition is as follows: “I find further there is no evidence the employer has offered claimant any work which he is able to do. That claimant has worked for other employers when he was able to do so, and also sought employment but was turned down because of his physical impairment. I find therefore claimant has suffered a change in condition since the award of December 19, 1957, based on decrease in earning capacity. That whereas he was able to do some work in 1957, he had not been able to find work in 1958.”

The claimant positively testified that he was suffering worse on account of the injuries caused by the accident which resulted in his disability and the disabling condition caused by the treatment of his injuries. The fall fractured his skull, the medicine gave him “black tongue.” He swore that his head ached more and the black tongue condition was so bad that he could not work. Both conditions he positively testified had grown worse since the former award. The employer’s medical witnesses admitted both conditions and their very distressing nature. The doctor testifying to his skull injury and consequent headaches, while of the opinion that the claimant could work, admitted he could not say whether the headaches had become progressively worse since the last award or agreement for compensation. So his testimony did not really contradict the claimant’s, either as to his inability to work or that the injury received to his head had changed for the worse. The doctor who testified to the claimant’s condition as black tongue described a most distressing [822] condition; indeed, the doctor termed it distressing and while pointing out that it would be a handicap to the claimant, testified that it alone would not prevent the claimant from working under certain conditions, such as carrying his medicine with him when he climbed up a ladder or leaving it behind and climbing back down for it. The condition that the doctor described as black tongue was: “To the best of my knowledge, in Mr. Bush’s case, in itself it is not disabling. Now, I will modify that by saying that it might be inconvenient for him to carry his medicine with him and take it as directed, but, there again, we have no way of telling when this fungus can spread further and get in the tracheal bronchial tree and disseminate into the blood stream and cause a more serious infection. We never know when that might develop. But I think I can state that within the actual confines of his tongue, the presence of this fungus, and other resistant organisms on his tongue, that it is in no way going to prevent him from doing his usual occupation. Actually, the only inconvenience would be that he would have to take a fair amount of medicine at regular intervals and he might find inconvenience in carrying it around with him . . . Q. Would this condition in his mouth cause his mouth to taste like rotten eggs? A. Some have described it like rotten eggs, but then again others have described it, not in Mr. Bush’s case necessarily, but it is a nasty, a vile, and almost what we in medical terms would call a fecal odor. This infestation of the tongue can be cleared up, but I recall one -time where he had been treated by another practitioner who gave him a local antibiotic, a lozenge, and when I saw him again, or if he would eat frozen food that had been preserved with antibiotics, within a period of three or four days, the tongue would again become completely coated just as it was in the beginning, and we would have to start all over again.”

It is notable that the doctor did not testify that the combination of the black tongue and headaches could not render the claimant unable to work, but simply that, in his opinion, the black tongue did not.

I am aware of the rule that a condition that merely makes it inconvenient or even painful for the claimant to perform the [823] duties of his employment does not necessarily incapacitate him to work. But this does not mean that a claimant must labor in unbearable torture so great as to prevent the effectiveness of his efforts to the extent that he is disabled to work and no employer considers him fit to work.

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American Surety Corp. v. Bush, 112 S.E.2d 635, 100 Ga. App. 819, 1959 Ga. App. LEXIS 736 (Ga. Ct. App. 1959).

112 S.E.2d 635 (American Surety Corp. v. Bush) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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