Nationwide Mutual Insurance v. Porter

258 S.E.2d 135, 150 Ga. App. 513, 1979 Ga. App. LEXIS 2276

• Court: Court of Appeals of Georgia
• Decided: April 13, 1979
• Docket: 57108
• Status: Published

Opinions

Deen, Chief Judge.

The claimant in this workers’ compensation case suffered from a sprained or ruptured vertebral disc which eventually required surgical procedures. The only question in the record is whether the injury was employment-related. The administrative law judge, examining the whole record, found that the injury was not work-related, based, as it appears, on discrepancies in the testimony. The claimant told of an accident at a certain address, but he was not there at the time stated; he did not mention any accident to either examining physician; the length of time he had been suffering seemed contradictory; certain health insurance forms stated that the claim did not arise out of the employment, and the supervisor preparing them stated she was not informed of any accident. The health insurance forms were admitted over objection, the administrative judge specifying that he was not considering them as medical evidence, but found them admissible and relevant only to the question of the amount of credit to be given the plaintiffs testimony.

On appeal, the full board remanded for the taking of further testimony and, after considering it, affirmed the award as written. The superior court judge to whom it was then appealed held that the statements in the forms were hearsay and reversed the case with the holding that a decision should be made without any consideration of their contents.

A reading of the entire transcript in connection with the various awards and opinions makes the following clear:

1. (a) The additional evidence offered after the remand by the full board added nothing of importance to the transcript of evidence.

(b) An additional consideration of the record after ruling out the health insurance claim forms would add nothing because the claimant’s supervisor, who filled out the forms based on what the claimant and/or his wife told her testified positively on two occasions that when the claimant first recounted the incident in which he now states his injury was received, he did not indicate that he had suffered a back injury while going over a fence into a customer’s yard.

(c) Even if the statement in the forms should not technically have been considered as an admission by the claimant, and even if this could, in view of the other discrepancies noted by the administrative law judge, be itself a sufficient ground for remand, it is clear from the award that other contradictions affected the credibility of the claimant in the judge’s opinion and also that, since he relied in part on the intelligence and truthfulness of the supervisor’s direct testimony, the deletion of the forms, if prepared by her, would in no way affect his judgment.

2. Where there is legal evidence in the record supporting the findings and award made by the board, the superior court is not authorized to remand the matter for further findings or award. Turner v. Baggett Transportation, 128 Ga. App. 801 (3) (198 SE2d 412) (1973), followed in Mission Ins. Co. v. Ware, 143 Ga. App. 550 (1) (239 SE2d 162) (1977). Although Code Ann. § 114-707 provides the opportunity for opposing counsel to object to medical reports, it does not provide a new ground of appeal based on the contention that evidence was illegally admitted or excluded, as contended here. Code § 114-710. The most that the superior court or this court can do is, if it finds a significant misstatement of testimony in the finding of facts which in all likelihood erroneously influenced the award, to remand the case for further consideration. Aetna Ins. Co. v. Jones, 125 Ga. App. 471 (188 SE2d 180) (1972). In this case, it clearly appears from the award that either the claimant, his wife, or his supervisor filled in blanks stating that this disability was not accident-connected. If the employee did so or if his wife did so at his direction this is an admission against interest. If the supervisor did so, her testimony was that she understood from her conversations with the claimant and his wife that such was the case. And the law judge further stated that he admitted the documents only as bearing on the issue of credibility, with a further indication that he accepted as true the testimony of the supervisor.

Argued January 10, 1979 Decided April 13, 1979 Rehearing denied July 3, 1979 Awtrey & Parker, Donald A. Mangerie, Toby B. Prodgers, for appellants. G. Robert Howard, for appellee.

It was accordingly error for the superior court to reverse the award of the full board denying compensation.

Judgment reversed.

Quillian, P. J., Shulman, Birdsong and Underwood, JJ., concur. McMurray, P. J., Smith, Banke and Carley, JJ., dissent.