Travelers Insurance v. Hogue

204 S.E.2d 760, 130 Ga. App. 844
Court of Appeals of Georgia·Decided January 17, 1974·No. 48738, 48739·Published·Cited by 9 cases

Opinions

Hall, Presiding Judge.

This is a Workmen’s Compensation case. The employer and insurer, J. C. Penney Company and The Travelers Company, (hereinafter, "appellants”) appeal the decision of the Superior Court which set aside an award of compensation by the full Board of Workmen’s Compensation, and remanded the case to the board for the taking of a designated kind of medical evidence; for a finding of the percent of loss of use of claimant’s leg; and for computation of her pre-hearing medical expenses. Appellants’ position is that the court should have reversed the award. There is a cross appeal by claimant, Antoinette Hogue, who also contests the validity of the remand but urges that the court should have affirmed the award on the "any evidence” rule.

On October 9,1971, claimant was injured at work when a crate of dishes fell on the outside portion of her right leg beneath the knee, causing pain, swelling and initial numbness. At the compensation hearing, almost exactly a year later, claimant testified that her condition was substantially unimproved, and that when she stood or walked she experienced such swelling of the leg that she could not do her housework. Though other doctors testified as well, Dr. Fred Bennett, Jr., testified that the condition of the legs was active thrombophlebitis, and that this condition could have been caused by the injury, though he acknowledged that it could have been caused by other factors. The deputy director’s finding in pertinent part was, "I find further claimant has been unable to work since her injury, and continues to be disabled to work, inasmuch as her leg swells if she stands on her feet any length of time.” Compensation was awarded, and was confirmed by a majority of the full board on the subsequent appeal by appellants. Appellants then appealed to the superior court, which issued the remand order which they appeal here.

Appellants raise 21 enumerations of error many of which may be reduced to a claim that the superior court erred in failing to reverse the award for the reason that there was no evidence to support it, the testimony of Dr. Bennett being allegedly subject to objection on various grounds and failing to show a connection of the claimant’s thrombophlebitis with the work injury. Appellants additionally enumerate as error several attributes of [845] the remand order, including instructions therein to the full board for conduct of proceedings thereafter.

Where the award of the board is supported by any evidence the superior court is without authority to set it aside and remand to the board for the taking of further medical evidence. Code § 114-710; Fox v. Hartford Accident & Indem. Co., 130 Ga. App. 104 (202 SE2d 568); Turner v. Baggett Transportation Co., 128 Ga. App. 801, 804 (198 SE2d 412); Hartford Accident & Indem. Co. v. Snyder, 126 Ga. App. 31 (189 SE2d 919); Maczko v. Employers Mutual &c. Ins. Co., 116 Ga. App. 247 (157 SE2d 44). Dr. Bennett testified in answer to hypothetical questions that in his opinion the claimant’s thrombophlebitis could have been caused by the work injury, although it also could have been caused by a subsequent period of inactivity and bedrest in connection with a non-injury related hospitalization. Contrary to appellants’ contentions, medical testimony that a given event could have precipitated the injury complained of is sufficient to authorize the fact finding tribunal to find that it did cause it, and will support an award of compensation (Cox v. Employers Mut. &c. Ins. Co., 122 Ga. App. 659 (178 SE2d 287)), even though the evidence shows that the injury could have had a different cause (Ocean Accident & Guarantee Corp. v. Bates, 104 Ga. App. 621 (122 SE2d 305)).

It is true, as appellants’ claim, that testimony of a "possible” cause will not support an award if in the context of the testimony that "possibility” is plainly speculative or far-fetched. See Ladson Motor Co. v. Croft, 212 Ga. 275 (92 SE2d 103); Maczko v. Employers Mutual &c. Ins. Co., 116 Ga. App. 247 (157 SE2d 44); Travelers Ins. Co. v. Boyer, 102 Ga. App. 248 (116 SE2d 6); Woodruff v. American Mutual &c. Ins. Co., 67 Ga. App. 554 (21 SE2d 298); McDaniel v. Employers Mutual &c. Ins. Co. 104 Ga. App. 340 (121 SE2d 801). The medical testimony in the present case shows a sufficiently strong "possibility” that the trauma caused the thrombophlebitis to overcome the rule in those cases. Dr. O’Quinn testified that trauma was frequently associated with thrombophlebitis. Dr. Bennett testified that the exact cause of thrombophlebitis was not known but that, except for drug-use-associated thrombophlebitis occurring mostly in recent years, the main apparent causes were trauma and bedrest, and that in claimant’s case there was in his opinion a greater possibility that the trauma rather than the hospitalization caused it. Therefore, unless the testimony of Dr. Bennett is subject to objection, it is [846] sufficient to support the board’s award of compensation.

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Travelers Insurance v. Hogue, 204 S.E.2d 760, 130 Ga. App. 844 (Ga. Ct. App. 1974).

204 S.E.2d 760 (Travelers Insurance v. Hogue) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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Travelers Insurance v. Hogue
204 S.E.2d 760 (Court of Appeals of Georgia, 1974)