The evidence demanded a finding that the claimant was totally incapacitated for work, and in the absence of any showing of a change in his condition, the judgment of the superior court reversing the award of only twenty-five percent disability by the Workmen's Compensation Board was not error.
On June 17, 1957, James Boyer was employed by Sharman, Allen, Gay Taylor, Inc., and on this date received an injury, for which according to an approved agreement entered into between the claimant, his employer and the employer's insurance into between Travelers Insurance Co., he was to be compensated on the basis of total incapacity to work from June 27, 1957, until terminated in accordance with the provisions of the Workmen's Compensation Act. These weekly payments were made from June 27, 1957, up to August 5, 1957, at which time they were discontinued. Following the discontinuation of these payments, the claimant requested a hearing before the State Board of Workmen's Compensation. Hearings were held before a deputy director, who on February 5, 1959, issued an award granting compensation based on a twenty-five percent disability. This award was appealed by both parties to the full board, where the award of the deputy director was, in effect, affirmed. Thereupon both parties appealed to the Superior Court of Clayton County where the award of the full board was reversed and a judgment entered directing the State Board of Workmen's Compensation to enter an award in the claimant's favor and against the employer and insurance carrier for total incapacity to work with maximum weekly payments from June 25, 1957, until terminated in accordance with the provisions of the Workmen's Compensation Act. The employer and insurer except to the judgment of the superior court.
NICHOLS, Judge.
1. In order for the deputy director's award to have been authorized in this case, there must have been some competent evidence in the record of a change in the claimant's physical condition between the time when the approved agreement was entered into between the parties, whereby the claimant was paid the maximum amount based on a total incapacity to work, and the time of the hearing before the deputy director. This record discloses that the claimant, at the time of his injury, was a boy sixteen years of age employed and working as a manual laborer. The claimant and his father testified that he had been totally unable to work since sustaining his injury of June 17, 1957. Dr. Martin T. Myers and Dr. Frederick R. Lovell, witnesses for the claimant, each testified that he was permanently injured and unable to return to work. Dr. James Funk, one of the employer's medical experts, testified that he could not arrive at a completely adequate opinion from a single examination, but that he did find that the claimant had a limited motion of the back and neck, limited rotation, flexion and extension, and that the claimant complained of pain when he endeavored to extend said limited motion. Dr. Funk further testified that he believed the claimant was feigning his limitation of back and neck. Dr. Roy Ledbetter, the employer's other medical expert testified that he saw the claimant on three different occasions, the last time on August 5, 1957, at which time he dismissed the claimant as a patient and pronounced him capable of returning to work. However, when Dr. Ledbetter was confronted with the medical opinions of Doctors Myers and Lovell, who had examined the claimant on December 17, 1957, some four months subsequent to the claimant's last visit to Dr. Ledbetter, he stated that some intervening agent could have resulted in the condition found by Doctors Myers and Lovell, but that he could not say at the time his testimony was being taken that the claimant was not suffering pains in his back from the injury he had received on June 17, 1957. Thus it is apparent that the most that could be said of Dr. Ledbetter's testimony unfavorable to the claimant was that some intervening agent could have resulted in the condition found by Doctors Myers and Lovell. As here used the word "could" merely expresses "a contingency that may be possible" and nothing more. Webster's New International Dictionary (2d ed., 1934); U.S. Casualty Co. v. Kelly, 78 Ga. App. 112, 116 ( 50 S.E.2d 238). Obviously this testimony was insufficient to establish or sustain a contention that there had been a change in the claimant's condition.
2. At the time of the claimant's injury all parties agreed that the claimant had suffered an injury that rendered him totally incapacitated to work, and was entitled to be paid under Code Ann. § 114-404, maximum disability payments as long as he continued so incapacitated, or until a change in his condition be shown by competent evidence on a hearing called for that purpose. There is no competent claimant's condition. In the case of Fletcher v. Aetna Cas. c. Co., 95 Ga. App. 23 ( 96 S.E.2d 650), the decision in the case of Phinese v. Ocean Accident c. Corp., 81 Ga. App. 394 ( 58 S.E.2d 921), was reaffirmed, as it has been in many other cases, and it was again announced that in order for an award finding a change in condition to be authorized there must be evidence to authorize the finding that the claimant's condition has changed since the original award, and it was there held that the testimony of one physician, who examined the claimant only at the time of the hearing, as to what percentage the claimant was then disabled, was insufficient to show that there had been a change in condition. Here the testimony relied on to show that there had been a change in condition (this time for the better) was a physician who examined the claimant only at the time of the hearing, here being reviewed, who testified as to what he believed the claimant's condition to be at that time. Accordingly, if such testimony would not be sufficient to authorize a finding of a change in the condition for the worse it certainly would not be sufficient to authorize a finding of a change in condition for the better, and such testimony was of no evidentiary value.
Neither is there any competent evidence in this record that the claimant was capable, able or qualified to do any work other than physical manual labor, and the claimant is entitled to be paid under the provisions of Code Ann. § 114-404, supra, "not only so long as the injured employee is unable to do any work of any character, but also while he remains unable, as a result of his injury, either to resume his former occupation or to procure remunerative employment at a different occupation suitable to his impaired capacity." U.S. Fidelity c. Co. v. Brazier, 96 Ga. App. 743, 745 ( 101 S.E.2d 625), and citations.
Accordingly, the judge of the superior court did not err in reversing the State Board of Workmen's Compensation, and the judgment of that court is hereby affirmed.
Judgment affirmed. Gardner, P. J., Carlisle, and Frankum, JJ., concur. Felton, C. J., Townsend and Bell, JJ., dissent.
ON MOTION FOR REHEARING.
NICHOLS, Judge.
The insurer and employer content in this motion for rehearing that this court has overlooked and failed to apply the law as found in the decision of Wilson v. Swift Co., 68 Ga. App. 701 ( 23 S.E.2d 261) which they contend would require a different decision.
The case of Phinese v. Ocean Accident c. Corp., 81 Ga. App. 394, which this court has cited in the majority opinion, holds that a physician who had not seen the employee claimant prior to the hearing on change of condition could not testify that the claimant's condition had changed, in the absence of other testimony as to a change in condition. This case cited and followed the cases of Moore v. American Liability c. Co., 67 Ga. App. 259 ( 19 S.E.2d 763), and Gravitt v. Georgia Cas. Co., 158 Ga. 613 ( 123 S.E. 897), which are older cases than that relied on by the movants, and if there is any conflict between such cases and the case relied on by the movants the older cases of this court and the decision of the Supreme Court, herein cited, must be followed. "Where there is no change in condition, the department cannot rehear the case on its merits and determine under the evidence that the claimant was totally disabled and had been since his injury, and make an award increasing his weekly compensation payments from a fifty percent disability basis to a one hundred percent disability basis, or vice versa." Fralish v. Royal Indem. Co., 53 Ga. App. 557 (1) ( 186 S.E. 567). In the present case there was no competent evidence of a change in claimant's condition.
Rehearing denied.