Bituminous Casualty Corp. v. Jackson

Sutton, J. The claim of A. O. Jackson, employee, against L. P. Friedstedt, employer, and Bituminous Casualty Corporation, insurance carrier, for compensation for an injury received by the employee while engaged in the performance of his work with the employer and which he claimed resulted in the loss of vision in one of his eyes, was heard before a director of the Industrial Board. The director found from the evidence adduced on the hearing that the claimant’s eyes had been operated on more than twenty years previously, which operation was performed in order to straighten the eyes of the claimant, who was cross-eyed; that since this operation the claimant had been wearing glasses with heavy lenses; that the medical testimony showed that the claimant has a squint in his right eye; that the muscles controlling the movements of his eyes do not function properly; that through the years the vision in the claimant’s right eye had become impaired and practically lost because of nonuse, which was all due to the first cause of mal *448 formation and failure of the eye to function normally and properly; that this was the condition of the claimant’s right eye on September 22, 1941, when he had the accident resulting in the injury for which he sought compensation; that the evidence adduced on the nature of this accident shows that the claimant was struck upon the nose and upper lip, and that at the time he had on his glasses but they were not broken by the impact of the lick. The director further found that “the superior weight of the medical evidence is that there is no connection between the loss of vision of the right eye of the claimant and the accident; . . that the claimant had the loss of vision in his right eye at the time of the accident, and that the accident had no part in making the vision any worse than it was originally.” The director thereafter found “from the superior weight of the evidence that whatever loss of vision the claimant had in his right eye was pre-existent at the time of the accident and that there is no connection between the loss of vision and the accident.” The director thereupon denied the claimant’s claim for compensation. On January 20, 1942, within due time, the claimant appealed from the award of the director to the superior court of Clayton County, the county in which the claimant was working at the time the accident was sustained. The superior court sustained the appeal and remanded the claim to the Industrial Board for further action. The employer and the insurance carrier excepted to this order and judgment. An award of the Industrial Board as to findings of fact, supported by any competent evidence, is conclusive and binding in the absence of fraud (Code, § 114-710), and, on appeal to the superior court, such award stands on the same footing as the verdict of a jury which is supported by some evidence and which has been approved by the trial judge. It has been repeatedly held by this court and the Supreme Court that such an award can not be set aside by any court. Liberty Mutual Insurance Co. v. Perry, 53 Ga. App. 527 (4) (186 S. E. 576); Employers Liability Assurance Cor. v. Woodward, 53 Ga. App. 778 (2) (187 S. E. 142); Peninsular Life Insurance Co. v. Brand, 57 Ga. App. 526 (196 S. E. 264); Liberty Mutual Insurance Co. v. Holloway, 58 Ga. App. 542 (199 S. E. 334); Milam v. Ford Motor Co., 61 Ga. App. 614, 617 (7 S. E. 2d, 37); Smith v. Fidelity & Casualty Co., 63 Ga. *449 App. 898, 899 (12 S. E. 2d, 366); American Mutual Liability Co. v. Harden, 64 Ga. App. 593 (13 S. E. 2d, 685); Maryland Casualty Co. v. England, 160 Ga. 810 (129 S. E. 75); Thompson-Starrett Co. v. Johnson, 174 Ga. 656 (163 S. E. 745); Maryland Casualty Co. v. Sanders, 182 Ga. 594 (186 S. E. 693). The evidence in the present case was conflicting. In substance, the claimant testified that the loss of vision in his right eye was caused by the injury he received from the lick on his mouth and nose by a chain. Two witnesses, one an optometrist and the other a physician, testified in behalf of the claimant that the lick received by the claimant could have caused loss of vision in his eye. On the other hand, three reputable physicians, two of whom were eye specialists, testified to the effect that they examined the claimant after he received the injury in question, and that there was no connection between that injury and the loss of vision in his eye, and that in their opinion the accident complained of did not cause 'the loss of vision in his eye, but that it was caused by a defective condition of his eye, which had existed for a number of years, and from nonuse of his eye. What weight and credit expert testimony is entitled to is a question for the jury. Rouse v. State, 135 Ga. 227 (69 S. E. 180). In the present case it was for the director of the Industrial Board to determine from the evidence whether the loss of vision in the claimant’s eye was caused by the accident, as contended by the claimant, or whether this was the result of a defective and diseased condition of his eye. In determining this question the director was authorized to accept the expert testimony of the doctors who had examined the claimant and who testified that in their opinion the loss of vision in his eye was not caused by the accident as he contended. United States Casualty Co. v. Matthews, 35 Ga. App. 526, 527 (133 S. E. 875). We are of the opinion that the award of the director of the Industrial Board was supported by some competent evidence, and that the judge of the superior court erred in setting aside the award. In the cases cited by the trial judge in his order, City of Atlanta v. Champe, 66 Ga. 659, 663, and Southern Railway Co. V. Tankersley, 3 Ga. App. 548 (60 S. E. 297), and which are cited and quoted in the dissenting opinion, the jury saw fit to accept the testimony of the plaintiffs in preference to the expert testimony, and, of *450 course, the appellate courts there held there was evidence to support the verdicts and the judgments were affirmed. Had the director of the Industrial Board rendered an award in the present case in favor of the claimant, such an award could have been sustained, as there was some evidence to support such a finding. While that is beside the mark, still the same principle of law is controlling in this case. The director found against the claimant and entered an award denying compensation. There is some competent evidence to support the award, and the courts are without authority to set the award aside. Consequently the judgment must be Reversed. Felton, J., concurs.