Metropolitan Casualty Insurance v. Owen

Stephens, J. 1. This was an appeal from an award of compensation made by the industrial commission upon an application for compensation based on a change in condition, and it appearing from the evidence adduced on the hearing before the commission that the claimant had suffered a partial disability due to an accident causing a hernia and for which he had been awarded compensation, that since the hearing upon which the first award was made and before the hearing on the second application, the condition of the claimant had changed and his physical condition had become worse, and that although he had performed some labor before the first award, he afterwards became unable to work, the inference is authorized that the claimant had suffered a change in condition; and although there was evidence in the testimony of physicians upon the second hearing that the claimant could work and that his capacity for work had been only partially impaired, there was evidence that the claimant had, since the first award, suffered a recurring hernia and severer and additional pains on account of the injury, and which had recurred more often, and that by reason thereof he could not hold out to work and could not do anything, and was not able to work and could not obtain work because fie was unable to work. The inference is authorized that the claimant had suffered a total incapacity for work, and the finding of the commission awarding compensation for a total disability was authorized. By an application of the rules laid down in Travelers Ins. Co. v. Hurt, 176 Ga. 153 (167 S. E. 175), and General Accident &c. Co. v. McDaniel, 44 Ga. App. 40 (160 S. E. 554), the finding of the commission making the award, is authorized. The appeal from the award raises only the contentions that the industrial commission acted in excess of its powers, that the facts found by the commission did not support the award, that the evidence was insufficient to support the award, that the award is contrary to law, and that the evidence demanded a finding that the claimant was not totally disabled. No exception is taken to the form of the award, or to the finding of the commission on the ground that the commission did not find that the claimant’s incapacity for work was due to his physical disability to work. See Ragland v. State, 111 Ga. 211 (36 S. E. 682) ; Newberry v. Tenant, 121 Ga. 561 (49 S. E. 621) ; Callaway v. Atlanta, 6 Ga. App. 354 (2) (64 S. E. 1105) ; Empire Cotton Oil Co. v. Continental Gin Co., 21 Ga. App. 16, 18 (93 S. E. 525). [628] Decided February 25, 1933. Adhered to on rehearing, March 4, 1933. McDaniel, Neely & Marshall, Harry L. Greene, for plaintiffs in error. Branch & Howard, Thomas B. Branch Jr., contra. 2. The superior court did not err in affirming the award of the commission. Judgment affirmed. Jenkins, P. J., and Sutton, J., concur.