Carden v. Arrow Co.

Carley, Chief Judge. After appellant-employee complained of a rash, hair loss and nervousness, appellee-employer initiated the payment of workers’ compensation benefits. A physician’s attempt to conduct a medical test to determine the cause of appellant’s condition was unsuccessful. An attempt to conduct a second medical test was thwarted. A third test succeeded and formed the basis of the physician’s medical opinion that appellant’s condition was not work-related. By this time, however, five months had passed since the initiation of benefits. Appellee filed its notice to controvert based on “newly discovered [540] evidence.” See OCGA § 34-9-221 (h). The administrative law judge (ALJ) found that the result of the third medical test was “newly discovered evidence” which authorized the suspension of benefits. The Full Board adopted the ALJ’s findings of fact and conclusions of law. The superior court affirmed. Appellant brings this appeal pursuant to this court’s grant of her application for discretionary appeal. Decided October 18, 1989 Rehearing denied November 15, 1989 Murphy, Murphy & Garner, Stephen E. Garner, for appellant. Wilson, Strickland & Benson, Warner R. Wilson, Jr., L. Lou Allen, for appellee. 1. Appellant urges that appellee failed to show that the “newly discovered evidence” was not merely impeaching. The record shows, however, that, prior to completion of the third test, the physician had given no opinion as to whether appellant’s condition was work-related. Since causation was unclear, appellee was apparently motivated to commence the payment of benefits by the possibility that it might incur penalties under the statutory scheme if it did not. The physician’s subsequent clear opinion as to causation was not inconsistent with and impeaching of his previous lack of any opinion. See Georgia Power Co. v. Pinson, 167 Ga. App. 90, 92 (1) (305 SE2d 887) (1983). 2. Appellant also urges that the “newly discovered evidence” could have been obtained sooner had appellee acted with due diligence. However, the Full Board found that appellee had acted with due diligence and this finding was authorized by the evidence. See generally Georgia Power Co. v. Pinson, supra at 93 (1); Carpet Transport v. Pittman, 187 Ga. App. 463, 468 (2) (370 SE2d 651) (1988). Judgment affirmed. McMurray, P. J., and Beasley, J., concur.