Blackwell v. Liberty Mutual Insurance

Stolz, Judge.

This, is an appeal from the superior court’s judgment reversing the award of the deputy director of the State Board of Workmen’s Compensation, who found that the claimant’s continued employment since his original injury arising out of and in the course of the employment in 1965, aggravated his condition, so that his claim *147filed in 1971 was not barred by the one-year limitation in Code § 114-305.

The award was based on the theory set forth in National Union Fire Ins. Co. v. Johnston, 122 Ga. App. 332 (3) (177 SE2d 125) and cit. The only evidence adduced at the hearing on this point was that, except for one week after the claimant’s original knee injury, he worked up until approximately a month before the hearing, although his leg swelled up periodically and he consulted three doctors during this time.

While the award was based on the theory set forth in National Union Fire Ins. Co. v. Johnston, supra, and citations, it differs materially from such cases. In those cases the records disclose facts upon which aggravation may be found, either in the form of job description, nature of employment, direct evidence from the claimant, his medical witnesses, or a specific job-connected incident. These holdings are correct. However, in the instant case there simply is no evidence which brings this case within these holdings.

The claimant’s testimony showed that he was "steam cleaning” when the original injury occurred. The record is silent as to what this entails in the way of physical activity. The claimant concluded his testimony by stating that when he terminated his employment he "was doing anything they’d tell me to do.” It is silent as to the nature of the claimant’s employment in between such times. The claimant affirmatively stated that he did not have another accident in between the first one (1965) and the time of his surgery (1971) and that his knee "just kept on hurting.” No medical evidence was offered. The claimant did not testify or offer any testimony that his continued work after the original injury had any effect on the injured knee.

Under the circumstances, the case does not fall under the rules stated in National Union Fire Ins. Co. v. Johnston, 122 Ga. App. 332, supra. The Superior Court of Fulton County was correct in holding the claim to be barred by the statute of limitation.

Submitted April 3, 1972 Decided September 6, 1972 Rehearing denied September 27, 1972 William L. Skinner, for appellant. Greene, Buckley, DeRieux & Jones, Alfred B. Adams, III, for appellees.

Judgment affirmed.

Bell, C. J., Hall, P. J., Eberhardt, P. J., and Clark, J., concur. Pannell, Deen, Quillian and Evans, JJ., dissent.