8 S.E.2d 547 | Ga. Ct. App. | 1940
1. The judge of the superior court did not err in reversing the award of the Industrial Board allowing compensation and imposing a penalty for failure of the defendant to comply with the Code, § 114-602, as provided in § 114-603.
2. The judge, however, erred in reversing the finding of the board, affirming the award by the director imposing claimant's attorney's fees on the defendant company for not complying with the Code, § 114-602, as provided in § 114-603; and this is true even though no compensation was awarded. The judgment is affirmed in part and reversed in part.
In determining the correctness of the ruling in this case, we must consider four sections of the workmen's compensation act. "When the incapacity to work resulting from an injury is total, the employer shall pay or cause to be paid, as hereinafter provided for, to the employee during such total incapacity a weekly compensation equal to one half of his average wages, but not more than $20 per week nor less than $4 per week, except when the weekly wage is below $4, when the regular wages on the date of the accident shall be the weekly amount paid; and in no case shall the period covered *186 by such compensation be greater than 350 weeks, nor shall the total amount of compensation exceed $7000." Code, § 114-404. "Except as otherwise provided in the next section hereafter, where the incapacity for work resulting from the injury is partial, to the employer shall pay, or cause to be paid, as hereinafter provided, to the injured employee during such incapacity, a weekly compensation equal to one half thedifference between his average weekly wages before the injury andthe average weekly wages which he is able to earn thereafter [italics ours], but not more than $12 a week, and in no case shall the period covered by such compensation be greater than 300 weeks from the date of the injury. In case the partial incapacity begins after a period of total incapacity, the latter period shall be deducted from the maximum period herein allowed for partial incapacity. The total compensation payable shall in no case exceed $5000." § 114-405. "In the cases included by the following schedule the permanent partial industrial handicap in each case shall be compensated by payments for the period specified, and the compensation so paid for such handicap shall be as specified therein and shall be in lieu [italics ours] of all other compensation for the permanent partial handicap. In addition to the compensation provided in the schedule for permanent partial handicap, compensation for total incapacity for work, as provided in section 114-404, shall be paid, but compensation for total incapacity for work shall in no case be paid for a period longer than 10 weeks. . . (1) Loss of a hand, 50 per centum of the average weekly wages during 150 weeks. . . The compensation for partial loss of, or for partial loss of use of, a member [hand] or, for partial loss of vision of an eye, shall be such proportion of the payment above provided for total loss as such partial loss bears to total loss." § 114-406.
In the instant case the claimant received an injury to his hand, which totally incapacitated him for a period of two weeks, and partially incapacitated him for a period of two weeks. The injury did not come within the schedule of injuries in § 114-406; for the injury was not the "loss of a hand," but was an injury to the hand which was cured within ten days after he returned to work. City of Waycross v. Hayes,
During the period of so-called "partial incapacity" which sometimes follows a "total incapacity" defined in § 114-404 (in this case shown by the evidence to be from October 1 to October 10), the claimant, according to his own testimony, received $7 per week (this being the same amount he had received before he was injured); and this court has held: "Except as specifically provided in section 32 of the act [Code, § 114-406], such partial incapacity terminates when the employee again becomes capable of earning the same wage he earned before his injury, whether at the same or at a different occupation, and without regard to such personal inconveniences as may result to him solely from his injury and which are not caused or aggravated by his new employment." Austin Bridge Co. v. Whitmire,
However, under the rulings in Elliott Addressing Machine Co.
v. Howard,
Judgment affirmed, with direction. Broyles, C. J., andGuerry, J., concur.