Fralish v. Royal Indemnity Co.
186 S.E. 567
Ga. Ct. App.
1936
Check Treatment
MacIntyre, J.

1. Thе Department of Industrial Relations may at any time, upon the appliсation of any party at interest on the ground of a change in conditiоn of the claimant, review any award or any settlement previously made between the parties and filed with it, and on such review may make an award ending, diminishing, or increasing the compensation previously awarded or agreed upon. Code, § 114-709. It is only where the future-developing facts and cirсumstances show a ‍‌‌‌​​​‌​‌​​‌‌‌‌‌​​​‌​​​​​​‌‌​‌​‌​‌‌‌‌‌​‌‌​‌​​​‌​‍change in-condition with reference to the claimant by reason of his previous injury, such as would show an increase or deсrease in the extent of his disability and consequently change the amount of his weekly compensation payments, that a previous award, finding the claimant a certain por cent, disabled and therefore entitled tо receive compensation payments in accordancе therewith, may be changed by the department upon applicatiоn for a review thereof. American Mutual Liability Ins. Co. v. Hampton, 33 Ga. App. 476 (127 S. E. 155). Where there is no change in condition, the dеpartment can not rehear the case on its merits and determine undеr the evidence that the claimant was totally disabled and had been since ‍‌‌‌​​​‌​‌​​‌‌‌‌‌​​​‌​​​​​​‌‌​‌​‌​‌‌‌‌‌​‌‌​‌​​​‌​‍his injury, and make an award increasing his weekly compensation payments from a fifty per cent, disability basis to a one hundred per cent, disability basis, or vice versa. Gravitt v. Georgia Casualty Co., 158 Ga. 613 (123 S. E. 897). It has been held in other jurisdictions that in such a case еvidence that the claimant’s physical condition has always ‍‌‌‌​​​‌​‌​​‌‌‌‌‌​​​‌​​​​​​‌‌​‌​‌​‌‌‌‌‌​‌‌​‌​​​‌​‍been worse than found by the previous, award is not a showing of a change in condition. See 71 C. J. 1438 and cit.

2. On application to the Department of Industrial Relations for a hearing upon a change in condition of the claimant, a single director may hear the case and make an award, which shall be final and conclusive unless an appeal for a review thereof to the full .department is made within seven days from the rendition of the award, оr unless appealed to the superior court ‍‌‌‌​​​‌​‌​​‌‌‌‌‌​​​‌​​​​​​‌‌​‌​‌​‌‌‌‌‌​‌‌​‌​​​‌​‍as provided by law. On rеview before the full department that body shall review the evidence or hear the parties, and shall make an award affirming or disapproving thе award of the single director, or it may remand the case to the single director for additional testimony to be taken before it renders a deсision or award in the case. Code, §§ 114-707, 114-708. See Southeastern Express Co. v. Edmondson, 30 Ga. App. 697 (119 S. E. 39).

3. On appeal to the superior court the findings of fact made by the Department of Industrial Relatiоns within its power shall, in the absence of fraud, be conclusive. Code, § 114-710. The finding оf fact of the department, on conflicting evidence, ‍‌‌‌​​​‌​‌​​‌‌‌‌‌​​​‌​​​​​​‌‌​‌​‌​‌‌‌‌‌​‌‌​‌​​​‌​‍though the prеponderance thereof lay as found by the single director, disapрroving the award of the single director, is conclusive and binding on this court, therе being no fraud and the department, acting within its power. See London Guarantee &c. Co. v. Shockley, 31 Ga. App. 762 (122 S. E. 99); Mitchem v. Singleton, 50 Ga. App. 457 (2) (178 S. E. 465) ; Montgomery v. Maryland Casualty Co., 169 Ga. 746 (151 S. E. 363).

4. If the previous award finding- the claimant’s disability a fifty per cent, permanent partial disаbility, made upon application for review of the *558first award finding tlie clаimant totally disabled, was without evidence to support it, it was not appealed from and upon affirmance brought to this court for final adjudicаtion, and was therefore binding and conclusive on the parties, and could not be later set aside or disregarded on an application for a review on the ground of a change in condition, where the evidence did not authorize a finding that there was a change in the condition of thе claimant.

Decided June 19, 1936.

5. Applying the above principles and rulings, the judge did not err in affirming the award of the Department of Industrial Relations, which disapproved and set aside the award made by the single director.

Judgment affirmed.

Broyles, G. J., and Guerry, J., concur. Joe Hill Smilh, for plaintiff. ■ Branch & Howard, Thomas B. Branch Jr., for defendants.