26 S.E.2d 679 | Ga. Ct. App. | 1943
An award of the Industrial Board, or an approved agreement, is res judicata as to the cause of the condition that produced the disability of an injured employee for which compensation is awarded or agreed on. On a review of such award or agreement based on an alleged change in the employee's condition, evidence to the effect that the condition of the employee causing the disability was not caused by the accident is incompetent and inadmissible, and a second award decreasing compensation can not be based thereon.
Based on the testimony of the above physician, the single director found that the claimant was suffering from a 25% permanent partial disability as the result of his accidental injury. It is apparent from the reading of the award and findings of the director that his finding was based on the testimony of the physician above quoted. This testimony tended to establish the fact that the claimant's condition on which the first award was based whereby he was totally incapacitated was not the result of the accident sustained by him on December 8, 1939, whereas the award of October 13, *761 1941, from which there was no appeal was based on the finding of the director that the claimant's condition of total incapacity was the result of the accidental injury sustained by him.
The claimant appealed from the award of Director Bruce to the full board where the award was affirmed with one of the directors, namely Director Monroe, dissenting. Thereupon the claimant appealed to the superior court, which court sustained the appeal and reversed and vacated the award of the full board. To this judgment the employer and insurance carrier excepted. The award under review, on exception to the judgment of the superior court vacating the same, was rendered under Code, § 114-709, which provides that on a change in condition of the claimant the Industrial Board may, on its own motion and on the application of any party in interest, review any award of any settlement and on such review may make an award "ending, diminishing or increasing compensation previously awarded or agreed upon." Under this section on an application to review an award based on a change in the condition of the claimant the cause of the claimant's condition and disability on which the original award or agreement was predicated are to be taken as adjudicated by the first award or agreement. Such original award operated as res judicata as to all questions determined therein and can not be disturbed by the Industrial Board, except where it appears from the evidence on the second hearing that since the first award the physical condition and capacity of the claimant for work has changed, increasing, decreasing or ending his disability as the case may be. South v. Indemnity Insurance Co.,
The second award by Director Bruce was not supported by the evidence. His award was based on testimony to the effect that the palsied condition of the claimant had decreased and that his total incapacity no longer existed, but the award of Director Bruce was predicated on the theory that the palsy of the claimant was not caused by a trauma and therefore did not result from his accidental injury but that he did have a partial disability as the result of his accidental injury in that his accidental injury caused hysteria which resulted in a 25% partial impairment of his earning capacity.
The testimony of the physician, above referred to and quoted, to the effect that the claimant was not entitled to compensation for the incapacity caused by his palsied condition was not proper. "An expert may aid the jury, but he can not perform the functions of a juror, and under the guise of giving testimony, state a legal conclusion." See Travelers Insurance Co. v.Thornton,
The ruling here made is not in conflict with Williams v.United States Guaranty Co.,
It follows that the superior court properly held that the award of the board, which affirmed the award of Director Bruce, based on a change in the claimant's condition resulting in a twenty-five per cent. partial disability, was erroneous, and properly vacated and reversed the award of the board.
Judgment affirmed. Sutton and Felton, JJ., concur. *763