11 S.E.2d 499 | Ga. Ct. App. | 1940
Where an award for permanent partial disability has been made to an injured employee under the workmen's compensation act, the pendency in this court of an appeal from the judgment of the superior court affirming an award of the Industrial Board, denying an increase in compensation on account of an alleged change in condition since the former award, does not deprive the Industrial Board of jurisdiction to entertain another application from the claimant for additional compensation on account of a change in condition arising since the hearing upon which the award appealed from was based.
The Code, § 114-710, provides in part as follows: "Any party in interest who is aggrieved by a judgment entered by the superior court upon an appeal from an order or decree of the department [then the Department of Industrial Relations, now the Industrial Board] to the superior court, may have the same reviewed by the Court of Appeals within the time and in the manner provided by law for fast bills of exceptions from other orders, judgments, and decrees of the superior court. In case of an appeal from the decision of the department, said appeal shall operate as a supersedeas, if the employer has complied with the provisions of this title respecting insurance, and no such employer shall be required to *495
make payment of the award involved in the questions made in the case so appealed, until such questions at issue therein shall have been fully determined in accordance with the provisions of this title." As to the effect of a supersedeas it was ruled in Campbell v. Gormley,
However, the application of the claimant, dated November 22, 1939, for increased compensation on account of an alleged change in condition arising since the hearing, on January 24, 1939, of a previous application for increased compensation on account of an alleged change in condition, did not require of the Industrial Board any exercise of jurisdiction with respect to the right of the claimant as determined adversely to him by the director on February 16, 1939, which award was affirmed by the board on March 30, 1939, and which award of the board was affirmed by the superior court on November 17, 1939. The question raised in the application of *496
the claimant on November 22, 1939, was whether or not there had been a change in condition since the hearing on January 24, 1939, and on which the award of the director on February 16, 1939, was based. The claimant had the right to apply for increased compensation on account of a change in condition since the hearing on January 24, 1939. The Code, § 114-709, provides: "Upon their own motion before judicial determination or upon the application of any party in interest on the ground of a change in condition, the Department of Industrial Relations may at any time review any award or any settlement made between the parties and filed with the department and, on such review, may make an award ending, diminishing or increasing the compensation previously awarded or agreed upon, subject to the maximum or minimum provided in this title, and shall immediately send to the parties a copy of the award. No such review shall affect such award as regards any moneys paid." However, by the act of 1937 (Ga. L. 1937, pp. 528, 534) this section was amended by striking therefrom the words "at any time" and substituting therefor the words "within two years from the date that the Department of Industrial Relations is notified of the final payment of a claim." The investigation by the board would, of course, be limited to evidence as to a change in condition since the hearing on which the former award was based. "An appeal for review upon the ground of such change [in condition] presents a quasi-new case although it is not a new proceeding, and it is the duty of the commission to examine into it, if the matter sought to be reviewed has not been judicially determined, or become res adjudicata, and if the commission still has jurisdiction of the subject-matter." Globe IndemnityCo. v. Lankford,
Judgment reversed. Stephens, P. J., and Felton, J.,concur.