McCaslin v. Heath

8 S.W.2d 362 | Tenn. | 1928

The petitioner sued under the Workmen's Compensation Act alleging loss of the use of a leg due to injury on January 10, 1927, in the course of his employment at defendants' saw mill. The defendants demurred and the petition was dismissed. The petitioner appealed and has assigned errors.

It appears from the petition that in a former proceeding in the County Court the petitioner was awarded hospital and surgical bills and compensation of $5 a week for ten weeks dating from January 10, 1927. The defendants appealed from the judgment of the County Court to the Circuit Court, but dismissed their appeal and paid the award which petitioner accepted. It is recited in the petition, "that petitioner agreed to the compensation of $5 a week which was adjusted as above stated, and as an addition he was awarded surgical and hospital fees." This is followed by the statement that the award was intended to compensate for disability prior to and not after the award. Petitioner seeks additional compensation upon the allegation that the disability, upon which the original claim was based, continued after expiration of the ten weeks period for which the Court allowed compensation in the other proceeding.

Section 38-b, of the Compensation Act, which provides for modification of an award on the ground of increase or decrease of incapacity does not authorize this action. By the judgment of the Court, at a hearing upon evidence, petitioner was awarded compensation of $5 a week for ten weeks. That settlement was final. Section 37 of the Compensation Act provides:

"That all settlements of compensation by agreement of the parties and all awards of compensation made by the Court, where the amount paid or to be paid in settlement or by award does not exceed the compensation for six months' disability, shall be final and not subject to readjustment."

Wilkerson v. Shale Brick Co., 156 Tenn. 373, relied on by petitioner is not controlling. In that case a settlement alleged to have been made with the employee in conformity with Section 27 of the Act, was pleaded by the employer in bar. The defense was of no avail because the settlement was not approved and judgment rendered thereon as provided in Section 27 of the Compensation Act, Chapter 123, Acts of 1919.

We find no error in the action of the trial Court in sustaining the demurrer. Affirmed.