12 S.E.2d 355 | Ga. | 1940
Lead Opinion
Where the award of the Industrial Board denies compensation, the employee, after the expiration of the time for appeal from such award, is not entitled to make application for a review on the ground of a change in condition, under the Code, § 114-709. This rule is not altered by the fact that the order of the board on the original hearing shows that compensation was denied solely on the ground that the disability resulting from accidental injury existed for a period of time less than seven days, which is the minimum period of time for which the statute authorizes compensation, except medical aid as provided in § 114-501.
To make an award either allowing or disallowing compensation, aside from medical aid as provided in section 114-501, the Industrial Board must under the law determine the preliminary questions whether or not there was an accidental injury resulting in disability for more than seven days, and whether or not it arose out of and in the course of employment. If these preliminary questions are decided in the affirmative, then the employee is entitled to compensation in some amount. On the other hand, a negative decision on any one of these facts requires an award denying compensation. The only award that the Industrial Board has the power under the law to make is either to deny or to grant compensation. No authority is to be found anywhere for the board to make an award simply finding that disability does or does not exist. Any award that does not deal with the question of compensation is a legal nullity, and can not be styled either for or against any one. We have seen that the ruling of the board in the present case to the effect that disability did not exist for a period of time to be compensable could not have been appealed from by the employer; and certainly it can not be held that the employer would be bound by an adverse ruling, and at the same time be denied the right of appeal.
This question is of vital importance, and we believe an examination of the unambiguous statute will remove uncertainties and prevent future confusion. If the statute is clear and unambiguous, no court has a right to construe it to mean other than what it declares. Neal v. Moultrie,
An award denying compensation is an award granting to the employee precisely nothing, and despite any attempt to end, diminish, or increase it, it will remain the same nothing. To propose making a new award allowing compensation on review, by suggesting that something added to nothing would constitute "increasing," is to juggle with words and ignore the inescapable fact that nothing remains nothing always. The legislature having clearly stated what could be done on such review, and there being nothing that the board could lawfully do in the present case, a review would be meaningless. Since there was no "compensation previously awarded or agreed upon," manifestly the board could not have ended, decreased, or increased something that had never existed. An award *339
by the board denying compensation, after the expiration of the time in which same can be appealed from, stands as an absolute legal bar to any action either on motion of the board or on application of interested parties under the Code, § 114-709. In its opinion the Court of Appeals cited Home Accident InsuranceCo. v. McNair,
Judgment reversed. All the Justices concur, except Bell andJenkins, JJ., who dissent.
Dissenting Opinion
The Code, § 114-709, as amended, provides as follows: "Review of award or settlement on motion ofboard or because of change in condition; award. — 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 Industrial Board may, within two years from the date that the board is notified of the final payment of claim, review any award or settlement made between the parties and filed with the board 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 *340
shall immediately send to the parties a copy of the award. No such review shall affect such award as regards any moneys paid." Ga. L. 1937, pp. 528, 534. It is my opinion that the case under discussion is, as held by the Court of Appeals, distinguishable under its facts from the case of AEtna Life Insurance Co. v.Davis,
It was held by this court, in Home Accident Insurance Co. v.McNair,
It is said, however, that the original judgment, adverse to the employer in all respects save as to the necessary continuance of the injury as it then appeared, can not form the basis of a subsequent review by reason of a change in condition, for the reason that the employer could not have appealed from the original adjudications which were adverse to him. In the first place, it does not appear that the statute makes the right of appeal from the original award a condition precedent to the right of review. But aside from this, and even assuming that such be the case, would it not be more in consonance with a liberal construction of the statute, including the invaluable right of review conferred, to treat the original judgment in favor of the workman on all questions other than the condition of the injury as a continuing judgment, final as against the employer so as to cut off an appeal only upon the actual allowance of compensation after subsequent proof of a change of condition on review, rather than to utterly destroy the explicit right of review plainly conferred? It would not seem, however, that the employer would have to thus treat the original judgment as a continuing one, awaiting the final award of compensation, in order to avail himself of the right of appeal. As recognized in the majority opinion, in *342 order to make an award either allowing or disallowing compensation, the Industrial Board must under the law determine the preliminary question whether or not there was an accidental injury, and whether or not it arose out of and in the course of the employment. The workmen's compensation statute seems in one respect to be sui generis. Ordinarily, judgments unappealed from are res adjudicata upon all issues decided. Under the provisions of this particular statute, however, this is true only as respects the preliminary adjudications, whereas the finding relative to the extent of the injury is left open to future inquiry on a subsequent review. Since this is true, and since the sole purpose of Code § 114-709 is to expressly confer this right of review upon the solitary issue of a change in condition, and since all other unadjusted issues have become res adjudicata, can it be said that the original adjudications on these preliminary questions are merely "advisory opinions?" As to whether the accident did or did not arise out of and in the course of the employment, may, as it often does, constitute one of the main vital and contested issues. Where the commissioner adjudicates this issue in favor of the workman, but further finds that the limited duration of the injury as it then appeared did not authorize compensation, this amounts to an adverse adjudication against the employer, setting up and establishing a contingent liability, subject to be converted into actual, present liability by thereafter merely showing the necessary change in condition of the injury. As to all other questions, he is helpless to defend. This being true, upon the rendition of such original adverse judgment, can it really be said that the employer "had suffered no injury" thereby, and for that reason should be denied an immediate appeal from such judgment, even though, if the right of appeal be denied, the adverse judgment upon all such vital issues became absolutely fixed? To say that such an adverse holding on such vital preliminary issues is not "injurious" to the employer, would seem to really "beg the question" we are in fact considering. Of course, if there be no injury, there can be no appeal; but the question as to whether there is an injury constitutes the problem. If we simply take the statute to mean what it says when it provides for a review on account of a change in condition, and if we concede, as this court has held, that all other preliminary questions decided on the original hearing became res adjudicata, it would seem injurious indeed for an employer, if deprived *343 of his right of appeal on such adjudication, to thereafter stand stripped of every possible right of defense with respect thereto. To deny the right of appeal on the theory that the adverse judgment is not injurious, would be to fail to take into account that under the provisions of the statute, permitting a future review on the question of a change in condition, such preliminary adjudications, adverse to the employer, amount to making him the outright insurer of the employee upon the required change in condition being shown. It would seem, therefore, that any one of the three constructions which have been mentioned, relative to the right of appeal as affecting the right of review, would be preferable to simply reading out of the statute the right of review in a case of this kind.
The ruling in the majority opinion has been well and forcefully presented. It is urged that under the statute the only judgment which is authorized on review is one which would either end, diminish, or increase the compensation previously awarded, with the result that, where the previous judgment failed to allow any compensation at all; there is nothing to end, diminish, or increase. It appears that this is really the main controlling basis on which the majority opinion is grounded, since, after quoting the first portion of Code § 114-709, the court says: "Thus far, apparently the purpose of the statute is to keep open the question of the extent of disability, in order that either party may later have that question reexamined for the protection of their respective rights. But the statute does not stop here; and under the well-recognized rule of construction applicable alike to statutes and contracts, they must be construed as a whole, and the law will not sanction a construction of a isolated portion apart from the whole." That the statute is beneficent in character, and should be liberally construed in favor of the workman, has been many times declared by this court and by practically all the courts. In "construing the statute as a whole," must precedence be given to what might perhaps seem restrictive language in dealing with the mere form of thejudgment to be entered on review, over and above the express language of the statute creating the substantive right to review "any" award on the ground of a change in condition? It seems true enough that, in framing the statute with respect to the mere form of the order, a previous award of compensation might have been in mind; but must the plain and specific right to review "any" award on account *344 of a change of condition be nullified merely because the statute in going through the useless procedure of setting forth a form of judgment may have used words which might not seem strictly and technically comprehensive as to the scope of every possible rendition? It is not even certain that this purely formal portion of the statute, as distinguished from the substantive right to review any award, so plainly and clearly set forth, could even by the strictest of strict constructions be taken to eliminate by indirection all right of compensation in a case where none had been bestowed in the original judgment. Nothing multiplied by nothing equals nothing; nothing subtracted from nothing equals nothing; but something added to nothing amounts to an increase. At least, to hold otherwise would not be a liberal construction, but would be to strain the etymological and generic sense of words to the n-th power. Where, as in this case, the board enters a judgment in favor of a workman upon each and every essential element save the requisite duration of the injury, it would ordinarily award doctor's bill and hospital expense. In this particular case there happened to be none. It adjudicated all the facts and rendered res adjudicata every element of the case except that one element which the law says remains open to future inquiry. In such a case, if merely because there was no doctor's bill or hospital expense to award, and because of such fact and because the injury under its then condition had not continued for the minimum period, no compensation was allowed, must we write out of the statute the plain, clear, and unequivocal provision allowing a future review under changed conditions of the injury, merely because, in dealing with the formal portion of the statute relating to the language of the new judgment, the word "increase" was used instead of some other word carrying a more accurate generic import?
Moreover, even if language relating to the mere form of the judgment should be given precedence and be taken to override and annual the plainly conferred substantive right of review upon a change of condition, and even if it were to be assumed that the technical connotation of the words, end, diminish, and increase, are not, strictly speaking, comprehensive enough to include expressly a new judgment allowing compensation where none had been previously awarded, it does not seem, even then, that the statute purports to limit the form of the judgment by excluding any other *345
possible form which might be appropriate to the evidence adduced on a review which has been expressly authorized. As to the form of the judgment, the statute simply says that on such a review the board "may" enter an award "ending, diminishing, or increasing the compensation previously awarded." While they "may" do this, the statute does not forbid any other or additional form of award which the evidence might authorize or require. The word "may" ordinarily denotes permission and not command, except when used in a statute where the public interest is concerned, in which case it will be construed to mean "must" or "shall." Code, § 102-103; 26 Words Phrases, 762. The question here is not whether the word "may" is used in a permissive or peremptory sense, since the statute most assuredly does command and require that a new judgment shall be entered on review. The real and only question then is whether the use of this language, including the word "may," with respect to the form of the judgment is permissive or restrictive in character. Does it not only mean that the board "may" enter a new award, ending, diminishing, or increasing the old award, but must it also be taken to plainly and definitely exclude by implication any other form of judgment which might be appropriate under the evidence adduced at the authorized review? If such a strict and rigid construction could be arrived at, it could be done only by application of the maxim,expressio unius est exclusio alterius. This maxim has its proper place, but should not be applied to overthrow in part the manifest purpose and intent of a beneficent statute which it is our duty to construe liberally in favor of a workman on the authorized review of his claim for compensation. The proper application of the maxim is to arrive at the intent of the lawmaking body — not by indirection to restrict its manifest purpose. Thus, Broom's Legal Maxims (9th ed.), 421, has this to say: "Great caution is necessary in dealing with the maximexpressio unius est exclusio alterius; for, as Lord Campbell observed in Saunders v. Evans [8 H. L. Cas. 721, at p. 729], it is not of universal application, but depends upon the intention of the party as discoverable upon the face of the instrument or of the transaction; thus, where general words are used in a written instrument, it is necessary, in the first instance, to determine whether those general words are intended to exclude other matters besides such as are specifically mentioned, or to be referable exclusively *346
to them, in which latter case only can the above maxim be properly applied. Where, moreover, an expression, which is prima facie a word of qualification, is introduced, the true meaning of the word can only be ascertained by an examination of the entire instrument, reference being had to those ordinary rules of construction to which we have already adverted." Later (p. 427), this authority states: "A statute is to be so construed, if possible, as to give sense and meaning to every part; and the maxim expressio unius est exclusio alterius was never more applicable than when applied to the interpretation of a statute. . . Thus it sometimes happens that in a statute, the language of which may fairly comprehend many different cases, some only of those cases are expressly mentioned by way of example merely, and not as excluding others of a similar nature." In Ga., Fla. Ala. Ry. Co. v. Sasser,
That no such restricted import was in the minds of the legislature would seem to be apparent, if we suppose that on the original hearing some compensation had in fact been allowed, and if we suppose that on a subsequent review, on account of alleged change in condition, the board should find that there had in fact been no change in condition. In such a case, what would be the new award, governing future compensation, which the statute requires to be entered in lieu of the old award? According to the argument, the hands of the board would be tied. It must enter a new award and serve copies thereof on the parties; but under the strict, rigid, and stringent meaning of the statute now insisted upon as limiting the form of the award, it could not enter any judgment at all, for the reason that it could neither end, diminish, or increase the old award. Let us suppose another case, to illustrate the fact that the legislature could not have had in mind any purpose to thus rigidly and by implication exclude any judgment on review except one where compensation had been previously awarded. Suppose a case where compensation had been awarded. Let us then suppose that after the award of compensation the disability of the employee temporarily ceased, and that the employer obtained a judgment on review ending the compensation. Let us then suppose that thereafter, during the period of limitation, the disability returned, it is reasonable to suppose that the legislature intended by such indirect language to prevent the employee from then coming before the board and showing the new, changed condition, whereby he would be entitled to compensation? If the strained construction as contended be correct, *348
the statute does not mean what it says when it provides that within the stated period either the employer or the employee can be heard on review because of a change in the condition of the injury. See, in this connection, Ware v. Swift Co.,
Justice BELL concurs in this dissenting opinion.