146 Ga. App. 175 | Ga. Ct. App. | 1978
In this workmen’s compensation case, we affirm the superior court judgment remanding the case to the board of workmen’s compensation for further consideration, there being a valid statutory reason for the remand.
In 1972, Phinazee, the claimant, was injured while working for the Mouchet Corporation. Phinazee, Mouchet, and Mouchet’s insurance carrier, Boston Old Colony, entered into an agreement in which Phinazee would receive compensation for a total disability. A subsequent agreement among the parties effected a change in Phinazee’s condition from total to partial disability and reduced payments accordingly. In March, 1975, Phinazee filed a claim for change of condition back to total disability, but the administrative law judge hearing the case found no change from partial disability; the award was not appealed. A new change of condition hearing was requested and was held in June, 1976. At this second hearing the administrative law judge found that there had been no change in condition since the earlier (March, 1975) hearing. Phinazee then appealed this decision to the full board of workmen’s compensation. The board treated the unappealed 1975 award as res judicata on the issue of whether, up until that date, Phinazee’s disability had degenerated from partial to total. However, on de novo review of the facts, the board, disagreeing with the hearing judge as to whether there had been a change of condition since that earlier hearing, concluded that Phinazee’s disability had become total subsequent to the March, 1975, hearing.
The employer and its insurer appealed the board’s award, and the superior court remanded the case back to the board for the reason that the board had based its decision on an erroneous legal theory, and also for the purpose of taking additional evidence concerning whether Phinazee had fraudulently concealed a pre-existing injury which may have led to her disability. Phinazee has now appealed to this court. Held:
1. The first enumeration complains that the
2. The superior court stated, as an alternative reason for its remand, that the board should take further evidence to determine whether the claimant had fraudulently concealed a pre-existing injury. Code § 114-710 (2) authorizes the superior court to set aside the order of the board if "[t]he order or decree was procured by fraud.” The Code gives no guidance as to how convincing any evidence of fraud must be, but § 114-710 does state, "Upon the setting aside of any such order, decree, or decision of the board, the court may recommit the controversy to the board for further hearing or proceeding in conformity with the judgment and opinion of the court, or such court may enter the proper judgment upon the findings, as the nature of the case may demand.” In this case, competent evidence raises a reasonable suspicion that there may have been fraudulent concealment; yet that evidence is by no means conclusive. Under the above
Judgment affirmed.