103 Ga. App. 171 | Ga. Ct. App. | 1961
The only question before this court is whether or not a claimant under workmen’s compensation is required to or may accept the benefits of a portion of an award while the award is on appeal without estopping himself from pursuing his appeal. The defendants in support of their contention that estoppel does operate as against the plaintiff •under these facts, cite Coley v. Coley, 128 Ga. 654, 655 (58 S. E. 205); Owens v. Read Phosphate Co., 115 Ga. 768 (42 S. E. 62); Stallings v. Shell Petroleum Corp., 54 Ga. App. 359 (188 S. E. 50); and Kent v. U. S. Fidelity &c. Co., 54 Ga. App. 400 (1, 2) (187 S. E. 887). These cases hold that a plaintiff is not entitled to collect a judgment on one count and at the same time maintain exceptions to another count, or accept a judgment in part and reject it in part. The instant case, however, is distinguishable from those cited by the defendants by virtue of governing workmen’s compensation statutes. Code § 114-412 provides: . . All hernia ... so proven to be the result of an injury by accident arising out of and in the course of the employment, shall be treated in a surgical manner by radical operation. . . In case the injured employee refuses to undergo the radical operation for the cure of said hernia, no compensation shall be allowed during the time such refusal continues.” Code Ann. § 114-501 provides: “The refusal of the employee to accept any
The court did not err in recommitting the case to the State Board of Workmen’s Compensation for the purpose of taking additional testimony for the reason that the State Board of Workmen’s Compensation is without authority to determine in advance whether the operation would be successful or that disability would cease by July 7.
Judgment affirmed.