103 Ga. App. 607 | Ga. Ct. App. | 1961
Lead Opinion
It is to be noted particularly in this case that the purpose of the hearing as stated by the-notice of hearing sent by the State Board of Workmen’s Compensation was “to determine extent of disability.” The hearing was set at the request of the attorney for the claimant.
The defendant vigorously contends that since an agreement for payment of compensation had been filed with and approved by the State Board of Workmen’s Compensation on January 29, 1959, the agreement as approved is binding on the parties in the absence of fraud, accident, or mistake, and cites Rourke v. U. S. Fidelity &c. Co., 187 Ga. 636 (1 S. E. 2d 728), and
The issue is thus raised as to whether, where the hearing is designated as being for the purpose of determining the extent of disability, the State Board of Workmen’s Compensation can change an award based on the prior agreement of the parties as previously approved by the board.
Code Ann. § 114-706 provides in part that hearings regarding disagreements between the employer and the injured employee or his dependents may be held when there is a failure to reach an agreement in regard to compensation under the act, or when they have reached an agreement which has been signed and filed with the State Board of Workmen’s Compensation and the parties thereafter disagree as to the continuance of any weekly payment under the agreement. This court has held, however, that this section must be construed in pari materia with other sections of the act and particularly with Section 114-709, and thus Section 114-706 does not authorize the reopening of a case in which an agreement has been approved by the board, but only applies to
The evidence brought out at the hearing in the present case would authorize the board to find, as it did find, that the claimant voluntarily departed from his employment after the doctor recommended that he leave. It was further found that the claimant had to change to light work as a result of the injury which occurred to him and which arose out of and in the course of his employment with the Columbus Spring Service, and that his diminished earnings were due to the impairment of his physical condition. The doctor’s testimony was that after the claimant was dismissed as a patient on April 13, 1959, his condition had stabilized and there had been no change in his condition. The finding of the board that the claimant as a result of the injury had changed to light work from the heavy Work he had previously engaged in is justified by the evidence offered at the hearing..
Under these circumstances, the question arises as to whether this conclusion by the board constitutes a finding of change in condition as authorized under Code § 114-709. The evidence indicated that, after the injury, the employee resumed his former work at the same or higher earnings during a period of five months, but that during this period he was constantly in pain and that he quit because of the doctor’s advice which, inter alia, was that if he continued in the same heavy work his disability would be possibly increased to the point of bringing about a thrombosis and a blockage of the blood vessel even to the point of gangrene.
We think that where, as here, an employee with commendable conscientiousness and determination has endeavored for a period of some months to carry on in his prior employment but is prevented from doing so by a previous injury which arose out of and in iihe course of his employment, he should not be held to
As we view the findings of the board, there is in effect a determination by it that there has been a change in the condition of the claimant since it found that he was no longer able to continue in his former employment and, therefore, had to take less strenuous employment at a reduced wage. We further conclude that under the notice issued by the board of a hearing to determine the extent of disability, the board may, where the evidence authorizes it, change the award previously mafie from total disability under Code § 114-404 to' an award for partial incapacity under Code § 114-405. See Williamson v. Aetna Cas. &c. Co., 101 Ga. App. 220, 224 (113 S. E. 2d 208). Under numerous decisions of the appellate courts of the State, as well as by the express terms of the statute, the Workmen’s Compensation Act, in order to further its beneficent purposes, is to be liberally construed. Properly viewed, the hearing in this case, subject to the notice given, was in effect a hearing to determine a change in condition, and the evidence authorized the finding of such a change.
We cannot agree with the contention of the plaintiff in error that Code § 114-407 applies to and controls the situation here. In substance, this Code section provides that if an injured employee refuses employment secured for him suitable for his capacity, he shall not be entitled to any compensation at any time during the continuance of the refusal.
The testimony of the employee was in effect that he was not offered light work suitable to his capacity, but that he had been offered “lighter spring work but the doctor told me no spring work.” The finding of the deputy director contains a recitation that the employer offered the claimant a bonus of $500 per year and a helper if he would remain in his employment. The director found, however, that none of this came about until the claimant had made arrangements for another job and had begun to have difficulty with his shoulders and arm after returning to his employment.
As we interpret the finding in this case, the State Board of
The agreement approved by the board recites that the plaintiff was to receive compensation at a stipulated rate payable weekly from the date specified until termination, in accordance with the provisions of the Workmen’s Compensation Act. Another portion of the agreement recites that the probable length of disability is undetermined. We think that where an agreement, between the employer and the employee and/or insurance carrier, relates that the probable length of disability is undetermined, an award of the State Board of Workmen’s Compensation based on the agreement is indefinite and indeterminate. It necessarily follows that, in order to accord the required liberal interpretive effect to the workmen’s compensation statutes, the award is subject to modification by the board at a subsequent hearing for the purpose of “determining the extent of disability.” Where the board holds such a hearing and the evidence supports.a finding that the employee is no longer totally disabled, the board has authority to make an award for partial incapacity to work based on the diminished earnings where the employee is being paid for lighter work suitable to his partial incapacity. Code § 114-405. We do not feel that the case of Sears, Roebuck & Co. v. Wilson, 215 Ga. 746 (1), supra, compels a different conclusion.
For additional authority that not every award of the State
Judgment affirmed.
Rehearing
On Motion for Rehearing.
The movant insists that the court in its opinion has misconstrued the decision in Arnold v. Indemnity Ins. Co., 94 Ga. App. 493 (95 S. E. 2d 29). In the Arnold case the effect of the holding is that the prior award is res adjudicata in the absence of fraud, accident, or mistake, and the board’s subsequent jurisdiction “is confined to the question of whether there has been a change in condition under the terms of Code § 114-709.” There, this court held that the board was without jurisdiction to reopen the case in order to determine the extent of the claimant’s disability and whether or not he was justified in refusing an operation where the hearing was requested by the claimant “to determine the extent of his disability and the propriety of his refusal of the laminectomy” (an operation to correct a herniated intervertebral disc).' In the Arnold case it seems clear that the issue was limited as to whether the refusal to accept the operation was unjustified, thus causing the insurer’s discontinuance of payments to be proper. We see no conflict between that opinion and this one, for here the board found a change in the condition of the claimant from total to partial incapacity.
Movant urges that the case of Hartford Accident Ac. Co. v. Brennan, 85 Ga. App. 163 (1) (68 S. E. 2d 170), conflicts with the present holding. In the Brennan case the claimant returned to work but refused to sign settlement receipts, and it was held that the claimant may, at any time within two years from the date the board was notified of his refusal to'sign the receipts, “apply to the Board ‘to determine the amount of compensation to which . . ' . [the claimant] is entitled and for a review of any award or settlement which may have been made between the parties ... on the ground of a change in condition.’ ” There, after hearing, the board made an award granting compen
The motion for rehearing is denied.