Travelers Insurance v. Anderson

185 Ga. 105 | Ga. | 1937

Lead Opinion

Atkinson, Presiding Justice.

1. Code § 114-404 is a codification of section 30 of the workmen’s compensation act as amended, and § 114-405 is a codification of section 31 of that act. Code § 114-404, so far as material to be stated, provides: “When the incapacity to work resulting from an injury is total, the employer shall pay or cause to be paid, as hereinafter provided for, to the employee during such total incapacity a weekly compensation, . . and in no case shall the period covered by such compensation be greater than 350 weeks, nor shall the total amount of compensation exceed $5,000.” Code § 114-405, so far as material here, provides: “Except as otherwise provided in the next section hereafter [relating to loss or partial loss of a member and loss of vision] where the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid, as hereinafter provided, to the injured employee during such incapacity, a weekly compensation, . . and in no case shall the period covered by such compensation be greater than 300 weeks from the date of the injury. In case the partial incapacity begins after a period of total incapacity, the latter period shall be deducted from the maximum period herein allowed for partial incapacity. The total compensation payable shall in no case exceed $5,000.” These sections, in the circumstances of this case, are to be• considered in connection with § 114-709, as follows: “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 Department of Industrial Delations may at any time review any award or any settlement made between the parties and filed with the Department, 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 shall immediately send to the parties a copy of the award. No such review shall affect such award as regards any moneys paid.”

When the foregoing provisions of the statute are considered together as applied to the facts of the case, the director was not authorized to award additional weekly compensation on the basis of total incapacity, commencing “October 30, 1934, and continuing during his total disability, subject to the limit of 350 weeks including the 46-2/6 weeks previously paid.” This is so because the finding of the director that the claimant had been suffering continuously with a disability which resulted from his accidental injury sustained on June 4, 1926, and that there was a change of condition for the worse resulting in total incapacity, must be construed as finding that the disability referred to was only partial during the period mentioned. Under this construction the compensable period for both partial and total disability would have been exhausted previously to October, 1934. His whole compensable periods would have been consumed by allowance as for partial incapacity, and any compensation would have been allowable under the Code, § 114-405. In this view the Court of Appeals erred in affirming the judgment of the trial court.

Judgment reversed.

All the Justices concur, except Russell, O. J., and Hutcheson, J., who dissent, and Jenkins, J., disqualified.

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Dissenting Opinion

Russell, Chief Justice.

I approve the opinion and judgment of the Court of Appeals in toto, and consequently dissent from the judgment of reversal. Mr. Justice Hutcheson concurs in this dissent.