49 Ga. App. 317 | Ga. Ct. App. | 1934
Lead Opinion
A former decision of this court in this case is reported in 46 Ga. App. 168 (167 S. E. 222). On certiorari the Supreme Court reversed the judgment. Travelers Insurance Co. v. Reid, 178 Ga. 399 (173 S. E. 376). Reid, the claimant, sustained an injury to his leg in December, 1930, and compensation was paid him by his employer and insurance carriers until August 8, 1931, at which time further compensation was refused on the ground that the claimant had fully recovered. The facts are set forth in the opinion of this court in 46 Ga. App. 168. A claim was filed with the industrial commission (now the Department of Industrial Relations), and upon a hearing before Commissioner
This court in 46 Ga. App. 168, in passing upon an appeal taken from this ruling of the superior court, used this language: “The claimant was awarded compensation pursuant to section SO, to continue during total incapacity, but the order provided in effect that whenever maximum improvement was reached and the extent of his permanent partial handicap, if any, ascertained, then payments thereafter should be made pursuant to section 32, the total number of weekly payments, however, not to exceed 185. We are of the opinion, and hold, that where an employee receives an injury which, though confined to his leg, results in total incapacity for an indefinite period of time, he is entitled, under the provisions of section SO of the workmen’s compensation law, to receive total disability compensation during the period of such toted incapacity and until a change of condition or the period of limitation provided by law is reached.” (Italics ours.) The Supreme Court, on certiorari, decided that “The Court of Appeals erred in holding that though the employee’s injury was confined to his leg, if it resulted in total incapacity for an indefinite time, he is entitled to receive total disability compensation during the period of such total incapacity, and until a change in condition or until the limitation fixed by law is reached under section SO of the workmen’s compensation act.” (Italics ours.) This decision of the Supreme Court followed the cases of Georgia Casualty Co. v. Jones, 156 Ga. 664 (119 S. E. 721), and Maryland Casually Co. v. Smith, 44 Ga. App. 840 (163 S. E. 247). It was said in the Jones case, supra: “Compensation for the loss of a member, under section 32 of the workmen’s compensation act of this State, is in full for such specific injury, and excludes compensation for temporary total disability
The reversal of the judgment in this case by the Supreme Court and the opinion filed disclose that the Supreme Court decision is a reversal of the statements of the law made by this court in its opinion in 46 Ga. App. 168, and such reversal does not consider the order of the superior court. Under section 82, where an injury occurs solely to a member, compensation for total incapacity, as under section 82, may be paid for ten weeks. This is considered healing time. Thereafter, if there is a loss of such member, compensation is paid therefor under section 33. If there is no loss of the member, as by removal, but there is a continuing total loss of the use of such member after the ten-weeks healing time, compensation shall still be paid for such continuing total loss of use, not to exceed the number of weeks as fixed by section 33. If before the expiration of the number of weeks as prescribed in section 33 for the loss of such member there be a recovery from the total loss of use, and such loss of use becomes only partial, then from that time the compensation shall, under section 45 of the act, be reduced proportionately to the recovery of the loss of use of such member.
This, as we understand, is the holding of the Supreme Court in this case and is in accord with the former adjudications. The claimant in this case is entitled, within the limits of section 33, to compensation so long as the loss of the use of such leg is total to the
Judgment reversed, with direction.
Dissenting Opinion
dissenting. I can not agree with the majority opinion in this case. Under section 32 of the workmen’s compensation act as amended by the act of 1923 (Ga. L. 1923, p. 95), compensation for the permanent partial loss of use of a member is in full payment for such injury, and any compensation for the temporary total disability resulting solely from that injury, except for a period not exceeding ten weeks, is expressly excluded. Georgia Casualty Co. v. Jones, 156 Ga. 664 (119 S. E. 721); Maryland Casualty Co. v. Smith, 44 Ga. App. 840 (163 S. E. 247); Stone v. American &c. Co., 42 Ga. App. 271 (155 S. E. 271). Where the injury of an employee is confined to a member and results in a total incapacity for work for a period longer than ten weeks, and finally causes the permanent partial loss of the use of the member, the employee should be paid compensation during the period of his total incapacity and until the maximum improvement in the condition of the member is reached, as for total disability, subject, however, to the provision, which may be inserted in the agreement between the parties, or in the award, that when the maximum improvement in the condition of the member has been reached, all payments of compensation in excess of the ten-weeks temporary total disability shall be deducted from the amount subsequently awarded for the permanent partial loss of the use of the member. Stone v. American &c. Co., supra. In such a case the Department of Industrial Eelations should either exercise the discretion given it by section 41 of the compensation act and allow the employer and insurance carrier credit on the compensation awarded
