47 Ga. App. 508 | Ga. Ct. App. | 1933
On- February 3, 1931, a member of the Department of Industrial Belations (formerly the Industrial Commission)
Section 45 of the compensation act reads as follows: “Upon its own motion before judicial determination or upon the application of any party in interest on the ground of a change in condition, the Industrial Commission may at any time review any award or any settlement made between the parties and filed with the Commission, 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 Act, and shall immediately send to the parties a copy of the award. No such review shall effect [affect] such award as regards any monies paid.”
Judge Jenkins, speaking for the court in South v. Indemnity Insurance Co., 39 Ga. App. 47 (3) (146 S. E. 45), said: “Upon an application for such review, the essentials leading up to the award are to be taken as res judicata, but the physical condition of the employee remains open to inquiry,” and cites as supporting this
In the instant case on the question as to the effect of the accident upon the plaintiff in error; that is, as to his disability arising out of the accident, the evidence was by the plaintiff in error and two doctors. On the review of the first award the evidence of claimant as to his disability was given by himself and the same two doctors. However, it was the testimony of Dr. C. W. Boberts, who bears the title of Adviser to the Commission, upon which the second award was based. We think the evidence in this case authorized the Director to find that Williams, the claimant, was suffering from an accident and injury at the time of the first award in his favor; that this condition had cleared up; and that any disability he might have been suffering at the time of the second award was caused by and resulted solely from a diseased condition in no way connected with the accident.
We hold that the employee’s condition at the time of the first award was not res adjudicata; notwithstanding the fact that the
Judgment affirmed.