Moore v. American Liability Insurance Co. , 67 Ga. App. 259 ( 1942 )

An award based upon an agreement for 25 per cent. disability, unappealed from, fixes the amount of compensation to which the claimant is entitled, and the amount remains fixed until increased or decreased by a hearing upon a change in condition. At such hearing, if the testimony does not show change in condition since the injury, if disability at first hearing was determined to be total, and if the Industrial Board found that the disability was continuous, with no change in condition from the first award to the hearing on change in condition, this in effect holds that the board could not modify the award for 25 per cent. disability based upon a change in condition. The extent of the disability remained the same from the time of the first hearing to the time of the application for change in condition.

DECIDED APRIL 10, 1942. On March 20, 1939, E. H. Moore was injured in the course of his employment with the Newnan Cotton Mills, which injury resulted in a hernia on the right side. At the time of the injury the plaintiff was afflicted with faulty muscular control of his left side, palsy in his left leg. The claimant refused an operation for the cure of hernia. A hearing was had before the Industrial Board in May, 1939. On June 13, 1939, the hearing director rendered an award in which he found that claimant was justified, for the time being, in declining an operation for hernia, and that the accident did not aggravate the pre-existing disease and conditions above mentioned. There was no appeal from this award, and compensation was paid accordingly as for temporary total disability. This award expressly required the defendants to pay the claimant this award "until such time as there may be a change in the condition for the better." Also, "As soon as claimant's condition is improved to such an extent that he is physically able to undergo the operation for the cure of hernia, the employer will furnish claimant a radical operation for the cure of the hernia."

The provisions of this order covered the situation until November 16, 1939, when an agreement was reached for compensation in accordance with Code § 114-405. At this time an agreement was reached, one provision of which was as follows: "It is agreed by me, E. H. Moore, that the total disability due to the accident ceased on November 12, 1939, and from and after that date it is agreed that I am only 25 per cent. disabled in so far as the accident of March 20th, 1939, is concerned. It is agreed that any disability which I now have or may have in so far as the right hernia is concerned is included in the 25 per cent. disability. It is also agreed that I have been offered an operation for the repair of the hernia and this has been declined by me, and I agree to accept compensation based upon a 25 per cent. permanent partial disability, included in which is any and all disability due to accident of March 20, 1939, and any and all other disability is not due to or aggravated by the accident of March 20, 1939."

The agreement was filed with and approved by the Industrial Board. Under it the defendant was to receive compensation at the rate of $1.50 per week for a period of 267 weeks, covering 25 per cent. permanent disability. On the date this agreement was approved by the board, the board approved a lump-sum settlement as per the award under the agreement. The plaintiff at the time was represented by an attorney, and the record does not reveal that the plaintiff was overreached in any way. In January, 1941, Moore employed other counsel, who made application to the board for additional compensation on a change in condition. The hearing on this application was had on January 30, 1941. After hearing evidence, the single director found that the evidence did not show a change in condition. On appeal this award was affirmed by the full board, with one exception which is not material here. The material portion of the award out of which this controversy arose is as follows: "The director is of the opinion that the claimant was totally disabled to do his former work at the time of the first hearing and he has been continuously disabled to do this form of work, and under the most liberal construction of section 114-409 [114-709?] the director could not hold that the claimant had suffered a change in condition." The plaintiff contends, first, that since the award of the director, affirmed by the Industrial Board, of May 6, 1941, is to the effect that the condition of plaintiff had not changed since the first award of June 13, 1939, the award under the agreement of November 16, 1939, should be disregarded as a matter of law, and the compensation be based upon the amount fixed on June 13, 1939, instead of the 25 per cent. basis as expressed in the award of November 16, 1939, based on an agreement; and, second, that if the court should find that the award, under the agreement of November 16, 1939, is to be taken as the true condition of the claimant at that time, then the finding of the board of May 6, 1941, showed that condition of claimant was changed.

We will deal with these questions together. It is well settled that the Industrial Board is without authority to increase or decrease an award for permanent partial or total disability except on a changed condition. Fralish v. Royal IndemnityCo., 53 Ga. App. 557 (186 S.E. 567), lays down the following principle of law, in the first and fourth headnote: "1. Where there is no change in condition, the department can not rehear the case on its merits and determine under the evidence that the claimant was totally disabled and had been since his injury, and make an award increasing his weekly compensation payments from a fifty per cent. disability basis to a one hundred per cent. disability basis, or vice versa. Gravitt v. Georgia Casualty Co.,158 Ga. 613 (123 S.E. 897). It has been held in other jurisdictions that in such a case evidence that the claimant's physical condition has always been worse than found by the previous award is not a showing of a change in condition. See 71 C. J. 1438 and cit. . . If the previous award finding the claimant's disability a fifty per cent. permanent partial disability, made upon application for review of the first award finding the claimant totally disabled, was without evidence to support it, it was not appealed from and upon affirmance brought to this court for final adjudication, and was therefore binding and conclusive on the parties, and could not be later set aside or disregarded on an application for a review on the ground of a change in condition, where the evidence did not authorize a finding that there was a change in the condition of the claimant."

The decision in Rourke v. United States Fidelity GuarantyCo., 187 Ga. 636 (1 S.E.2d 728), is authority to the effect that the award of November 16, 1939, which was unappealed, was fixed and binding upon the parties until it became modified in the manner prescribed by the workmen's compensation act. That case lays down the proposition that even though the award of November 16, 1939, was erroneous as to the amount of the compensation due, it became the law of the case as to the amount of the compensation, and that it could only be modified or terminated by proof of a changed condition. This changed condition must arise from future developments, as distinguished from any condition which existed prior to or at the time of the award as a result of the original injury. While it is true that the award of November 16, 1939, fixed the amount of compensation until a change in condition, as provided by the act, yet it does not necessarily follow that the percentage of compensation fixed by the award of November 16, 1939, measured the extent of the actual physical disability at the time the compensation became fixed. By reference to the award of May 6, 1941, it will be observed that the board found that from the first award in June, 1939, "the claimant was totally disabled . . and has been continuously disabled, . . therefore the board could not hold that the claimant had suffered a change in condition."

We have read the evidence carefully and there is abundant proof on which the board was authorized to base this finding of fact. While the award does not mention the specific date of November 16, 1939, the date of this certainly was included within the finding that the condition was continuous from the first hearing, and would therefore include November 16, 1939. Indeed the record reveals that when the last hearing began (the hearing of June 13, 1941) the following colloquy took place between the director and the attorney for the claimant: "Mr. Goldberg: I am going to take the position that you have power to go beyond the agreements and I think it is your duty to go behind it. The director: You are going to have to show that the change took place since the agreement. Mr. Goldberg: That is what I propose to do. The director: You may proceed."

The agreement referred to was the agreement on which the award of November 16, 1939, was based, so the effect of the award under consideration was that there was no change in condition of the claimant since the hearing by the Industrial Board of June 13, 1939. Therefore the construction of the finding of the board was to the effect that there was no change in the condition of plaintiff since November 16, 1939. The law provides imperatively that a change in condition is essential to modify a final award. If it be true that the award of November 16, 1939, did not express the full amount of the compensation to which the claimant was entitled at that time, according to his then actual physical condition as a result of the injury, this court, under the law, is without authority to relieve him. We think the cases above cited sustain this conclusion of law. The case at bar is distinguished from Tillman v. Moody, 181 Ga. 530 (182 S.E. 906), which dealt with a death claim. See Ingram v. LibertyMutual Insurance Co., 62 Ga. App. 789 (10 S.E.2d 99).

The court did not err in dismissing the appeal.

Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.