London Guarantee Accident Co. v. Pittman , 69 Ga. App. 146 ( 1943 )

1. The act of 1937, amending the Code, § 114-709, in which amendment the time for filing applications to review an award on a change in condition is limited to two years from the date the Industrial Board is notified of the final payment of the claim, does not cover a case where the employee was injured before the adoption of the amendment, although the report of final payment of the claim was made after the amendment.

2. An award of the Industrial Board, based on an application under the Code, § 114-709, for additional compensation on a change in claimant's condition, increasing the compensation previously paid to the claimant, shall not be affected by the previous awards under review, as regards the amount of moneys paid thereunder to the claimant.

3. The finding of the Industrial Board that the claimant's condition due to the original injury had changed, and his disability increased, was supported by the testimony of the physician designated by the board to examine the claimant, and by an observation of the claimant's injury and disability by the director on the hearing, and therefore is binding on this court.

DECIDED MARCH 19, 1943. Walter Pittman, while engaged in his employment with Philip Carey Roofing Company, sustained an accidental injury on September 26, 1934, when a truck of his employer in which he was riding, and in which there were three drums of hot roofing asphalt, got out of control of the driver and turned over, causing Pittman to fall and his left hand and arm to be thrust into a drum of this asphalt and burned. On October 10, 1934, there was filed with the Department of Industrial Relations a memorandum of agreement as to payment of compensation, which stated that Pittman and his employer had reached an agreement as to compensation for the injury. It was stated in this memorandum that the employee's regular wages as of the date of the accident were $17.60 weekly. The nature of the employee's disability was stated to be "temporary total," and the terms of the agreement as to compensation were for the payment of $8.80 per week, beginning October 3, 1934, during disability. On October 29, 1934, the department rendered an award approving the agreement, and providing that compensation at the agreed weekly rate should be paid "beginning October 3, 1934, and continuing during disability." On July 15, 1935, the department received another agreement memorandum between the employee and employer, dated June 28, 1935, which recited that the employee had suffered a 66-2/3 per cent. loss of the use of his left hand, which estimate was based upon the report of Dr. Roberts dated May 13, 1935. On July 24, 1936, the department rendered an award styled "approval of agreement," which recited that the department had examined the agreement of June 28, 1935, and had approved it. This award provided that compensation be paid at the rate of $8.80 per week, beginning October 3, 1934, and continuing through December 11, 1934, for temporary total disability, and provided that compensation for permanent total disability be paid at the same rate, beginning December 12, 1934, and continuing through May 14, 1935, and also provided for permanent partial compensation to be paid at the rate of $5.86 per week, beginning May 15, 1935, and continuing for 129 weeks, payment to be made at the rate of $8.80 per week.

Thereafter Pittman was again examined by Dr. Roberts, and on July 28, 1937, as the result of a hearing held by a director of the Industrial Board on January 9, 1937, at which Dr. Roberts, a disinterested physician appointed by the board, testified that he had examined the claimant on December 29, 1936, and that in his opinion at that time maximum improvement had been reached and the claimant then suffered a loss of 50 per cent. of the function of his left hand, the director found, that the claimant had sustained, as the result of his injury, a 50 per cent. loss of the use of his hand; that maximum improvement was reached on December 29, 1936; and that such employee had had no other disability as the result of the accident on September 26, 1934. In the award the director stated as follows: "The payments due in the case are therefore as follows: Ten weeks temporary total disability at $8.80 per week, in a total amount of $88. Twenty-one and two-thirds (21-2/3) weeks total loss of use of member, at the same rate to May 13, 1935, in a total amount of $190.66. Sixty-six and two thirds per cent. (66-2/3) loss of use of the hand at the rate of $5.86 per week, from May 13, 1935, to December 29, 1936, in a total amount of $499.08. Four dollars and forty cents ($4.40) for forty-three and one-sixth weeks (43-1/6) for a fifty per cent. loss of use of the hand from December 29, 1936, during the remainder of the one hundred and fifty weeks (150) payable for the hand, in a total amount of $189.93. This makes the total amount payable $967.67. The Philip Carey Roofing Company, employer, and the London Guarantee and Accident Company, insurance carrier, will, resume payments of compensation to Walter Pittman at the rate of $8.80 per week, beginning as of the date of the last payment, and continue the payments at that rate until the total of $967.67 (including the payments heretofore made) has been paid." An appeal to the board from this award was entered on August 2, 1937, by the London Guarantee Accident Company, the insurance carrier for Philip Carey Roofing Company, the employer, on the ground that the compensation awarded had already been paid to Pittman by the employer. The record does not indicate any action by the board on this appeal.

On July 17, 1941, the employee filed with the Industrial Board his application for a review, on the ground of a change in condition. A hearing was held on September 17, 1941, at which the claimant testified, and at which Dr. F. C. Mims as a witness for the board testified, and at which the director before whom the hearing was had examined the claimant as to his disability. The claimant testified, in substance, that he had been paid in 1935 for a fifty per cent. loss of the use of his left hand; that now (the time of testifying) his hand is in worse condition; that it hurts him all the time; that when he arises in the morning he staggers because his hand aches and pains him so much; that about three years ago he worked on the WPA for about six months, but had to quit, and that he has not worked since that time. Dr. F. C. Mims testified, that in his opinion the claimant had about 85 per cent. loss of the use of his left hand; that at the time of the hearing he had 85 per cent. permanent partial disability of the left hand, of which 50 to 60 per cent, was due to trauma and the rest due to arthritis; that the claimant had a 50 per cent. disability to his left shoulder, which was due to nontraumatic arthritis and myositis; that, based on the claimant's statement to him, the witness would say that arthritis set in seven or eight months ago; that these things are entirely separate things, and the 50 to 60 per cent. disability is due to trauma and the remainder to arthritis; that the claimant's hand is a complete loss to him for hard labor, but he can do little things with it; that the witness thought only 50 to 60 per cent. was due to the accident; that the claimant told him about how his hand was injured, and told him that he was sent to the Harris Memorial Hospital, under the care of Dr. Elkin and Dr. Martin, for one month, after which he reported to their office at intervals of from one to six times a week for nine weeks; that his left hand improved, and he was able to make a fist and almost completely extend all of his fingers at the time he was dismissed by these doctors, but that the fingers on his left hand began to get stiff and to swell soon after his dismissal, and they have gradually become practically useless; that he had no pain in his left arm or shoulder until four months ago, when he developed pain in the wrist and shoulder, side of the neck, and entire elbow joint of his arm. R. E. Lee Field, of counsel for the insurance carrier, stated at the hearing, that while the claimant's hand was practically without any motion he did move it enough; that there was a fifteen per cent. [use]; that claimant had more loss of motion in his hand than when he saw him, which was about two months ago; and that he predicted that the claimant would get absolute stiffening of the fingers "where it can't be moved, and very apt to have some trouble."

On September 24, 1941, the director rendered an award, based on the testimony at the hearing and on his observation of the claimant's injured hand, in which he found as a matter of fact from the undisputed evidence that the claimant has had a change in the condition of his left hand since he was paid compensation of 50 per cent. increase over that which had already been awarded him, and that his left hand then had 100 per cent. loss of use, and was entitled to compensation at the rate of $8.80 per week for 75 weeks, or until such time as there may be a change in condition. This award stated that the claimant had filed his claim with the board on July 17, 1941, and that his compensation should commence as of that date. On September 26, 1941, the director rendered the following amended award: "The award dated September 24, 1941, of the above foregoing and stated case, issued by the undersigned director, is hereby amended as follows: On page 2, the last paragraph just preceding the award which is attributed to have been testimony of Mr. Field, is in error, and the same is the testimony of Dr. F. C. Mims; and the award is therefore amended to read to show this paragraph as relating to the testimony of Dr. F. C. Mims. Under the award on page 4, the employer and/or insurance carrier are directed to pay to Walter Pittman, commencing on July 17, 1941, the sum of $8.80 per week for seventy-five (75) weeks or until there may be a change in condition; this is based on a 50 per cent. additional loss of use of the hand. It appearing to this director that an error has been made in said award, and that the employer and/or insurance carrier have already paid one thousand, thirty seven dollars and fifty-four cents ($1037.54) under the award dated July 28, 1937, being for temporary total and partial disability to the injured member. For temporary and total loss of use of the injured member the claimant is entitled to one thousand four hundred and eight dollars ($1408); and having been paid one thousand thirty-seven dollars and fifty-four cents ($1037.54) under the award dated July 28, 1937, the claimant is now entitled to, under the award dated September 24, 1941, the sum of three hundred seventy dollars and forty-six cents ($370.46) at the rate of eight dollars and eighty cents ($8.80) per week, or until there is a change in condition, at which time either party may make application to the board and have the issue determined. Philip Carey Roofing Company and/or London Guarantee and Accident Company will therefore resume compensation payments, beginning July 17, 1941, to Walter Pittman at the rate of eight dollars and eighty cents ($8.80) per week, said payments to continue until the balance for total loss of use of arm, in the total amount of three hundred seventy dollars and forty-six cents ($370.46) has been paid or until there is a change in condition, at which time either party upon application to the board may have the question heard and the issue determined."

On appeal from the awards of September 24, and September 26, 1941, the board remanded the claim to a director, for the purpose of taking additional medical testimony. On February 10, 1942, the claim was heard before a director under the remand. At this hearing Dr. Dan C. Elkin testified for the employer and the insurance carrier, that on December 5, 1941, he had examined and treated the claimant; that the claimant at that time was complaining of the disability of his left hand and left arm and of pain in his shoulder; that the witness did not believe the accident had anything to do with the condition of the arm and shoulder, which he thought was "an arthritis, rheumatic condition in his arm;" that when he examined the claimant he thought the extent of claimant's disability caused by the accident was "about fifty per cent. of the left hand;" and that in his opinion the condition of the claimant at that time was about the same as it was when he examined and treated the claimant (just before the award of July, 1937), when the claimant's condition had reached maximum improvement.

Dr. F. C. Mims as a disinterested physician testified, that he examined the claimant on February 5, 1942; that in giving the history of his accident and injury the claimant informed Dr. Mims that at the time he fell against the drum containing the boiling asphalt, in addition to being burned, he had four teeth knocked out and all of his remaining teeth were loosened, and his right knee and right leg bruised; that the fingers on his left hand had become stiff and practically useless; that he complained of constant pain and soreness in his neck, shoulder, left arm and hand; that his left hand is practically useless; that there is an 85 per cent. loss of voluntary motion of the left hand; that he has no motion of his thumb on the left hand, and that is where the 15 per cent. remaining comes in; that he disagreed with Dr. Elkin on the amount that the claimant could move his hand; and he exhibited to the director to what extent the claimant could move his hand. This was done by the director's observing the claimant's hand. The doctor further testified, that, in addition to the left hand being practically useless, the claimant suffered disability due to arthritis, which is developed from a focus of infection, possibly in the mouth, and has a chronic myositis involving the muscles of the left of the neck and left shoulder; that both the myositis and arthritis are the result of a focus of infection which may have been in his mouth before the injury and released by the breaking and loosening of the teeth; that the injury was undoubtedly aggravated by a focus of infection which produced arthritis; and that in his opinion the claimant has for industrial purposes almost 100 per cent. disability in his hand, although he has only 85 per cent. actual loss of motion. The claimant testified at this hearing, and stated that the accident knocked out four of his teeth and loosened others, and that he had been getting worse and his disability increasing since the award of July, 1937. It appeared on the hearing that in counting the various disabilities for which the claimant had been allowed compensation at different times the insurance carrier had paid in all 350 weeks compensation, being 43 for temporary total, eighty-plus for 63-2/3 per cent. loss of the use of his left hand, and the remainder of the 350 weeks at 50 per cent. At the conclusion of the hearing Mr. Field, of counsel for the insurance carrier, stated, relatively to the compensation paid by the employer and the insurance carrier to the claimant, as follows: "They have paid the full number of weeks for the loss of the hand, 150 weeks; but I don't think there has been any more than that paid."

Based on the foregoing the board made the following finding, dated April 15, 1942: "The full board finds, from the evidence adduced at the hearing on February 10th, 1942, that there has been a change in the condition of the left hand since the claimant was paid compensation for a fifty per cent. loss of use of his left hand. The full board finds, from the greater weight of the evidence, that there has been an increase of thirty-five per cent. loss of the use of the left hand of the claimant over the fifty per cent. previously paid him, and that he is therefore entitled to 35 per cent. loss of use of his left hand, which entitles him to compensation at the rate of $8.80 per week for fifty-two and one half (52 1/2) weeks, and that his compensation payments should commence on July 17, 1941." The board awarded compensation as of July 17, 1941, $8.80 per week for fifty-two and one half weeks, or until there may be a change in condition. The employer and the insurance carrier appealed to the superior court, on the grounds, that there was not sufficient competent evidence to warrant the award; that it was contrary to law, because the facts found by the director did not support such award, because in making the award the director acted without and in excess of his power, and because the award was made notwithstanding the fact that the Code, § 114-709, provides that any claim based on change in condition must be filed within two years from the date the board is notified of final payment, and the board was notified of final payment under the award of July 27, 1937, by a letter dated August 6, 1937, and the application for a review on the ground of a change in condition was not filed until July 17, 1941; and the board was without jurisdiction to have a hearing thereon and to make such award. The superior court affirmed the award, and the employer and the insurance carrier excepted. 1. This case involves an award of additional compensation on account of a change in condition, resulting in the claimant's increased disability, on application for a review under the Code, § 114-709. The director who heard the claim found that since the final payment to the claimant of the compensation which had been awarded to him on July 28, 1937, his condition had changed and his disability had increased. It is contended that the claimant's right to apply for additional compensation on the ground of a change in condition was barred under the Code, § 114-709, as amended in 1937 (Ga. L. 1937, p. 528), because, when the claimant applied therefor, more than two years had elapsed since the payment of the compensation previously awarded to the claimant, and that the Industrial Board did not have jurisdiction to render the award complained of. This is so, as stated, for the reason that the claimant, while he was injured on September 26, 1934, had no right, on a change in condition increasing his disability, to apply for additional compensation, because it appeared that more than two years had elapsed since the board had been notified of the final payment of the compensation under the previous award, under which award it was found that maximum improvement had been reached by the claimant. This law as amended is 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 Industrial Board may, within two years from the date that the board is notified of the final payment of claim, review any award or any settlement made between the parties and filed with the board; and on such review may make an award ending, diminishing or increasing the compensation previously awarded or agreed upon." Code Ann. § 114-709. On March 30, 1937, this statute was so amended as to strike therefrom the words "at any time" in the third line, and to substitute in lieu thereof the words in the statute as above quoted "within two years from the date that the board is notified of the final payment of claim." Therefore, before the act of 1937, § 114-709 did not contain any limitation on the time within which an application for a review of an award based on a change in condition, could be made. See Maryland Casualty Co. v. Posey,58 Ga. App. 723 (199 S.E. 543).

The plaintiffs in error state that their contention is borne out by the decision in Maryland Casualty Co. v. Posey,58 Ga. App. 723, 725 (3) (199 S.E. 543), where this court, referring to the amendment of 1937, said: "Since it made no provision for the filing of claims on changed condition in cases where the report of settlement had been made before its passage, and especially those cases where the report had been made two years previously thereto, it is construed to refer to cases where such final reports of payments were made after its passage." The claimant Posey was disabled on June 27, 1924, and the agreement as to compensation was entered into and the compensation paid in full, the last installment being paid on August 26, 1925. On August 27, 1937, after the adoption of the amendment of 1937, Posey applied for additional compensation on the ground of a change in condition; and compensation was denied on the ground, among others, that more than two years had elapsed from the date of the notice to the Industrial Board of the final payment of the original claim before the application for additional compensation was filed. On appeal to the superior court this holding was reversed, and the employer and the insurance company excepted. This court held that the right of the employee to claim additional compensation was not barred, since the act of 1937 made no provision relative to the filing of claims on changed condition in cases where the report of final payment had been made before its passage, and therefore was to be construed to refer to cases where final reports of payments were made after the passage of the amendment. This was not a ruling that the 1937 amendment referred to cases where the injury occurred and the compensation was applied for before the passage of the amendment even though the final award and the report of final payment of compensation were made after the amendment was passed. After stating that "Under the former act the application for compensation on account of change in condition could be made at any time," where there was a change in such condition, this court stated specifically: "The question whether the amendment covers a case where the employee was injured before the amendment, and the report of final payment was made after the amendment, is not now before us for determination."

On March 30, 1937, when this amendment became effective, the claimant's right to compensation had already accrued to him, and occupied the status of a claim pending. The award of July 28, 1937, which was after the passage of the amendment, was a final adjudication of the claimant's right to compensation except on a change in condition, in which event he would be entitled to increased or diminished compensation as the case might be. His right to compensation arose when he sustained a compensable injury; when he was injured on September 26, 1934, he became entitled to receive compensation as provided in the workmen's compensation law in effect at that time. Therefore his right to compensation, including increased compensation on account of a changed condition, clearly arose by virtue of his injury, and not by virtue of the award of July 28, 1937. Regardless of the award of July 28, 1937, and of the final payment of the compensation thereunder, of which payment the board was notified, the claimant's right, as respects additional compensation provided he thereafter suffered a change in condition and increased disability, was in existence on March 30, 1937, when the amendment to the Code, § 114-709, limiting the time within which an injured employee could apply for and obtain such additional compensation on account of a change in condition as the result of which injury his disability was increased, went into effect. The right of the claimant to compensation for his disability caused by his injury, including his right to additional or increased compensation in the event his disability should increase as a result of his original injury, became vested in him on September 26, 1934, when he sustained the compensable injury which resulted in his disability, and also ultimately in his increased disability. This amendment, relative to an injury and claim for compensation filed with the Industrial Board before its passage, is not a statute affecting the remedy only. The claimant had no control over his future physical condition. He could not anticipate that as a result of his original injury his condition would change and his disability increase.

Retrospective statutes are forbidden by the first principles of justice. Mayor c. of Savannah v. Hartridge, 8 Ga. 23 (9). An act of the General Assembly which affects detrimentally some substantial right of a party or imposes a new duty in respect to transactions or considerations already past, or places an additional burden on a pending action, is retroactive and violates our constitution. Code, § 2-302. "A statute is retroactive in its legal sense which creates a new obligation on transactions or considerations already past, or destroys or impairs vested rights. A statute does not operate retrospectively because it relates to antecedent facts; but if it is intended to affect transactions which occurred or rights which accrued before it became operative as such, and which ascribe to them essentially different effects, in view of the law at the time of their occurrence, it is retroactive in character." Ross v.Lettice, 134 Ga. 866, 868 (68 S.E. 734, 137 Am. St. R. 281). Retrospective laws which divest previously acquired rights on principle occupy the same position with ex post facto laws. Wilder v. Lumpkin,4 Ga. 208. "Upon principle, every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective." Sturges v. Carter, 114 U.S. 511, 519 (5 Sup. Ct. 1014, 29 L. ed. 240). The amendment of 1937 makes no provision relative to claims for compensation where the injury accrued and the claim arose before its passage. To construe the statute, as contended by the plaintiffs in error, to affect the claimant's pending claim, would be to give it a retrospective operation and would make it retroactive as regards the claimant's previously accrued right to additional compensation on account of a change in his condition resulting from his injury causing increased disability. Laws prescribe only for the future, and generally have no retroactive operation. Code, § 102-104. Redd v. Hargroves, 40 Ga. 18, 24. The settled rule for the construction of statutes is not to give them a retrospective operation, unless the language imperatively requires such construction. Moore v. Gill, 43 Ga. 388, 391. Properly construed, therefore, the amendment of 1937 does not apply to a case where the claimant-employee was injured before the amendment became effective, although the report of final payment of compensation to the claimant was made after the passage of the amendment. See Winston v. State, 186 Ga. 573 (198 S.E. 667, 118 A.L.R. 719).

If the amendment of 1937 had provided, as did the act of March 16, 1933, dealt with in U.S. Fidelity c. Co. v. ToombsCounty, 187 Ga. 544, 549 (1 S.E.2d 411), that "the provisions of this act shall apply to existing [claims for compensation]," a different question would be presented. Cases like Central Bank v. Solomon, 20 Ga. 408, George v.Gardner, 49 Ga. 441, and similar cases, therefore have no application here.

2. The plaintiffs in error contend that the amount of compensation under the award of April 15, 1942, together with the compensation heretofore paid to the claimant exceeds the total amount the claimant would be entitled to, under the Code, § 114-406, for the loss of the use of his left hand. They further state that if it is contended that the claimant is entitled to the compensation as awarded on April 15, 1942, under § 114-405, which is for a partial incapacity, the period of 300 weeks from the date of the injury, as provided in this section, had elapsed before the time the claimant applied for additional compensation, and therefore that the claimant's right to further compensation has ceased.

There is no merit in these contentions. The claimant had been awarded compensation for the partial loss of the use of his left hand, under the Code, § 114-406, which provides that "the compensation for partial loss of, or for partial loss of use of, a member or for partial loss of vision of an eye, shall be such proportion of the payments above provided for total loss as such partial loss bears to total loss." Subsequently he applied for a review of the award, on the ground that his condition had changed and his disability had increased, and therefore that he was entitled to additional compensation for his increased disability. The Code, § 114-709, under which the claimant filed his application for additional compensation on a change in condition, provides that where it is found that there is a change in condition, growing out of the original injury, the board may make an award ending, diminishing, or increasing the compensation previously awarded, which award must be made subject to the maximum and minimum provided in the compensation act, and that "no such review shall affect such award as regards any moneys paid." The Supreme Court held, in Home Accident Insurance Co. v. McNair, 173 Ga. 566, 570 (161 S.E. 131), that the board, on review of an award based on a change in condition, "can not treat moneys paid under the original award as compensating the employee for compensation awarded on review, on the theory that the compensation received under the original award was sufficient to pay the compensation which would be due the employee for a permanent partial loss of capacity from the date of the original award to the date of the rendition of the award on review." The Supreme Court approved the ruling of this court in South v.Indemnity Insurance Co., 39 Ga. App. 47 (146 S.E. 45). In that case, on an application for review on the ground of a change in condition, where the employee had previously been awarded compensation for a permanent total loss of the use of a member, the board found that the employee's condition had changed and his disability decreased, and accordingly found that the employee was entitled only to compensation as for a permanent partial loss, instead of as for a permanent total loss, of the use of the injured member. The court held: "The commission was not authorized to impair its previous judgment by discontinuing his compensation entirely on the theory that he had already received, as for a total loss of the impaired member, more than he would be entitled to if the new finding had been made to begin with," and that the employee "could not be thus required to account for moneys already legally paid under the previous award."

Applying the above holdings to the present case, it follows that the award of April 15, 1942, should not be set aside because, as contended by the plaintiffs in error, the amount of compensation under such award, added to the amount of compensation previously awarded and paid to the claimant, exceeded the total amount the claimant was entitled to receive under the Code, § 114-406, for the loss of the use of his left hand. Travelers Insurance Co. v. Anderson, 185 Ga. 105 (194 S.E. 193), is distinguishable from the ruling here made. In that case the court decided whether compensation was payable under the Code, § 114-404, or under § 114-405. The claimant was not seeking compensation under § 114-405, and the provisions of that section have no application to this claim. See generally, TravelersInsurance Co. v. Anderson, 54 Ga. App. 842 (189 S.E. 537);Fidelity Casualty Co. v. Clements, 53 Ga. App. 622 (186 S.E. 764).

3. The finding of the board, that the claimant's condition had changed and his disability had increased, and therefore that he was entitled to additional compensation, was supported by the testimony of Dr. Mims, the physician designated to examine the claimant for the Industrial Board. Also, the director who heard the testimony observed the claimant and made an inspection of his hand and his use thereof. The findings of fact of the director where supported by the evidence are conclusive. The award complained of was authorized by the evidence and was not contrary to law, and the superior court properly rendered judgment affirming it.

Judgment affirmed. Sutton and Felton, JJ., concur.