London Guarantee & Acc. Co. v. Pittman

• Decision Date: 19 March 1943
• Docket Number: 29852.
• Citation: 25 S.E.2d 60,69 Ga.App. 146
• Court: Georgia Court of Appeals
• Parties: LONDON GUARANTEE & ACCIDENT CO. et al. v. PITTMAN.

25 S.E.2d 60

69 Ga.App. 146

LONDON GUARANTEE & ACCIDENT CO. et al. v. PITTMAN.

No. 29852.

Court of Appeals of Georgia, Division No. 2.

March 19, 1943

Syllabus by the Court.

Retrospective statutes are forbidden by the first principles of justice and an act which detrimentally affects 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 the Constitution. Const. art. 1, § 3, par. 2.

Laws prescribe only for the future, and generally have no retroactive operation. Ga.Code Ann. § 102-104.

Statutes are not to be given a retrospective operation unless the language imperatively requires such construction. Ga. Code Ann. § 102-104.

The Act of 1937 amending Code, section 114-709, and limiting time for filing applications to review compensation award because of change in condition to two years from date Industrial Board is notified of final payment of claim, does not cover a case where employee was injured before adoption of amendment although report of final payment of claim was made after such amendment. Ga.Code Ann. § 114-709.

On review of a compensation award based on change in condition the Industrial Board cannot treat money paid under the original award as compensating the employee for compensation awarded on review on theory that compensation received under original award was sufficient to pay the compensation which would be due employee for permanent partial loss of capacity from the date of the original award to the date of the rendition of the award on review. Ga.Code Ann. §§ 114-405, 114-406, 114-709.

An award on review on account of change in condition could not be set aside because the amount of compensation under such award added to the amount of compensation previously awarded and paid to claimant exceeded the total amount the claimant was entitled to receive under statute for loss of use of left hand. Ga. Code Ann. §§ 114-405, 114-406, 114-709.

Industrial Board's finding that claimant's disability had increased and that he was entitled to additional compensation was sustained by the evidence, and was therefore conclusive. Ga.Code Ann. §§ 114-405, 114-406, 114-709.

1. The act of 1937 amending 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 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 is therefore binding on this court.

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 to be 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 for compensation for the accidental injury. It was stated in this memorandum that the employee's regular weekly wages as of the date of the accident were $17.60. 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.

Thereafter 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 there was received by the department 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 on 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. The award of 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 full 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 single 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 50 per cent loss of the use of his left hand; that now 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 the claimant worked on the WPA for about six months but had to quit, and that he hadn't worked since that time. Dr. F. C. Mims testified that in his opinion the claimant has about 85 per cent. loss of the use of his left hand; that at the time of the hearing the claimant 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 has a 50 per cent. disability to his left shoulder, which is 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 he 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;...