American Cas. Co. v. Herron, 38439

• Decision Date: 17 October 1960
• Docket Number: No. 2,No. 38439,38439,2
• Parties: AMERICAN CASUALTY COMPANY et al. v. HERRON
• Court: Georgia Court of Appeals

Page 172

117 S.E.2d 172

102 Ga.App. 658

AMERICAN CASUALTY COMPANY et al. v. HERRON.

No. 38439.

Court of Appeals of Georgia, Division No. 2.

Oct. 17, 1960.

Rehearing Denied Oct. 27, 1960.

Syllabus by the Court.

1. Where a claimant is entitled to compensation payments under an award of the Board of Workmen's Compensation or an agreement between the parties, the employer and/or its insurance carrier cannot discontinue payments thereunder until the claim has been paid in full, or has been settled between the parties, or until a new award or order of the board authorizes such discontinuance.

2. Where the insurance carrier without such authorization on June 17, 1958, arbitrarily ceased payments following an agreement between the parties to pay compensation, and the claimant thereafter requested a hearing, an award entered in March, 1960, based on evidence taken at a hearing held on December 16, 1958, and finding from that evidence that 'claimant has completely recovered from the incident of his hernia' without stating any particular date when such recovery took effect, will be construed to mean that the claimant's recovery dated from the date of such hearing.

The claimant Roy Herron suffered a hernia on April 2, 1958, and an agreement to pay compensation was entered into which stated 'that said compensation shall be payable from and including the 2nd day of May, 1958, until terminated in accordance with the provisions of the Workmen's Compensation Law of the State of Georgia.' Without obtaining a final settlement, and without obtaining any order of the Workmen's Compensation Board, the employer, Bargainer's Furniture Store, and its insurance carrier, American Casualty Company terminated compensation payments on June 17, 1958. The decision of the full board on appeal affirming the hearing director was reversed by the Judge of the Superior Court of Whitfield County and that judgment was affirmed by this court. See American Cas. Co. et al. v. Herron, 100 Ga.App. 661, 112 S.E.2d 160. On the return of the case the full board entered the following award, dated March 8, 1960: 'In accordance with the directions handed down by the Court of Appeals in American Casualty Company et al. v. Herron decided October 21, 1959, the evidence and record in the above styled claim is before the full board for consideration. We find from the evidence that the claimant has completely recovered from the incident of his hernia and the operation correction such hernia; that his doctor advises that he should not lift over fifty pounds but that such admonition and limitation does not result from the occurrence of the hernia or the operation correcting the hernia but because of a congenital weakness which renders the claimant 'hernia prone'; that any disability the claimant now suffers, that is the limitation of not lifting over fifty pounds, is a result of a congenital weakness and is not a result of his hernia or the operation correcting such hernia. Award. Wherefore, based on the above and foregoing the claim of Roy Herron against Bargainer's Furniture Store, employer, and/or American Casualty Company, insurer, is hereby denied.'

This award was appealed to the Judge of the Superior Court of Whitfield County, who entered the following final judgment in the case: 'Upon hearing the above captioned appeal, after argument of counsel, and upon consideration of the record, the award dated March 8, 1960, is hereby reversed and remanded to the State Board of Workmen's Compensation for further consideration; and with direction that an award for compensation be entered in favor of the claimant from the date payments were discontinued by the insurance carrier to the date the State Board of Workmen's Compensation found that a change of condition had not developed as to the claimant.' This latter judgment is assigned as error.

Smith, Field, Ringel, Martin & Carr, Charles L. Drew, Atlanta, for plaintiff in error.

J. Paxson Amis, Chatsworth, for defendant in error.

TOWNSEND, Judge.

1. There is in this record an agreement for payment of compensation which all parties, in both appeals to this court, have treated as valid, and which the Board of Workmen's Compensation recognized in that the initial hearing scheduled in this case for December 16, 1958, was set to determine 'change of condition.' It has been well settled by the decisions of this court, and there should now be no misunderstanding of the fact on the part of employers and insurance companies, that when a settlement agreement recites payments are to be made 'until terminated in accordance with the provisions of the Workmen's Compensation Law,' this means that no employer, and no insurance company, can voluntarily and ex parte decide to cease paying the employee, regardless of how well founded its claim may be as a matter of fact, unless and until it is able to produce one of the following three instruments: (1) a final settlement receipt or other like agreement between the parties changing the terms of the original agreement approved by the board; (2) evidence that the statutory amount, or the amount called for under the agreement, has been paid in full, or (3) an order of the board ...