Bump v. Continental Cas. Co.

• Decision Date: 07 February 1964
• Docket Number: No. 1,40170,Nos. 40169,s. 40169,1
• Citation: 136 S.E.2d 14,109 Ga.App. 228
• Parties: Kenneth J. BUMP v. CONTINENTAL CASUALTY COMPANY et al. CONTINENTAL CASUALTY COMPANY et al. v. Kenneth J. BUMP
• Court: Georgia Court of Appeals

Page 14

136 S.E.2d 14

109 Ga.App. 228

Kenneth J. BUMP v. CONTINENTAL CASUALTY COMPANY et al.

CONTINENTAL CASUALTY COMPANY et al. v. Kenneth J. BUMP.

Nos. 40169, 40170.

Court of Appeals of Georgia, Division No. 1.

Feb. 7, 1964.

Rehearing Denied Feb. 28, 1964.

Poole, Pearce & Hall, Martin H. Rubin, Atlanta, for plaintiff in error.

Gambrell, Harlan, Russell, Moye & Richardson, E. Smythe Gambrell, Edward W. Killorin, Atlanta, for defendants in error.

Syllabus Opinion by the Court

RUSSELL, Judge.

1. (a) 'In its instructions to this court the Supreme Court held that the conclusiveness established by an agreement filed with and approved by the board that an employee has suffered an injury compensable under the terms of the Workmen's Compensation Act, dates from the moment of the execution of the agreement * * *.' Fidelity & Casualty Co. of New York v. Parham, 107 Ga.App. 466, 130 S.E.2d 535. 'The agreement [in the case sub judice] was executed on September 19, 1957, and approved by the State Board of Workmen's Compensation on September 20, 1957, and accordingly possessed all of the force of an award of compensation.' Continental Casualty Co. v. Bump, 218 Ga. 187, 188, 126 S.E.2d 783.

(b) '[W]hen there is an adjudication of a change of condition the board may, as provided in Code Ann. § 114-405, order a different payment of compensation suited to the change and the order becomes effective from the time an application for a hearing based upon a change in condition was filed.' Complete Auto Transit, Inc. v. Davis, 106 Ga.App. 369, 372 et seq., 126 S.E.2d 909, 913. 'A new award of the State Board of Workmen's Compensation entered on the basis of a change in condition cannot modify or set aside the previous award as to any time prior to the date of the application for the new award.' Anglin v. St. Paul-Mercury Indemnity Co., 106 Ga.App. 395, 126 S.E.2d 913. The court in Davis, supra, stated its reasons for its unwillingness to overrule previous decisions enunciating this rule of law; the same considerations cause us now to deny the motion of counsel to overrule Davis. Nothing in Fidelity & Casualty Co. of New York v. Parham, 218 Ga. 640, 129 S.E.2d 868, same case, 107 Ga.App. 466, 130 S.E.2d 535, supra indicates a contrary view, since there the Supreme Court was dealing with the admissibility of medical testimony as to a condition accruing after the execution but before the approval of an agreement to pay compensation, for use on a change of condition hearing in which it was not contended that the finding of change of condition should be made retroactive prior to the date of application for such hearing.

(c) This claimant sustained a compensable injury on August 30, 1957. On September 19, 1957 (although he had actually returned to work) the parties entered into an agreement to pay compensation beginning September 6, 1957 'until terminated in accordance with the provisions of the Workmen's Compensation Law,' and reciting, 'Probable length of disability undetermined.' The award was approved by the board on September 20,...