Complete Auto Transit, Inc. v. Davis
| Decision Date | 28 June 1962 |
| Docket Number | 2,3,No. 39439,Nos. 1,39439,s. 1 |
| Citation | 106 Ga.App. 369,126 S.E.2d 909 |
| Parties | COMPLETE AUTO TRANSIT, INC., v. R. A. DAVIS |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Although an employee who is receiving compensation payments under an agreement approved by the Board of Workmen's Compensation, or under an award of the board, continues to be entitled to such payments after he returns to work until and unless a change in or discontinuance of payments is authorized by order of the board, or until the statutory amount has been paid in full, or a final settlement receipt has been filed with and approved by the board, when the employee returns to his job or to a different job with his employer the employer is entitled to a credit for wages paid during the period of reemployment.
2. Where, as here, the employee receives, during the period of reemployment, a wage equal to or in excess of that which he was receiving at the time of his injury, the credit will fully offset any compensation due for that period.
Claimant suffered a compensable injury November 14, 1955, after which he and his employer entered into an agreement for the payment of compensation for total disability and it was duly approved by the board. Payments of compensation were made under the agreement until October 4, 1957 when claimant returned to his job at a rate of pay equal to or in excess of that which he was receiving at the time of the injury. Upon claimant's return to work the employer (a self-insurer) discontinued the compensation payments without having applied for or obtained any order or approval from the board authorizing that such be done. Claimant continued working until January 15, 1958, when he became temporarily incapacitated to work from a cause unrelated to the original injury. On April 29, 1959 he requested a hearing and the board ordered such to be held 'to determine liability, disability, compensation and medical.' The hearing was held and he was denied further compensation. On appeal to Fulton Superior Court the award was set aside because the board had erroneously placed the burden of proof on the employee of showing that there had been a change in his condition, and that judgment was affirmed by this court. Complete Auto Transit, Inc. v. Davis, 101 Ga.App. 849, 115 S.E.2d 482. Thereafter the case was again considered by the Board under its order of April 29, 1959 for a hearing, and a single director awarded compensation for total disability under the original agreement from October 4, 1957, through November 11, 1960, and found that claimant had undergone a change of condition by reason of which he was entitled to no compensation subsequent to November 11, 1960. On appeal to the full board the single director was 'reversed,' 1 and an award was entered denying claimant compensation from the time he returned to work October 7, 1957 on the ground that he had undergone a change in condition at that time. That award was appealed to Fulton Superior Court where a judgment of reversal was entered because the award of the board was retroactive, and thus made by the board under a misconception of its powers. Upon this judgment of the superior court claimant here assigns error.
Woodruff, Latimer, Savell, Lane & Williams, John M. Williams, Atlanta, for plaintiff in error.
Essley B. Burdine, E. D. Shaw, Atlanta, for defendant in error.
1. The award of the full board denying compensation was entered upon the basis that when a claimant returns to work with his employer at a wage equal to or in excess of that which he was receiving when he was injured, he has undergone a change of condition and that his right to compensation thereupon ceases, and that this is true whether or not the employer has obtained any order or approval of the board for discontinuing compensation from the time the employee went back to work.
Insofar as the matter of credit for wages paid is concerned it is not necessary here to deal with the issue as to whether the board can make an order dealing with a change in condition of the employee retroactive to a time prior to the filing of the application for a hearing.
We simply hold here that when an employee returns to his old job, or to some other job with his employer, the employer is entitled to credit for wages paid during the period of reemployment against his liability for the payment of compensation. American Mutual Liability Ins. Co. v. Hampton, 33 Ga.App. 476, 127 S.E. 155; Lumbermen's Mutual Cas. Co. v. Cook, 69 Ga.App. 131, 25 S.E.2d 67; Riegel Textile Corp. v. Vinyard, 88 Ga.App. 753, 756, 77 S.E.2d 760; Sears, Roebuck & Co. v. Wilson, 215 Ga. 746, 753, 113 S.E.2d 611.
2. And where, as here, the wage received during the period of reemployment is equal to or in excess of that which the employee was receiving at the time of his injury the credit will offset all liability for compensation during that period. The credit which the employer may take for wages paid is earned each week and it may be asserted by him at any time thereafter when the employee seeks to enforce payment of the compensation due and unpaid during the period of reemployment. This may be done by way of an affidavit of illegality if judgment and execution have been obtained from the superior court for the accruing and unpaid compensation payments or, prior to judgment we think that a determination of the amount of credits due could be made by the Board under an appropriate application for a hearing on the question, pursuant to the provisions of Code § 114-715. This procedure would in no way have the effect of amending, varying, or changing the award, but merely permits the application on the award of that credit which the law permits.
If there were periods of time subsequent to the effective date of the approved agreement or the original award when the employee worked but did not receive from his employer a wage equal to or in excess of that which he was receiving at the time of his injury, but received something less, we think that the board might, upon proper application, make a...
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...again awarding compensation although in the interim an award has been rendered stopping compensation. In Complete Auto Transit v. Davis, 106 Ga.App. 369, 126 S.E.2d 909, in a decision concurred in by all nine judges of the Court of Appeals (certiorari denied, 106 Ga.App. 886), Judge Eberhar......
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U.S. Fidelity & Guaranty Co. v. Davis
...wages paid by the same employer was conclusively answered by this court, with all the judges concurring, in Complete Auto Transit, Inc. v. Davis, 106 Ga.App. 369, 126 S.E.2d 909. It was there held that where 'the wage received during the period of reemployment is equal to or in excess of th......
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...that the board ought to have such continuing jurisdiction. Some discussion of the matter may be found in Complete Auto Transit v. Davis, 106 Ga.App. 369, 126 S.E.2d 909, supra. It would seem that the vacation of an order of approval for the purpose of allowing correction of an error induced......
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Hanover Ins. Co. v. Jones
...that the board ought to have such continuing jurisdiction. Some discussion of the matter may be found in Complete Auto Transit v. Davis, 106 Ga.App. 369, 126 S.E.2d 909, supra. It would seem that the vacation of an order of approval for the purpose of allowing correction of an error induced......