Employees Ins. Co. of Ala. v. Amerson, 40548

• Decision Date: 25 February 1964
• Docket Number: No. 40548,No. 3,40548,3
• Citation: Employees Ins. Co. of Ala. v. Amerson, 136 S.E.2d 12, 109 Ga.App. 275 (Ga. App. 1964)
• Parties: EMPLOYEES INSURANCE COMPANY OF ALABAMA et al. v. Arthur B. AMERSON
• Court: Georgia Court of Appeals

Page 12

136 S.E.2d 12

109 Ga.App. 275

EMPLOYEES INSURANCE COMPANY OF ALABAMA et al. v.Arthur B. AMERSON.

No. 40548.

Court of Appeals of Georgia, Division No. 3.

Feb. 25, 1964.

Rehearing Denied March 6, 1964.

Syllabus by the Court.

The superior court in reversing an award of the State Board of Workmen's Compensation may in a proper case enter final judgment upon the findings of fact as made by the board; if there are no findings of fact upon which an award may be made, the superior court must remand the case to the board for the purpose of making findings of fact and, where necessary, to hear new evidence.

This is a workmen's compensation case.On August 14, 1957, the claimant suffered an injury arising out of and in the course of his employment, and an agreement as to compensation was entered into by the parties and approved by the board on February 19, 1958; and compensation was paid until the claimant returned to full-time employment at the same wages as before his injury.On July 16, 1959, the claimant, on the recommendation of his physician, accepted lighter work at a lesser salary and on October 29, 1959, the claimant requested a hearing before the State Board of Workmen's Compensation, the request for hearing stating that it was based upon a change in condition.Upon the hearing before a deputy director, it was ruled that the burden of proof of showing a change in condition was on the claimant, and the claim was denied on the ground that the claimant had failed to carry the burden of showing a change in condition, this being the only finding of fact made by the hearing director.The decision of the deputy director was affirmed by the full board who adopted the deputy's findings of fact and on appeal to the Superior Court of Lamar County, the award of the full board was affirmed.

This court in Amerson v. Employers Insurance Company of Alabama, 105 Ga.App. 336, 124 S.E.2d 496, in reviewing the judgment of the superior court held that since no final settlement receipt had been signed by the parties, the compensation agreement approved February 19, 1958, was conclusive as to the fact of total disability of the claimant; and the burden of showing a change in condition was therefore upon the employer and not upon the claimant as ruled by the board.The award of the board thus being based upon an erroneous theory of law and said award in favor of the employer not being demanded by the evidence, this court reversed without direction the judgment of the superior court which had affirmed the award.

On May 25, 1962, the judgment of this court was made the judgment of the Superior Court of Lamar County; and on June 8, 1962, the superior court entered an order which contained findings of fact that the claimant was still suffering from the compensable injury and that such injury caused his loss of earnings, a judgment for the claimant formulated on the basis of such findings of fact, and direction to the board to enter an award in conformity with the judgment of the superior court.On June 29, 1962, the board entered said award as directed.The employer and its insurer on July 5, 1962, filed a motion with the board to vacate said award, which motion was denied by the board on the same day; and on July 27, 1962, a new appeal predicated upon the statutory grounds as enumerated in Code§ 114-710 was filed in the Superior Court of Lamar County.The claimant then made application for attorney's fees under the provisions of Code Ann. § 114-712, a hearing was conducted on April 26, 1963; and on September 7, 1963, the superior court entered judgment denying the appeal, and awarded attorney's fees in the amount of $1,000 to the claimant.The employer and insurer excepted to said judgment, bringing the case back to this court for review.

The claimant has filed a motion to dismiss the writ of error upon the grounds that the bill of exceptions was not retendered to the superior court for certification within thirty days after it was originally filed and tendered back to the plaintiff in error for correction.

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