Employers Liability Assur. Corp. v. Whitlock

• Decision Date: 10 March 1965
• Docket Number: Nos. 1,3,No. 41023,2,41023,s. 1
• Citation: 142 S.E.2d 77,111 Ga.App. 440
• Parties: EMPLOYERS LIABILITY ASSURANCE CORPORATION et al. v. Julian T. WHITLOCK
• Court: Georgia Court of Appeals

Page 77

142 S.E.2d 77

111 Ga.App. 440

EMPLOYERS LIABILITY ASSURANCE CORPORATION et al. v. Julian T. WHITLOCK.

No. 41023.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

March 10, 1965.

Rehearing Denied March 31, 1965.

Syllabus by the Court.

The award continuing compensation to the claimant for total disability was authorized under the record and the evidence.

Julian T. Whitlock filed a claim for compensation for an injury incurred on February 7, 1963, against Lamex, Inc., emplolyer, and Employers Liability Assurance Corporation, insurance carrier. The employee was paid compensation at the rate of $30 per week based upon an average weekly wage of $72 under an agreement of the parties and approved by the State Board of Workmen's Compensation on March 18, 1963, beginning on February 14, 1963. Compensation was paid under this agreement until claimant returned to work on April 22, 1963, at a weekly wage of $72. A supplemental agreement was entered into by the parties reciting this fact and that, 'We further agree that liability for temporary total disability ceased on April 22, 1963.' The employee again became disable from the same injury on May 1, 1963, and the parties entered into an agreement reciting that the claimant 'became totally disabled on the first day of May, 1963,' and compensation was set at $30 per week so long as the disability continues. Both these agreements were approved by the board on May 22, 1963. On July 15, 1963, claimant returned to work at a weekly wage of $72, and the parties entered into a supplemental agreement reciting the fact and declaring, 'We further agree that liability for temporary total disability ceased on July 15, 1963.' This agreement was approved by the board on August 5, 1963. After the claimant went back to work the second time he was discharged because he could not do heavy work which was his normal function. Since the employer had discharged the employee and refused to pay him wages or compensation, the claimant filed a claim based on a change in condition. The deputy director found that the claimant was totally disabled and ordered compensation paid from August 5, 1963, at the rate of $30 per week, to continue for a period not to exceed 400 weeks or $10,000, or until the claimant underwent a change in condition, and ordered the employer to pay all reasonable and necessary medical expenses as a result of the injury, not to exceed $1,500. On appeal to the board it adopted the findings of the deputy director as its own and made the deputy director's award the award of the board. On appeal to the Superior Court of Gwinnett County, the court affirmed the award of the board, except that the case was remanded to the board with direction that the award provide that compensation should recommence as of August 17, 1963, the time when claimant filed his application for change in condition, rather than that it recommence on August 5, 1963. The employer and insurance carrier excepted to the judgment of the superior court and contend that the evidence demands the finding that the employee was only partially disabled.

Woodruff, Savell, Lane & Williams, John M. Williams, Lawson Cox, Atlanta, for plaintiff in error.

Merritt & Pruitt, Glyndon C. Pruitt, Buford, for defendant in error.

FELTON, Chief Judge.

After the claimant was injured he went back to work twice before he was fired because he could not do the work he did before he was injured. The fact that each time the claimant went back to work he signed an agreement reciting 'that liability for temporary total disability ceased on' the day he returned to work and this agreement was approved by the board, does not amount to a finding or an award that total disability itself had ceased but merely that the employer, while the claimant was employed at his usual wage, was not liable for disability payments. Payments of compensation were due under the last approved agreement therefor and continue thereunder until changed because of a change in condition or otherwise except that no compensation is due while the employee is back at work receiving as much as before the injury. In this case the employee went back to work doing light work, was put back to heavy work and was discharged because he could not do it. In such case payments should have been resumed immediately upon his being discharged and paid until the employer moved for a change in the award due to a change in condition. Even though the claimant filed for a change in condition the burden was on the employer to show that the claimant was no longer totally disabled as shown by the approved agreement providing for compensation. While the claimant testified he could do insignificant light work and the doctor testified that he 'might' do selective light work, the claimant testified that all he was able to do was sit at home and do nothing and that he had not tried to get light work. This testimony authorized the finding that the claimant was still totally disabled. There is no evidence that the employee refused to perform light work suitable to his condition which the employer had offered him. While the court erred in dating the compensation due from the time the claimant filed for a hearing on change in condition, there was no cross bill excepting to that finding as error on the ground that the compensation should have been ordered from the time of the discharge of the claimant. General Accident, Fire & Life Assurance Corp. v. Teal, 100 Ga.App. 314, 111 S.E.2d 113; Complete Auto Transit, Inc. v. Davis, 101 Ga.App. 849, 115 S.E.2d 482; Liberty Mutual Ins. Co. v. Archer, 108 Ga.App. 563, 134 S.E.2d 204.

Rulings--to the effect that a finding that an employee has experienced a change in condition cannot be made retroactive to a time prior to the date when an application for a hearing on change in condition was filed with the board--do not apply in this case because here the employer was bound to continue payments under the agreement to pay compensation and the employee was under no duty to try to enforce his rights by filing for a hearing on the ground of change in his condition.

The court did not err in affirming the award granting compensation.

Judgment affirmed.

NICHOLS, P. J., BELL, P. J., HALL, and PANNELL, JJ., concur.

FRANKUM, JORDAN EBERHARDT and RUSSELL, JJ., dissent.

FRANKUM, Judge (dissenting).

After careful consideration of the record in this case and the authorities which I deem to be controlling, I must dissent from the judgment of affirmance and from the rulings made in the opinion. It is fundamental that in a workmen's compensation case the burden is upon the claimant in the first instance to show all of the essential facts necessary to entitled him to compensation. Johnson v. St. Paul-Mercury Ind. Co., 89 Ga.App. 1, 78 S.E.2d 262; Rivers v. Travelers Ins. Co., 93 Ga.App. 779(1), 92 S.E.2d 818; Department of Revenue v. Graham, 102 Ga.App. 756, 758(2), 117 S.E.2d 902. Where an award of compensation has been terminated in one of the ways provided by law, upon the hearing of an application by the employee for additional compensation on account of a change in condition, the burden is likewise upon such employee to show a change in his physical condition and earning capacity which will authorize the award of additional compensation. Baker v. Liberty Mutual Ins. Co., 103 Ga.App. 100(2), 118 S.E.2d 386.

The majority opinion, while not expressly so stating, in effect authorizes the board to completely disregard a previously...