Gen. Accident Fire & Life Assur. Corp. Etal v. Mcdaniel, 21136.

• Decision Date: 17 July 1931
• Docket Number: No. 21136.,21136.
• Citation: 44 Ga.App. 40,160 S.E. 554
• Court: Georgia Court of Appeals
• Parties: GENERAL ACCIDENT FIRE & LIFE ASSUR. CORPORATION etal. v. McDANIEL.

44 Ga.App. 40

160 S.E. 554

GENERAL ACCIDENT FIRE & LIFE ASSUR. CORPORATION etal.

v.McDANIEL.

No. 21136.

Court of Appeals of Georgia,

Division No. 2.

July 17, 1931.

Rehearing Denied Sept. 18, 1931.

Syllabus by Editorial Staff.

Error from Superior Court, Chatham County; Peter W. Meldrim, Judge.

Proceedings under the Workmen's Compensation Act by Lamar McDaniel, opposed by the General Accident Eire & Life Assurance Corporation and another. An award of the Commissioner allowing compensation was affirmed by the full Industrial Commission, and the Superior Court entered judgment affirming the award of the full commission, and the insurance carrier and another bring error.

Reversed.

Statement of facts by JENKINS, P. J.

McDaniel, while in the employ of the Eastern Carolina Service Corporation, sustained an injury which resulted in a hernia. He applied for compensation, and was awarded compensation as for total disability from May 16, 1929, to September 1, 1929. Beginning September 1, 1929, the award was for $1.875 per week, or one-half the difference between his former wage and the amount he was then earning, to be paid during his partial disability, and not exceeding three hundred weeks from the date of the accident. It appears from the record that subsequent to his injury McDaniel was operated upon for the hernia, and that after the operation the hernia recurred. In May, 1930, McDaniel filed an application to reopen his claim alleging that he was unable to perform any sort of work, however light, which required physical exertion, and asking that the award then running in his favor be increased. Upon this application the commission had a hearing, and on July 7, 1930, Commissioner Whitaker entered an award increasing McDaniel's compensation, effective from April 18, 1930, to $7,875, the amount payable for total disability, directing that the award run during such disability, not to exceed three hundred weeks from the date of the accident. The insurance carrier and the employer appealed from this award to the full commission, which affirmed the award of Commis-sioner Whitaker, and exception is here taken to the judgment of the superior court affirming the award of the full commission. The claimant testified, upon the hearing, that he had a position paying $1,250 per week, which he lost on April 17, 1930, on account of the closing down of the establishment in which he was working. He further testified as to his inability to do heavy work or any sort of lifting. There was medical testimony tending to establish the alleged change in the claimant's condition, and the more aggravated condition of the hernia. Commissioner Whitaker, in entering the award of compensation as for total disability from April 17, 1930, said: "The commissioner having already found that this claimant has a recurrence of a hernia as the result of an accident arising out of and in the course of his employment, the only question for determination at this time is whether or not he is entitled to compensation due to his present disability. The evidence as submitted by the claimant, and is undisputed, shows that he has not been physically able nor has he worked since April 17, 1930. It also shows that he is partially disabled, if not totally disabled, from engaging in competitive labor. He is, therefore, entitled to compensation under section 31 of the compensation act so long as he is unable to return to his former occupation, or unable to find a position suitable to his present impaired physical condition, at fifty per cent of his average weekly wages at the time of the accident." The full commission, in its award affirming the previous award of Commissioner Whitaker, said: "This case is one coming under section 31 of the compensation act. The employee had a hernia and underwent an operation for the cure of the hernia. Before he was able to return to work following the operation the hernia recurred and it was not advisable to again operate upon him. He was awarded compensation for temporary total disability until he procured selected employment for himself, and he was then awarded compensation for partial disability as provided in section 31. He worked in this employment until April 17, 1930. Since that date he has been unable to find work suitable to his impaired physical condition. Compensation is, therefore, payable under section 31 at the same rate that he would receive for temporary total disability because he is unable to earn. The Court of Appeals has held that under section 31 compensation must be based entirely on the earnings of the employee. Austin Bros. Bridge Co. v. Whitmire, 31 Ga. App. 561, 121 S. E. 345; American Mutual Liability Ins. Co. v. Hampton, 33 Ga. App. 476, 127 S. E. 155. The findings of the hearing commissioner are amply supported by the evidence. The conclusions of law and findings of fact of Commissioner Whitaker are therefore approved."

E. B. Lovell, of Atlanta, and Connerat & Hunter, of Savannah, for plaintiffs in error.

Don H. Clark, of Savannah, for defendant in error.

Syllabus Opinion by the Court.

JENKINS, P. J.

1. Under the provisions of sections 30 and 31 of the Workmen's Compensation Act (Laws 1920, pp. 167, 183, as amended by Laws 1922, p....