Globe Indem. Co v. Lank-ford

• Decision Date: 20 July 1926
• Docket Number: (No. 16877.)
• Citation: Globe Indem. Co v. Lank-ford, 134 S.E. 357, 35 Ga.App. 599 (Ga. App. 1926)
• Parties: GLOBE INDEMNITY CO. et al. v. LANK-FORD.
• Court: Georgia Court of Appeals

35 Ga.App. 599

134 S.E. 357

GLOBE INDEMNITY CO. et al.

v.LANK-FORD.

(No. 16877.)

Court of Appeals of Georgia, Division No. 2.

July 20, 1926.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; G. L. Bell, Judge.

Proceeding under the Workmen's Compensation Act by H. L. Lankford, claimant, opposed by the Globe Indemnity Company, the insurance carrier, and others. Order of the Industrial Commission denying an award because of change in condition was reversed by the superior court, and the insurance carrier and the employer bring error. Affirmed.

Bryan & Middlebrooks, of Atlanta, for plaintiffs in error.

B. P. Gambrell and Jas. A. Miller, both of Atlanta, for defendant in error.

BELL, J. For an injury received by him on June 28, 1923, the Industrial Commission awarded to H. L. Lankford compensation at $15 per week for not exceeding 350 weeks. After receiving the weekly payments for 86²/₃ weeks, he applied to the commission for the approval of an agreement between him and his employer for a lump-sum settlement of any and all compensation that might be due to him in the future. The application coming on to be heard on February 17, 1925, the commission made the following award thereon:

"Application for a lump-sum settlement was made in this case, whereby the insurer agrees to pay the sum of $160 in a lump-sum settlement. It appearing that the payment of this amount is equal to the value of the probable future payments, the commission hereby approves this settlement. The insurance carrier will pay H. L. Lankford the sum of $160, in full and complete settlement of any disability that H. L. Lankford may now have or in the future may have as a result of the injury."

Note that, from the amount of this settlement and the language of the order, it must have been believed at that time that the disability would continue not longer than approximately 11 weeks, although under the award the compensation was payable for a then remaining period of not exceeding 263¹/₃ weeks. In June, 1925, the employee made to the commission an application for review of the settlement, on the ground of a change in condition. Upon this application the commission passed the following order:

"The commission, upon application of claimant, after a formal hearing, having rendered judgment commuting the weekly payments to a lump-sum payment, and having thereby judicially determined that the amount of said lump-sum award was equal to the value of the probable future payments, and the judgment expressly providing that the payment by the insurance [carrier] should be in full and complete settlement of any present and future disability, and, theclaimant having accepted this award and received the payment therein provided, the judgment rendered on February 17, 1925, is final and conclusive, and evidence will not be heard to determine whether there has been a change of condition of said claimant since said award."

This order was reversed by the superior court on an appeal by the employee, and the employer and the insurance carrier excepted. The only point raised by the plaintiffs in error is that the application for review was barred by the nature and character of the previous settlement.

According to our interpretation of the several pertinent provisions of the Compensation Act (Ga. Laws 1920, p. 167), an employee cannot be deprived of the compensation to which he is entitled thereunder by any agreement between himself and his employer, notwithstanding its approval by the Industrial Commission. Section 7 of the act provides:

"That no contract or agreement, written or implied, no rule, regulation or other device, shall in any manner operate to relieve any employer in whole or in part of any obligation created by this act, except as herein otherwise expressly provided."

Section 19 provides that no agreement of settlement shall be binding unless approved by the commission; but the commission itself is without power to foreclose the rights of the employee upon any terms other than those prescribed in the act. See sections 43, 44, and 45.

"The Georgia Industrial Commission is not a court of general jurisdiction, nor even of limited common-law jurisdiction, but it is an Industrial Commission, made so by express terms of the act of the Legislature to administer its provisions as provided therein. As such administrative commission it possesses only such jurisdiction, powers, and authority as are conferred upon it by the Legislature, or such as arise therefrom by necessary implication to carry out the full and complete exercise of the powers granted." Gravitt v. Ga. Casualty Co., 158 Ga. 613, 123 S. E. 897.

The lump-sum settlement in this case, as ought to be true in every case, represented the converted cash value of the weekly installments to which the employee would be entitled, considering his then apparent condition. The commission, of course, had the authority to approve the settlement. But if it sought to adjudicate against a change in condition or to determine that such and such a change would or would not take place, it exceeded its powers, because under section 45 the employee is entitled under certain conditions (see U. S. Casualty Co. v. Smith, 162 Ga. —, 133 S. E. 851, No. 5106; Gravitt v. Ga. Casualty Co., supra), to a review of any award or settlement upon a change of condition. If it should appear that, since the settlement or award the claimant has undergone a change of condition, due to his injury, for which he should be compensated as by weekly payments for a longer period or in a greater amount than was contemplated and represented in the lump sum received, the settlement would not be conclusive, even though it be solemnly approved by an order of the Industrial Commission. It is not binding, and no action of the commission can make it so. The lump sum agreed on must be fixed at an amount which will equal the total sum of the probable future payments capitalized at their present value upon the basis of interest at 5 per cent. per annum. See section 43. But, if it should subsequently develop that the "probable future payments" should be extended for a longer time or increased to a larger amount than the commission estimated at the time of the settlement, its judgment, based on probability, will be subject to review and to be superseded by a new award, based on the actual facts, increasing the compensation previously awarded or agreed upon. Section 45.

Thus if, while an employee is receiving compensation under an award calling for not exceeding 263 further weekly installments, it should appear from his improving condition that his disability would probably cease in 11 weeks, so that at the end of this period the payments should be altogether stopped, and if the commission should thereupon approve an agreement between the parties for a settlement in cash of the 11 probable weekly payments, the employee would not be concluded if it should subsequently be established that the probability of his restoration was unfounded and that in truth his compensation should not have terminated at the expiration of such last-named period. The commission's findings, when supported by any evidence, are conclusive of all questions of fact with which it had authority to deal, but it cannot refuse to make a finding as to a change of condition merely because of a prior approved settlement. An appeal for review upon the ground of such change presents a quasi new case, although it is not a new proceeding, and it is the duty of the commission to examine into it, if the matter sought to be reviewed has not been judicially determined or become res adjudicata and if the commission still has jurisdiction of the subject-matter. U. S. Casualty Co. v. Smith, supra.

It was said in that case that section 45 "expressly provides for compensation in a case where there has been a change in the condition of the employee; and this necessarily extends jurisdiction of the commission to review a settlement agreement or its original award." We are not to be understood as holding that the commission must give a hearing on the merits of every such application for review. It might perhaps be obliged to do so only when a preliminary inquiry discloses that the application is probably meritorious; and, if the application is heard, it will be within the exclusive province of...