Home Acc. Ins. Co. v. McNair

• Citation: 161 S.E. 131,173 Ga. 566
• Decision Date: 15 October 1931
• Docket Number: 8322.
• Parties: HOME ACCIDENT INS. CO. et al. v. McNAIR.
• Court: Georgia Supreme Court

161 S.E. 131

173 Ga. 566

HOME ACCIDENT INS. CO. et al. v. McNAIR.

No. 8322.

Supreme Court of Georgia

October 15, 1931

Syllabus by the Court.

Industrial Commission cannot review award of compensation unless change in employee's condition has occurred (Laws 1920, p. 191 § 45).

Original compensation award is conclusive as to extent of disability and as to continuance thereof, until superseded by new award (Laws 1920, p. 191, § 45).

Industrial Commission reviewing award for change of condition cannot make new award retroactive or treat money already paid under original award as compensating employee for amount of new award (Laws 1920, p. 191, § 45).

Maximum and minimum limitation on compensation payments for total disability held inapplicable to award of compensation to employee for permanent partial industrial handicap (Laws 1920, p. 183, § 30, as amended by Laws 1922 p. 190,§ 3; Laws 1920, p. 180, § 32, as amended by Laws 1923 p. 95, § 3).

1. An award by the Industrial Commission of compensation to an employee for the total loss of the use of a leg, under section 32(r) of the Workmen's Compensation Act as amended, is subject to review by that body on account of a change in the condition of the employee; and, on such review, the commission may make an award ending, diminishing, or increasing the compensation previously awarded, subject to certain restrictions.

(a) There can be no review of the award unless there has occurred a change in the condition of the employee. Where such change has taken place, the award on review must be made subject to the maximum and minimum compensation provided by this act, and it cannot affect the original award as to any moneys paid thereunder.

(b) The original award is conclusive on both the employer and employee as to the extent of the disability of the employee, as found by the commission in such award, and as to the continuance thereof until superseded by a new award.

(c) On review, the Industrial Commission cannot make a retroactive award to be effective as of the date of the original award; and cannot treat money as paid under the original award as compensating the employee for compensation awarded to him on review, upon the theory that the compensation received under the original award was sufficient to pay the compensation which would be due the employee for a permanent partial loss of capacity from the date of the original award to the date of the rendition of the award on review.

2. The provision in section 32 of the Workman's Compensation Act, that "The weekly compensation payments referred to in this section shall be subject to the same limitations as to maximum and minimum as set out in Section Thirty," applies only to awards granting compensation for total incapacity for work under said section, and not to an award of compensation to the employee for a permanent partial industrial handicap, such as the partial loss of the use of a leg.

Certified Questions from Court of Appeals.

Proceedings under the Workmen's Compensation Act by G. H. McNair, opposed by the Home Accident Insurance Company and others. The Industrial Commission awarded compensation, and the insurance carrier and employer bring error, and the Court of Appeals requests instruction upon certain questions.

Questions answered.

Maximum and minimum limitation on compensation payments for total disability held inapplicable to award of compensation to employee for permanent partial industrial handicap. Laws 1920, p. 183, § 30, as amended by Laws 1922, p. 190,§ 3; Laws 1920, p. 180, § 32, as amended by Laws 1923, p. 95, § 3.

Workers' Compensation 1791

Industrial Commission cannot review award of compensation unless change in employee's condition has occurred. Laws 1920, p. 191, § 45.

The Court of Appeals requested instruction upon the following questions: "Where the industrial commission has awarded an employee compensation for the total loss of the use of a member, payable weekly in installments equal to one half of his average weekly wages, as provided in section 32 of the Workmen's Compensation Act (Ga. L. 1920, p. 167) as amended, and a portion of the compensation thus awarded has been actually paid to the employee, and where, upon a review of this award upon the ground of a change in condition as provided in section 45 of the act, the commission finds that the employee has suffered only a partial loss of the use of the member, and the compensation to which the employee is entitled for such partial loss, under the facts as found by the commission on a review of the first award, is equal to, or less than, that which was actually paid to and collected by the employee under the first award, can the commission, upon this review of the first award, treat the compensation, which was actually paid to the employee and collected by him under the first award, as a payment of the total amount of compensation due the employee for the partial loss of the use of his member as found by the commission on review, and deny further compensation; or must the commission, on a review, treat the former award as an adjudication of the employee's right to recover, for the total loss of the use of his member, the compensation which had been actually paid to and collected by him under that award, and is the employee, in addition to these payments so made and collected for a total disability, entitled to additional compensation to be paid for the partial loss of the use of his member, either for the total number of weeks to which an employee in his situation is entitled under section 32 of the act, or for such number of weeks less the number of weeks for which the employee had received compensation for a total disability under the former award? See South v. Indemnity Ins. Co., 39 Ga.App. 47, 146 S.E. 45. If the employee, in addition to the compensation already paid him for the total loss of the use of this member, is entitled to compensation for the partial loss of the use of the member for a specific number of weeks, is the commission, where the per cent. of the employee's wages when computed as provided in section 32(r) as the amount of weekly wages payable for the partial loss of the member is $3.00, authorized to award, as compensation for the particular loss, the sum of $4.00 a week for this number of weeks; or if the commission awards $4.00 as the weekly compensation for the partial loss of the use of the member, must the number of weeks for which such payment of $4.00 is to be paid be so reduced that the total compensation paid at the rate of $4.00 per week would equal the total compensation payable at the rate of $3.00 per week for the number of weeks as found by the commission to which the employee is entitled to compensation for the partial loss? See Richardson v. Maryland Casualty Co., 41 Ga.App. 520, 153 S.E. 524. See also in this case the dissenting opinion expressing the views of Judge Jenkins.

"For illustration: An employee, whose average weekly wages are $12.00, is awarded compensation, as provided in section 32(o) of the Workmen's Compensation Act, in the sum of $6.00 a week for one hundred and seventy-five weeks, for the total loss of the use of his leg. After the employee receives and collects one hundred and twenty weekly installments of $6.00 each payable as compensation thus awarded, making a total of $720, the industrial commission, on application by the employer upon the ground of a change in condition as provided in section 45 of the act, finds that the employee has a fifty per cent. loss of the use of the leg. This being a fifty per cent. impairment, the employee, under section 32 of the act, if no other consideration affects the award, is entitled to compensation at $3.00 (one half of $6.00) a week for one hundred and seventy-five weeks, making a total compensation of $525, which is less than the total amount $720) which has been paid to the employee and collected by him under the first award. The difference between the number of weeks paid under the first award, viz., one hundred and twenty, and the number of weeks payable for the partial loss of the use of a leg, as provided in section 32(o), viz., one hundred and seventy-five weeks, is fifty-five weeks. The industrial commission, on review of the first award, awards compensation at the rate of $4.00 per week for fifty-five weeks."

Brock Sparks & Russell, of Macon, for plaintiffs in error.

Geo. H Carswell and Victor Davidson, both of Irwinton, and J. J....