New Amsterdam Cas. Co. v. Brown

• Decision Date: 07 June 1950
• Docket Number: No. 2,No. 33093,33093,2
• Citation: 81 Ga.App. 790,60 S.E.2d 245
• Parties: NEW AMSTERDAM CASUALTY CO. et al. v. BROWN
• Court: Georgia Court of Appeals

Page 245

60 S.E.2d 245

81 Ga.App. 790

NEW AMSTERDAM CASUALTY CO. et al. v. BROWN.

No. 33093.

Court of Appeals of Georgia, Division No. 2.

June 7, 1950.

Rehearing Denied June 21, 1950.

Syllabus by the Court

1. Where an injury is sustained by an employee under the provisions of the Workmen's Compensation Act which results in total loss of use of a leg and total incapacity to work at that time, he is not entitled to beneifts under Code, § 114-404, since the injury is scheduled under Code, § 114-406(o). He is entitled, under Code, § 114-406, to compensation for total incapacity not exceeding ten weeks; and if there is then a total loss of use of the leg, he is entitled to compensation for the loss of the use of the leg for a period not to exceed 175 weeks. If during such time there is an improvement in the injured member resulting in partial rather than total loss of use thereof, the compensation may on proper application be diminished in accordance with this code section and Code, § 114-709. See Travelers Insurance Co. v. Reid, 49 Ga.App. 317, 175 S.E. 414; Continental Casualty Co. v. Haynie, 182 Ga. 608, 186 S.E. 683.

2. (a). Where, as here, it appears that the employee did not work during three of the 13 weeks immediately preceding his accident, that he worked only one day of another week and only two days each in two other weeks, such employee has not worked during substantially the whole of 13 weeks, and his average weekly wage could therefore not be computed according to the provisions of Subsection (1) of Code Supp. § 114-402.

(b) Where subsections (1) and (2) are inapplicable in arriving at the average weekly wage under the provisions of Code Supp. § 114-402, the Director has no alternative but to apply the provisions of Subsection (3) there so as to use the full time weekly wage of the injury employee as his average weekly wage. Where wages are paid on an hourly basis, the full time weekly wage is the wae per hour multiplied by the number of hours shown by the evidence to constitute a full time work week for such employee under his contract of employment.

The defendant in error, Willie L. Brown, herein referred to as the claimant, was an employee of M. W. O'Kelley & Co., herein referred to as the employer. On March 14, 1949, the claimant received an injury to his left knee due to an accident arising out of and in the course of his employment. He claimed compensation against the employer and its insurance carrier, the New Amsterdam Casualty Company. This claim resulted in an agreement between the parties entered into on August 9, 1949, providing for the payment of compensation of one half of a stipulated average weekly wage $36.00 until terminated in accordance with the provisions of the Workmen's Compensation Law of this State. This represents the maximum amount for total disability per week, and also for total loss or loss of use of a member. No objection was made to this part of the agreement, but it also recited another cause of disability than that due to injury to the leg. The agreement was approved by the Board of Workmen's Compensation as provided by Code, § 114-106. Subsequently, the employer and insurance carrier filed an application with the Board seeking to correct the agreement so as to strike the other cause of disability recited therein and thus leave the agreement reciting as the cause of disability only the injury to the knee, and also to correct the agreement by changing the figure recited therein as the average weekly wage of the claimant. At the hearing it was agreed between counsel that the agreement should be revised so as to strike the other cause of disability therein recited and leave therein as the only cause of disability the injury to the knee. As to the amount of the average weekly wage, all facts were stipulated, including the hours the claimant worked for a number of weeks preceding the injury and the wages received per hour. Under the application for hearing made by the employer and insurance carrier no other phase of the case was in issue, the previously approved agreement standing in lieu of the award. On October 6, 1949, after hearing, an award was entered allowing compensation at the rate of $17.10 per week for temporary total disability beginning 7 days after the date of injury and continuing during the period of disability. It was further stipulated that during the 13 weeks immediately preceding the injury the employee's wages had been 60 cents per hour, and that his working time per week was as follows: 1st week, 28 hours; 2nd, 50 hours; 3rd, 38 hours; 4th, 49 hours; 5th, 12 1/2 hours; 6th, 28 1/2 hours; 7th, 19 Hours, 8th, none; 9th, none; 10th, 8 hours; 11th, none; 12th, 13 hours; 13th 16 hours. It further appears that this work time represented all work available to the employee and his fellow workers because, due to weather conditions and various shortages, it had not been possible to work full time; that a full work day was 9 1/2 hours; that no overtime was paid, and that there was occasional work on Saturdays, sometimes due to the press of a contract and on other occasions when the weath had been bad and it had been impossible to work more than two or three days out of the week.

The award of the single Director was appealed to the Superior Court of Crisp County on grounds as follows: that it was error to award temporary total disability during a period longer than ten weeks after the injury, because the injury was scheduled under the provisions of Code § 114-406(o), and that it was error to use the full time weekly wage as computed under Code § 114-402(3), inasmuch as the claimant had worked substantially the whole of 13 weeks immediately preceding his injury. The judgment of the Superior Court affirming the award of the single Director is here assigned as error.

C. Baxter Jones, Jr., Atlanta, Powell, Goldstein, Frazer & Murphy, Atlanta, for plaintiffs in error.

Benjamin Zeesman, Cordele, for defendant in error.

TOWNSEND, Judge (after stating the foregoing facts).

1. The first question for decision is whether the Director erred in entering an award allowing compensation at a stated sum per week for 'temporary total disability beginning 7 days after the date of injury and continuing during the period of disability.' Code Supp. § 114-404 provides as follows: 'When the incapacity to work resulting from an injury is total, the employer shall pay or cause to be paid, as hereinafter provided for, to the employee during such total incapacity a weekly compensation equal to one-half his average wages * * * and in no case shall the period covered by such compensation be greater than 350 weeks, nor shall the total amount of compensation exceed $7,000.' This section is inapplicable to any injury included in the schedule of specific injuries set out in § 114-406, compensation for which, in the amounts provided therein, is in lieu of any other compensation. However, Code, § 114-406 does provide for the payment of compensation during a 10 week healing period where total incapacity to work exists for that long a time. In addition thereto, the loss of a leg, scheduled in subsection (o) thereof, is compensable at the rate of 50% of the average weekly wages for a period not exceeding 175 weeks. This section also provides that total loss of use of a member shall be considered as equivalent to the loss of such member. The claimant lost the use of his leg due to the injury to his knee. Therefore, under Code, § 114-406, he was entitled to 50% of his average weekly wage for a period of 10 weeks beginning 7 days after the injury. Thereafter, under the agreement, he was entitled to a maximum of 50% of his average weekly wages for 175 weeks, providing the leg remained totally incapacitated for that length of time. On the other...