Pacific Emp. Ins. Co. v. Shoemake, 39278
| Citation | 124 S.E.2d 653,105 Ga.App. 432 |
| Decision Date | 01 March 1962 |
| Docket Number | No. 3,No. 39278,39278,3 |
| Parties | PACIFIC EMPLOYERS INSURANCE COMPANY et al. v. P. J. SHOEMAKE |
| Court | United States Court of Appeals (Georgia) |
Smith, Field, Ringel, Martin & Carr, Palmer H. Ansley, Atlanta, for plaintiffs in error.
Murphy & Murphy, Thomas B. Murphy, Bremen, for defendant in error.
Syllabus Opinion by the Court.
1. Except in cases involving the loss of or loss of use of a member arising under provisions of Code, § 114-406, the Workmen's Compensation Act does not contemplate the payment of compensation to an employee except in cases of actual total or partial disability. Code Ann. § 114-404.
2. However, an approved agreement or an award of the board providing for the payment of compensation on account of total disability is res judicata as to the existence of such disability and the compensation due thereunder until such time as it is set aside either by an approved final settlement receipt or by a subsequent award entered under the provisions of Code, § 114-706 finding a change in condition. Code, §§ 114-106, 114-709. Hartford Accident & Indemnity Co. v. Brennan, 85 Ga.App. 163, 68 S.E.2d 170; National Surety Corp. v. Nelson, 99 Ga.App. 95, 97(2), 107 S.E.2d 718; General Accident Fire & Life Ins. Corp. v. Teal, 100 Ga.App. 314(1), 111 S.E.2d 113; Complete Auto Transit Inc. v. Davis, 101 Ga.App. 849, 115 S.E.2d 482; Bituminous Casualty Corp. v. Vaughn, 103 Ga.App. 660, 120 S.E.2d 190.
3. Under the foregoing authorities, the employer, or insurance carrier, may not unilaterally discontinue payments of compensation being made pursuant to an approved agreement or an award of the board without first filing application with the board to discontinue the payment of compensation. American Casualty Co. v. Herron, 102 Ga.App. 658, 661(2), 117 S.E.2d 172. Under Rule 17 of the Rules and Regulations of the State Board of Workmen's Compensation as published by the authority of the board, the board may in its discretion permit the discontinuance of compensation payments pending hearing of such application therefor. It is the application, filed on behalf of either party, which gives the board jurisdiction to enter the subsequent award, modifying or setting aside the original award. Under the principle that such subsequent award cannot be entered retroactively (South v. Indemnity Ins. Co., 39 Ga.App. 47, 48(4), 146 S.E. 45), any award entered pursuant to such application cannot be effective to modify or set...
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...Co., 39 Ga.App. 47(4), 146 S.E. 45; National Surety Corp. v. Nelson, 99 Ga.App. 95, 98, 107 S.E.2d 718; Pacific Employers Ins. Co. v. Shoemake, 105 Ga.App. 432(3), 124 S.E.2d 653; Home Accident Ins. Co. v. McNair, 173 Ga. 566, 161 S.E. 131; Complete Auto Transit, Inc. v. Davis, 106 Ga.App. ......
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...and the compensation due thereunder."' 228 Ga. App. at 280, 491 S.E.2d at 494 (quoting Pacific Employers Ins. Co. v. Shoemake, 105 Ga. App. 432, 432, 124 S.E.2d 653, 654 (1962)). 43. The court relied upon O.C.G.A. section 34-9-104(a) as controlling the "change in condition" issue. "Although......