Senters v. Wright & Lopez, Inc., 22769

• Citation: 220 Ga. 611,140 S.E.2d 904
• Decision Date: 04 February 1965
• Docket Number: No. 22769,22769
• Parties: Miner E. SENTERS v. WRIGHT & LOPEZ, INC., et al.
• Court: Supreme Court of Georgia

Page 904

140 S.E.2d 904

220 Ga. 611

Miner E. SENTERS v. WRIGHT & LOPEZ, INC., et al.

No. 22769.

Supreme Court of Georgia.

Feb. 4, 1965.

Syllabus by the Court

Where, as here, a party is given a choice of whether he shall come under the provisions of the Workmen's Compensation Act and does not elect to accept the privilege of rejecting the Act, and then suffers an injury which is compensable under the Act and invokes a judgment from the Workmen's Compensation Board against his employer and his insurance carrier, which becomes a final binding judgment in his favor for benefits provided by the Act, he has waived any privilege he may have had to deny the constitutionality of the Act under which the benefits are payable and he will be estopped to do so.

This case arises from an appeal to Hall Superior Court from an award of the State Board of Workmen's Compensation granting subrogation rights to the insurance carrier against the net proceeds of a settlement obtained by the claimant from third parties for tort liability arising out of the same accident in which compensation was awarded and paid. The grounds of the appeal were that Section 4, Ga.L.1963, pp. 141-143, striking Code § 114-403, and substituting therefor a new § 114-403 violates the due process clauses of the Federal and State Constitutions and denies equal protection under the 14th Amendment to the Constitution of the United States.

The exception is to a judgment of the trial court holding that the Act is not violative of the due process or the equal protection clauses of either the State or Federal Constitutions and denying the appeal.

James I. Parker, Cedartown, for plaintiff in error.

O'Kelley, Hopkins & Van Gerpen, H. Lowell Hopkins, Atlanta, for defendants in error.

MOBLEY, Justice.

1. As pointed out by the able trial judge, difficulty may be found in understanding way compensation payments, which under the Act cover only lost wages or salary and necessary medical expenses have been subrogated to entire judgments in tort suits which might include damages for pain and suffering, property damages, loss of wages in excess of weekly compensation, and other items entirely unrelated to those losses reimbursed by workmen's compensation. In fact, in this case, the settlement of the tort claim for $9,000, of which $3,000 went to payment of attorney's fees for procuring the settlement, will apparently be entirely consumed by the reimbursement of the compensation insurance carrier, leaving nothing to compensate the employee for his pain and suffering, excess loss of earnings and permanent disability. Furthermore, the compensation carrier shares no part of the expense of procuring the settlement. However, any injustice done the injured employee addresses itself to the wisdom and sense of fairness of the General Assembly, who created the situation.

Claimant attacks the constitutionality of Sec. 4, Ga.L.1963, pp. 141, 145, on the grounds that it denies him due process of law as provided by the Constitution of Georgia and of the United States and equal protection of the law under the 14th Amendment of the United States Constitution. The statute complained of permits an employer or his insurance carrier to be subrogated to the rights of an injured employee against a third party tortfeasor to the extent of compensation, medical expenses and funeral expenses which he is called upon to pay and creates a lien in favor of the employer against the net recovery or settlement recovered by the employee. The effect of the 1963 amendment to Code § 114-403 was to extend subrogation rights to settlements as well as recoveries by judgment.

In the opinion we entertain of this case, we are not able to reach the constitutional question. Whether an employer or employee is subject to the Workmen's Compensation Act of this State is a matter of election or choice with him. Section 114-employee * * * shall be presumed to have accepted the provisions of this Title, agreeing respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of employment, and shall be bound thereby, unless, prior to any accident resulting in injury or death, notice to the contrary shall be given in the manner herein provided * * *.' This employee had not rejected the Act prior to his injury. He was covered by the Act, and the Workmen's Compensation Board made an award of compensation to him for medical expenses and loss of Wages, as provided in the Act. Judgment of the Board in his behalf was final, and the employer and his carrier are...