Universal Ceramics, Inc. v. Watson
| Decision Date | 27 November 1985 |
| Docket Number | No. 70493,70493 |
| Citation | 177 Ga.App. 345,339 S.E.2d 304 |
| Parties | UNIVERSAL CERAMICS, INC., et al. v. WATSON. |
| Court | Georgia Court of Appeals |
Mark S. Gannon, Benjamin H. Terry, Atlanta, for appellants.
Miles L. Gammage, Jr., Cedartown, for appellee.
On November 13, 1981 while employed by appellant, claimant-appellee Watson suffered an on-the-job injury which resulted in the amputation of his left arm. At the time he was injured, claimant worked in the maintenance section for $4.50 per hour. On May 11, 1982 claimant returned to appellant's employ performing a job in the stock room for $3.78 per hour. The job had been specially created for claimant by his rehabilitation nurse in cooperation with the management of appellant. By award dated June 29, 1982, the State Board of Workers' Compensation approved a lump sum payment of $18,586.94 to claimant for 90 percent permanent partial disability to his left arm. On August 11, 1982 claimant quit working for appellant.
After a January 4, 1983 hearing held at claimant's request, the Administrative Law Judge found, inter alia, that claimant left this job for treatment of a gastro-intestinal disorder which was aggravated by his anxiety in returning to work around the place where he was injured. Treatment for this gastro-intestinal problem resulted in a psychotic reaction with resulting psychiatric treatment. The ALJ found that due to this treatment, claimant was totally disabled to work from August 11, 1982 until the date of the hearing on January 4, 1983. Further, claimant underwent a change in condition from total disability to no disability on January 4, 1983 at the hearing "when he again knew that work in keeping with his physical and mental condition was continually available for him." Based upon the disparity in salary suffered by claimant in his job as stock room attendant, the ALJ found partial economic disability from May 11, 1982 to August 11, 1982 and found $19.20 per week for that time due claimant. Also, appellant was ordered to pay claimant for total disability during the period of administration and recuperation for a nerve blockage scheduled for January 29, 1983. The portions set forth herein were adopted by the board with the addition of the following language in the award: "Employer/insurer is entitled to credit for overpayments of temporary total and temporary partial against any temporary total or permanent partial benefits to which claimant may become entitled in the future." No appeal was taken.
Claimant did not return to work for appellant. However, on October 24, 1983 he attempted to return to the stock room job but it had been abolished. Upon the request of claimant a hearing was held to determine his change in condition.
The ALJ took judicial notice of the prior awards and found that from January 4, 1983 when the stock room job was available to him to October 24, 1983, claimant had no disability. However, when the stock room job was no longer available on October 24, 1983, claimant suffered a total inability to work until February 14, 1984 when he found employment as a security guard at a salary of $3.35 per hour. On February 14, 1984 the claimant underwent a change in condition from total inability to work to partial disability because he was paid at a reduced hourly rate in his job as a security guard. The claimant was, thus, awarded income benefits for total disability from October 24, 1983 to February 14, 1984 and partial disability benefits from February 14, 1984 until terminated by law. Further, the ALJ's award stated: "The employer/insurer are authorized to take credits for overpayments of temporary total and temporary partial disability benefits as outlined in the Full Board's award [set forth supra]." The ALJ's award was adopted and made the award of the board. The superior court affirmed the board's award. Appellant's application for discretionary appeal was granted by this court.
1. Appellant asserts that the superior court erred in affirming the board's award because the ALJ's first award is res judicata as it "is premised on a complete medical cure." Thus, appellant argues, benefits "may only be re-instated upon a showing of a physical change for the worse." We find this enumeration to be totally without merit, lacking support in either the facts or the applicable law. First, there is nothing in the 1983 ALJ's order as modified by the board to suggest that claimant had been completely medically cured. While it is true that a basis of the first award was claimant's gastro-intestinal disorder, it is equally so that this disorder was aggravated by his anxiety in returning to the place of his injury. Appellant apparently overlooks the facts that the injury suffered by claimant was the amputation of his left arm and that the ALJ also authorized benefits for the nerve blockage scheduled to be done on the remainder of claimant's arm. Moreover, the real basis for this award was the availability of suitable work on January 4, 1983. With this in mind, it is difficult to understand appellant's claim that the first award found claimant to be completely medically cured.
2. In a second, but related, enumeration of error, appellant contends that an employer is not perpetually responsible for keeping open an offer of suitable employment. We agree with appellant that under our present law an employer can support the termination of benefits based upon claimant's change in condition by showing that the claimant is able to return to work albeit with restrictions and that work suitable to claimant's restrictions is available to him. See Peterson/Puritan, Inc. v. Day, 157 Ga.App. 827, 278 S.E.2d 674 (1981). The opinions in Pierce v. AAA Cabinet Co., 173 Ga.App. 463, 326 S.E.2d 575 (1985), and Williams Bros. Lumber Co. v. Magee, 162 Ga.App. 865, 292 S.E.2d 477 (1982) are wholly inapposite to the factual posture of this case because claimant herein had not fully recovered from the on-the-job injury. In other words, he still had physical restrictions on the work he could perform. Compare Pierce, supra. There is further no finding that claimant's restrictions or remaining physical disability was caused by an intervening accident after he had recovered from the on-the-job injury. Compare Williams Bros., supra.
In the case before us now, it is unquestionable that claimant has and will, in all likelihood, always have some restrictions on the type of work he can perform due to the amputation of his left arm. The standards of Peterson/Puritan, supra, are, therefore, applicable, as is OCGA § 34-9-240 which provides: "If an injured employee refuses employment procured for him and suitable to his capacity, he shall not be entitled to any compensation at any time during the continuance of such refusal unless in the opinion of the board such refusal was justified." The board, in adopting and affirming the most recent award of the ALJ, complied with the foregoing by declining to direct that benefits be paid to claimant during the period of his refusal, from January 4, 1983 when the stock room job was available to him until October 24, 1983 when the job was no...
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