Walker v. Continental Ins. Co.
| Citation | 142 Ga.App. 115,235 S.E.2d 389 |
| Decision Date | 15 April 1977 |
| Docket Number | No. 53547,No. 3,53547,3 |
| Parties | W. G. WALKER v. CONTINENTAL INSURANCE COMPANY et al |
| Court | United States Court of Appeals (Georgia) |
Jack K. Bohler, East Point, for appellant.
Swift, Currie, McGhee & Hiers, George L. Pope, Jr., Atlanta, for appellees.
This is an appeal from the denial of compensation to appellant Walker by the Board of Workmen's Compensation, as affirmed by a superior court. The two principal contentions by Walker are that the board was without authority to vacate a previously approved compensation agreement, and that there was evidence that the injury to his foot not only arose during his employment but also arose out of it.
The facts reflect that Walker was a sanitation worker for the City of Hapeville. His duties required him to drive a three-wheeled scooter and collect trash and garbage from areas where a truck would not have access. The working hours were from 8:00 to 4:30 each working day. The drivers were required to bring their vehicles to the shop each day at about 12:00 noon. Their lunch break was from 12:00 until 12:30. While a room in the shop was provided for this purpose, the employees were free to go anywhere and do what they pleased during the lunch break. At 12:30 a signal was sounded to advise the employees that it was time to return to work.
On the day of the injury, September 3, 1976, shortly before noon, Walker drove his vehicle to a location a short distance from the shop and parked it off the street. He crossed the road and railroad tracks to purchase chicken at a quick-food establishment. While he was waiting for the order to be filled, a train stopped between him and his scooter. Walker waited for the train to move from about 12:00 noon until 12:10 or 12:20. He did not eat his lunch, but was intending to go back to his scooter, drive the remainder of the distance to the shop, and eat his lunch at the shop. At about 12:20, Walker became impatient and attempted to climb between two cars. As he did, the train started and Walker caught his foot in the coupling between the cars. His foot was crushed, resulting in serious injury.
The employer, the City of Hapeville, made a report to the workmen's insurance carrier that Walker had been injured on the job. As a result, the carrier filed a standard compensation agreement form executed by the employer, insurer and the employee with the State Board of Workmen's Compensation. Thereafter, on November 13, 1976, the insurer became aware that the injury apparently occurred during the time provided as Walker's lunch break. The insurer on that date telephonically notified personnel at the State Board of Workmen's Compensation that it (the insurer) wished to withdraw the agreement in that it had been entered into by the insurer through mistake of fact. On the same date, a letter was prepared by the insurer and forwarded to the board, verifying this request for withdrawal. The insurer was advised by personnel at the board that, inasmuch as the agreement had already been received, employees of the board could not vacate the agreement. The insurer was led to believe that the board would tentatively approve the agreement and the insurer could request a hearing on the issue of a mistake in the formulation of the agreement. This course of action was followed by the insurer. Four days later, on November 17, 1976, the board formally but tentatively approved the agreement. The board then, pursuant to the timely request for a hearing on mistake, referred the matter to an administrative law judge for findings of fact. The administrative law judge found a valid mistake of fact. Based thereon, the board vacated its approval of the agreement. Upon a full hearing as to the merits of the claim, the administrative law judge found that the injury occurred because of Walker's employment, and awarded compensation. The full board adopted all the findings of the administrative law judge except that the board found that Walker was not engaged in his employer's business of collecting refuse at the time of his injury, and denied compensation. The superior court affirmed the award of the full board denying compensation. Walker then brought this appeal. Held :
1. We will first consider the vacation of the agreement by the board. There appear to be two distinct lines of authority governing the change or vacation of an agreement approved by the board, which we view to be compatible. The first, relied upon by Walker, deals with those agreements without facially apparent errors or mistakes, that have been approved by the board without qualification or limitation. In such cases, it has been held that the State Board of Workmen's Compensation is without authority to vacate its original but final order approving the standard form agreement as to compensation. After approval, the board may not vacate, set aside, or modify a prior final award in the absence of a change of condition. See Cotton States Ins. Co. v. Bates, 140 Ga.App. 428, 231 S.E.2d 445 (1976) and cases cited therein.
The second line of authority deals with provisional or conditional approval, where the board reserves to itself the right to review and correct the agreement should it be shown that error was committed. Where the approval is conditional, as it was in this case, it has been held that, where a party at interest has availed itself in a timely fashion of the invitation to be heard, the board has jurisdiction to review and revise its award. Handley v. Travelers Ins. Co., 131 Ga.App. 797, 798(1), 207 S.E.2d 218 (1974). See also Liberty Mut. Ins. Co. v. Morgan, 199 Ga. 179, 182, 33 S.E.2d 336 (1945); Lumbermen's Mut. Cas. Co. v. Lattimore, 165 Ga. 501, 141 S.E. 195 (1928); Kay v. Maryland Cas. Co., 135 Ga.App. 108(2), 217 S.E.2d 413 (1975).
We recognize that the State Board of Workmen's Compensation is an administrative body and that it possesses only the jurisdiction, power, and authority granted to it by the General Assembly. Robinson v. Zurich Ins....
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