Summary
In Aetna Insurance Co. v. Gipson, 104 Ga. App. 108, 110-11, 121 S.E.2d 256, 257-58 (1961), settlement of a 1959 workers' compensation claim for back injury was held res judicata as to the cause of the injury and barred the employee from later bringing a claim that a 1957 accident at work caused the same injury.
Summary of this case from J R Carrozza Plumbing v. Industrial CommissionOpinion
38862.
DECIDED JUNE 26, 1961. REHEARING DENIED JULY 7, 1961.
Workmen's compensation. Clarke Superior Court. Before Judge Cobb.
Erwin, Birchmore Epting, Nicholas P. Chilivis, for plaintiffs in error.
Guy B. Scott, Jr,. James E. Hudson, contra.
The finding and award of the State Board of Workmen's Compensation in favor of the claimant being authorized by competent evidence, and there being no errors of law which require a reversal of this case, the superior court did not err in affirming the award.
DECIDED JUNE 26, 1961 — REHEARING DENIED JULY 7, 1961.
This is a workmen's compensation case based upon an alleged change of condition. The hearing director found for the claimant and authorized and directed the employer and insurer to pay the claimant $30 per week for 400 weeks on the basis of a finding of temporary total disability. This award was appealed to the Superior Court of Clarke County and affirmed, which is the judgment here assigned as error.
The record discloses without dispute that the claimant suffered an accidental injury which arose out of and in the course of his employment on September 9, 1957, at which time he injured his back. He was treated for this injury by Dr. James A. Green who diagnosed the injury as an acute back strain. He entered into an agreement at that time with his employer, Seven-Up Bottling Co., and the insurer, Hartford Accident Indemnity Co. Said agreement is dated September 22, 1957, and was approved by the State Board of Workmen's Compensation on October 24, 1957. According to that agreement, which is part of the record in this case, the claimant was to be paid for said injury from and including September 16, 1957, until terminated in accordance with the workmen's compensation laws of the State of Georgia. A compensation settlement receipt was duly signed by the claimant showing that his temporary disability ceased on September 23, 1957. This receipt was received by the board on October 24, 1957. From September 23, 1957, until July 16, 1959, the claimant continued his work with no recurrence of his back trouble. The record discloses that approximately one year later the Seven-Up Bottling Co. became the Seven-Up Bottling Co. of Athens, Inc., a corporation which had been formed on August 23, 1958. It was the contention of counsel for the defendants that the Seven-Up Bottling Co. of Athens, Inc. was not a successor company but had purchased the physical assets of the Seven-Up Bottling Co. and was thus a new employer in respect to the claimant in this case and had not assumed the liabilities of the old company. There was no evidence adduced as to these facts, however, as they were held to be immaterial by the hearing director.
On July 16, 1959, while working for the Seven-Up Bottling Co. of Athens, Inc., whom we shall call the present employer (the defendant at the hearing below and the plaintiff in error in this case) the claimant again injured his back. He was treated for this injury by the same Dr. James A. Green who diagnosed the injury to be a slipped disc, and entered into agreement with the defendant to pay compensation. This agreement was received by the board on March 15, 1960, and approved by it on March 16, 1960. The claimant was paid compensation under said agreement and returned to work on August 2, 1959. A compensation settlement receipt was duly signed on August 3, 1959, and filed with the board on March 15, 1960. On June 2, 1960, the claimant resigned his employment with the present employer. The application for a hearing based on change of condition was filed shortly thereafter and said hearing was held on July 19, 1960.
The evidence adduced on the hearing showed without dispute that the claimant was suffering from a back injury which was diagnosed as a slipped disc by his doctor after the injury of July 16, 1959, and that at the time of the hearing the plaintiff was suffering from the same slipped disc. The evidence further authorized the finding that his condition has worsened since July, 1959, to an extent that he is now temporarily totally disabled. These facts are not disputed by the defendants.
The case for the defendants is based on the testimony of the claimant's doctor that the claimant's disability stemmed from his original injury of 1957 and was unrelated to his injury of 1959. The defendants contend that this testimony demanded a finding that the claimant's disability on which the change of condition is based, was not the liability of the defendants but of a former employer and insurer and that the director erred as a matter of law in ruling that the compensation agreement entered into between the parties as a result of the 1959 injury was res judicata of the defendants' liability for the present disability and in ruling that the evidence relating to the 1957 injury was therefore irrelevant and immaterial.
An agreement fixing compensation between the employer and employee, approved by the Board of Workmen's Compensation, and not appealed from, is res judicata as to the matters therein determined, and the parties are precluded from thereafter contradicting or challenging the matters thus agreed upon. Lumbermen's Mut. Cas. Co. v. Cook, 195 Ga. 397, 399 ( 24 S.E.2d 309); Hartford Accident c. Co. v. Carroll, 75 Ga. App. 437, 444 ( 43 S.E.2d 722). Under this principle as applied to the evidence in this case, it is our opinion that the compensation agreement entered into between the claimant and the defendants in this case following the injury of July, 1959, is res judicata of the fact that the claimant received either an original back injury or an aggravation of a prior injury as a result of which claimant suffered a slipped disc. Accordingly, since the evidence authorized the finding that the claimant was suffering from this condition at the time of the hearing based on a change of condition and since the evidence authorized the finding that there had been a change of condition and that the claimant was temporarily totally disabled, the Superior Court of Clarke County did not err in affirming the award of the hearing director.
While Dr. Green, who was the claimant's witness, testified that the claimant's disability stemmed from the 1957 injury and was not related to the 1959 injury, the only reasonable construction of his testimony is that the disability which the claimant suffered in 1959 and for which a compensation agreement was entered into by the parties also stemmed from the 1957 injury. The defendants, however, by not asserting this defense after the 1959 injury and by entering into the compensation agreement, are now estopped under the doctrine of res judicata from contending that the present disability is unrelated to the 1959 injury since the evidence authorizes the finding that the present disability and that suffered after the 1959 injury are one and the same.
Thus, the case of Roberts v. Lockheed Aircraft Corp., 93 Ga. App. 440 ( 92 S.E.2d 51), and the other cases relied on by the defendants for the proposition that the fact that compensation was paid under the 1959 agreement does not preclude them from showing that the present disability did not stem from the admitted liability, are not applicable here. In those cases, as pointed out in the Roberts case, supra, the present disability was not traceable to the original injury and admitted liability whereas in the instant case they are one and the same.
Accordingly, the director's findings of fact being authorized by the evidence and there being no errors of law which require a reversal of this case, the judgment under review must be affirmed.
Judgment affirmed. Townsend, P.J., and Frankum, J., concur.