Opinion
36531.
DECIDED FEBRUARY 18, 1957. REHEARING DENIED MARCH 6, 1957.
Workmen's compensation. Before Judge Pharr. Fulton Superior Court. October 19, 1956.
Burt DeRieux, Marshall, Greene Neely, for plaintiffs in error.
Richard D. Carr, Smith, Field, Doremus Ringel, contra.
There being competent evidence to support the award of the full board of the State Board of Workmen's Compensation this court is without authority to reverse it.
DECIDED FEBRUARY 18, 1957 — REHEARING DENIED MARCH 6, 1957.
Doris Starnes filed a claim with the State Board of Workmen's Compensation against her employer, Allstate Insurance Company, and the American Motorists Insurance Company for an alleged injury due to an accident arising out of and in the course of her employment. A hearing was had before a single director which resulted in an award based on total disability. On appeal to the full board the award of the single director was reversed and an award was made based on temporary partial disability. On appeal to the Superior Court of Fulton County the award of the full board was affirmed. It is on this judgment that the case is before this court for review.
The findings of fact of the full board show substantially that the claimant was classified as a rater in the policy preparation department of her employer. She also serviced policies, and her job was classified as clerical. Subsequent to her injury and while drawing her full salary, though absent, she voluntarily resigned her job and opened an insurance agency of her own. She immediately began operating her business upon her resignation and has continued to do so without interruption. The nature of her activities as an insurance agent are comparable to her activities while employed by the defendant with the additional activity of procuring business as well. Based on the evidence before the board it found as a matter of fact that the claimant suffered a partial disability of 20 percent and should be paid compensation as provided under Code (Ann.) § 114-405. The evidence does not disclose any earnings by the claimant subsequent to the accident and injury and while engaged in her privately and personally owned insurance business, and it was the opinion of the majority of the board that since no earnings were shown by the claimant or defendant she is entitled to receive pay under Code (Ann.) § 114-405 for partial disability not to exceed the maximum of $15 per week provided by the act until there has been a change in condition.
Counsel for the claimant and for the employer cite Employers Liability Assur. Corp. v. Hollifield, 93 Ga. App. 51, 53 ( 90 S.E.2d 681). That case is unlike the case at bar in that the claimant in the instant case continued to do the same type of work after the injury as before. That case has no bearing on the case at bar. Austin Brothers Bridge Co. v. Whitmire, 31 Ga. App. 560 ( 121 S.E. 345) is not applicable for the reason that the claimant continued to do the same work after the injury as before. The facts in Lumbermen's Mutual Cas. Co. v. Cook, 69 Ga. App. 131 ( 25 S.E.2d 67) are different from the facts in the instant case.
There is competent evidence to support the award of the State Board of Workmen's Compensation, and this court is without authority to disturb such an award.
Judgment affirmed. Townsend and Carlisle, JJ., concur.
Examination of the brief and motion to rehear of counsel for the plaintiff in error discloses the sole contention to be that "the award on its face is erroneous, because where the board has found that a 20% disability exists, we take the position that they can only award compensation as for 20% disability," or in other words that the award cannot exceed 20% of an award for permanent total disability, disregarding the maximum statutory weekly payment amounts. Since this is one of the most common errors made in computing compensation, I think a clarification of the method of figuring permanent disability payments is indicated. Disregarding injuries to specific members compensable under Code (Ann.) § 114-406, the measure of the award for any permanent disability, partial or total, involves not percentage of physical disability but percentage of loss of earning power. "The word `disability' as used in the act means impairment of earning capacity." Blue Bell Globe Mfg. Co. v. Baird, 61 Ga. App. 298
(6 S.E.2d 83). Where there is a permanent partial disability to the body as a whole, it matters not whether it be 10% or 90%. What matters is the result of the disability on earning capacity. One person with a 25% physical disability may, by reason of having no ability to earn money at all except by manual labor, suffer a 100% destruction of earning capacity and therefore be, for compensation purposes, 100% disabled, as in Employers Liability Assur. Corp. v. Hollifield, 93 Ga. App. 51 ( 90 S.E.2d 681). Another person with a 25% physical disability may have pain and difficulty in performing his work, but, so long as he actually does work and receives the same or higher wages, he has no compensable disability at all, as in American Mutual Liability Ins. Co. v. Hampton, 33 Ga. App. 476 ( 127 S.E. 155).
Accordingly, whether the claimant is 10% or 50% physically disabled as shown by opinion evidence is immaterial. What is material is that (a) she does have a permanent disability which has decreased her earning capacity as a result of her injury, and (b) the disability is not total because she is still engaged in the same sort of work she did before the injury. The board must accordingly determine the amount of decrease of compensation and fix an award accordingly. Code (Ann.) § 114-405 according to its provisions in effect at the time of this injury (before amendment by Ga. L. 1955, p. 210) provided a yardstick of 50% of the difference between a claimant's regular weekly wages before injury and "the regular weekly wages which he is able to earn thereafter, but not more than $15 per week." What this amount is represents a question of fact. From the evidence before the board it appeared that before her injury the claimant received $61.34 per week. In her own business, organized some time after she ceased working for the Allstate Insurance Company in February, 1955, and until the hearing in November, 1955, the only testimony bearing on the earning capacity of claimant is her own, to the effect that she is able to work only a few minutes or an hour at a time, that her mother and sisters, who have no previous insurance experience, help her out, that she is living on her savings; that she invested her savings in the business and has not been getting out of it what she put in, and that since May or the first of June until November she has drawn nothing out. This testimony makes out a prima facie case that the claimant has received next to nothing for her work during this period of time, but she has probably received something, and she does have an earning potential. The award was set at the maximum of $15 per week, and the claimant would be entitled to the maximum if her earnings in the new business amount weekly on an average to $30 or less. There is no evidence to indicate that the claimant is receiving average weekly wages of more than $30 per week. Accordingly, the award is not without evidence to support it and was properly affirmed by the judge of the superior court on appeal.