Opinion
33944.
DECIDED APRIL 19, 1952.
Appeal; from Fulton Superior Court — Judge Hendrix. November 27, 1951.
Ferdinand Buckley, Marshall, Greene, Baird Neely, for plaintiff in error.
T. Elton Drake, John M. Williams, Harry E. Monroe, contra.
The evidence authorized the finding that the claimant, who was unable to continue doing physical labor, could not support his family on the weekly payments, but that with a lump sum he could prepare for a job that would not require physical exertion and be able to earn a living. The State Board of Workmen's Compensation did not abuse its discretion in granting the lump sum. It follows that the superior court did not err in affirming the award.
DECIDED APRIL 19, 1952.
On November 7, 1949, C. J. Dickens, the claimant, while employed on the assembly line by Chevrolet, Atlanta Division, General Motors Corporation, employer and self-insurer, sustained injuries as the result of an accident which arose out of and in the course of his employment. On April 24, 1950, a deputy director of the State Board of Workmen's Compensation entered an award for compensation at the rate of $24 per week for a period not to exceed 350 weeks from January 18, 1950. Another hearing was held on November 16, 1950, to determine the extent of disability, whether or not there was any change in condition, and whether or not further medical treatment was needed. On January 22, 1951, an award was entered directing that the compensation payments be continued and further stating as follows: "It is the further award of this director that consideration be accorded the matter of claimant being given a further thorough examination by a physician mutually acceptable to the employer and claimant for the purpose of determining whether or not surgery is indicated and, if so, such surgery would likewise be performed by a competent surgeon, mutually acceptable to the employer and claimant. In the event the employer should elect to furnish further medical and surgical treatment and the parties cannot agree as to the selection of the physician to make the examination and to perform the operation, if an operation is indicated, either party shall have the right to make application to this Board for the purpose of determining the issue." On July 10, 1951, the claimant made application for a lump-sum award, stating that, "because of long unemployment, I am heavily in debt and further it is necessary that I rehabilitate myself and take a course in a vocation which will not require physical labor." A hearing was held before the full board on July 23, 1951. The claimant's testimony was substantially as follows: He is married and has two children. His back still hurts, just as it did when the award was rendered on January 22, 1951. He is not able to work. He needs the lump sum "to get out of debt and then have a little money so I can make a little." He is in debt about $1000 because of being out of work for over a year. With some money he could learn to do something different and maybe have a job sitting down and make a living. He has a possibility of two jobs doing paper work with his uncles. The employer has not offered any further medical treatment or examination since the award issued on January 22, 1951. Harry E. Monroe testified as follows: "Yes, after the award, the last award came out, after the Chevrolet Motor Company had tried to show a change in condition and failed to show this board that the man had had a change in condition, I conferred with Mr. DeWitt over the telephone and I talked to him about this operation, and we were willing for him to be operated on, provided they would pay the medical expenses, and I had had Dr. Sandison furnish me an estimate of what it would cost, and it was $450; I submitted that to Mr. DeWitt, and he said he would not pay but $300 on the operation, and that is the reason we are in court today because at that time I had influenced Mr. Dickens to accept the settlement from the Chevrolet Motor Company, but he would not accept the settlement unless they would furnish the money for him to have this operation, and Mr. DeWitt would not offer more than $300 on the operation, and in addition to that he had his attorney to draw up a paper wherein Mr. Dickens was to sign this paper stating that he had resigned his job from the Chevrolet Motor Company as of October 8, 1950. Mr. Dickens didn't want to sign this paper because he stated that it would rob him of his pension rights, that he had paid in it when he became the age he was entitled to receive pension; however, he came to me later and told me that he was in such destitute circumstances with his family that he would sign anything if he could get some money so he could pay some bills that were pressing him and feed his babies out there. So I told Mr. DeWitt that I had gotten my client to agree to sign this paper wherein he was agreeing that he would resign in October of 1950, but that the matter of the medical had not been straightened out and it was not stipulated in the stipulations, and told him what the operation would cost and he said that he would not pay more than $300. Mr. DeWitt was a little but biased and admitted so, he never did think that Mr. Dickens had been injured seriously, he told me that he didn't think much was wrong with him and he admitted that he was biased in the case, and for that reason he said he would not pay but $300, and he is in court here today."
On July 30, 1951, the board approved the application as being to the best interest of the claimant and awarded him the lump sum of $5798.24, as the commuted value of the $6528 which would have been due over the 272 weeks which were outstanding. On appeal to the Superior Court of Fulton County the award was affirmed. To this judgment the employer excepted.
The only question presented for determination is whether or not the board abused its discretion in granting a lump-sum settlement. The Code, § 114-417, as amended by the act of 1937 (Ga. L. 1937, pp. 230, 233, 528, 531), and the act of 1943 (Ga. L. 1943, pp. 167-169; Code, Ann. Supp., § 114-417), provides: "Whenever any weekly payment has been continued for not less than 26 weeks, the liability therefor may, when the State Board of Workmen's compensation deem it to be to the best interest of the employee or his dependents, or where it will prevent undue hardship on the employer or his insurance carrier, without prejudicing the interests of the employee or his dependents, be redeemed, in whole or in part, by the payment by the employer of a lump sum which shall be fixed by the Board, but in no case to exceed the commutable value of the future installments which may be due under this law: Provided, that the lump sum to be paid shall be fixed at an amount which will equal the total sum of the probable future payments, reduced to their present value upon the basis of interest calculated at five per cent. Per annum." The evidence authorized the board to find that the claimant, who was unable to continue doing physical labor, could not support his family on the weekly compensation, but that with a lump sum he could prepare for a job that would not require physical exertion and be able to earn a living. When the Director entered an award, finding no change in condition and directing that the compensation payments be continued, he also entered a "further award," which has been quoted above. While it is clear that "further award" referred to consideration to be accorded the matter of an examination of the claimant, it will be noted that it is not required that the claimant initiate the examination, but that he be given a further thorough examination. As indicating that the employer was to be the moving party, it is further stated that, "In the event the employer should elect," etc. (Italics ours). It appears that no examination was had, and it might be contended that the claimant should have reported this fact to the Board of Workmen's Compensation for handling, but can it reasonably be contended that this burden rested on him when the "further award" shows that the employer was to initiate the proceedings? Furthermore, on failure so to act, can the employer, when he is notified that the claimant has procured a doctor who will perform the operation for $450, object to the price as being too high and thus frustrate the matter of an operation? It is our opinion that it should have agreed to such operation or have protested to the board that the price was too high and thus let the board act in the matter. On such a showing of lack of co-operation by the employer, and there being nothing in the law requiring an examination before the award of a lump sum, it can not be said that the board abused its discretion in awarding a lump sum. It follows that the superior court did not err in affirming the award. The contention of counsel for the employer, that the application for the lump sum should not have been considered until the rulings in the award of January 22, 1951, were carried out, is without merit. That award merely directed that consideration be accorded the matter of the claimant being given a further thorough examination to determine if surgery is needed, and that, in the event "the employer should elect to furnish further medical and surgical treatment and the parties cannot agree as to the selection of the physician . . either party shall have the right to make application to this Board for the purpose of determining the issue." More than seven months had elapsed between that award and the hearing on the application for a lump sum, but the evidence showed that the employer had not offered any further medical treatment or examination since the award on January 22. Neither party made application to the board "for the purpose of determining the issue." Apparently the employer did not "elect to furnish further medical and surgical treatment." There is nothing in the previous award to bar the granting of a lump-sum payment. The contention that the board "had to assume that claimant was permanently and totally disabled at the time of the hearing" is without merit, since "under the Georgia law it is not a condition precedent that it first be adjudicated that the disability is permanent." Lumbermen's Mutual Casualty Co. v. McIntyre, 67 Ga. App. 666, 669 ( 21 S.E.2d 446).
There being a dissent in the division to which this case was originally assigned, it was considered by the whole court, as provided by the act approved March 8, 1945 (Ga. L. 1945, p. 232).
Judgment affirmed. Sutton, C. J., Gardner, P. J., Townsend, and Carlisle, JJ., concur. Felton, J., dissents.
The award granting compensation stated: "It is the further award of this director that consideration by [be] accorded the matter of claimant being given a further thorough examination by a physician mutually acceptable to the employer and claimant for the purpose of determining whether or not surgery is indicated and if so, such surgery would likewise be performed by a competent surgeon, mutually acceptable to the employer and claimant. In the event the employer should elect to furnish further medical and surgical treatment and the parties cannot agree as to the selection of the physician to make the examination and to perform the operation, if an operation is indicated, either party shall have the right to make application to this Board for the purpose of determining the issue." There has been no effort on the part of the claimant to have himself examined by a physician suitable to both parties nor has there been a submission to the board of the issue as to who should perform an operation if one is necessary. I think that a lump-sum award is premature until an examination is had, and if an operation is found necessary, an operation ordered by the board is refused by the employer.