Opinion
43144.
SUBMITTED OCTOBER 5, 1967.
DECIDED NOVEMBER 16, 1967.
Workmen's compensation. Fulton Superior Court. Before Judge Pye.
Woodruff, Savell, Lane Williams, John M. Williams, for appellants.
Rich, Bass, Kidd Broome, Charles T. Bass, for appellee.
Where an employee sustained three work-related injuries in a five-month period, agreements to pay compensation were entered into under the first two, compensation paid, and the employee after signing a final settlement receipt returned to work, and, after the third injury there was a request for hearing as to all three injuries by the claimant who contended that as a result thereof he was totally disabled, which application was set for hearing and terminated in an agreement for lump sum settlement approved by the board and subsequently paid, and thereafter more than five years elapsed before any further action was attempted to be taken, the claimant is estopped to contend that any residual disability resulting from the first injury alone was not merged in the settlement agreement approved by the board and filed of record in the case.
SUBMITTED OCTOBER 5, 1967 — DECIDED NOVEMBER 16, 1967.
The claimant Gaudio sustained injuries arising out of and in the course of his employment with New Dixie Lines, Inc., on February 4, 1960, June 28, 1960, and July 20, 1960. As to the February 4 injury, an agreement to pay and receive compensation was made and approved by the State Board of Workmen's Compensation. On March 21, 1960, a final settlement receipt signed by Gaudio was filed with the board which showed that he had returned to work February 15. Another agreement to pay was entered into covering the June 28 injury and compensation was paid until Gaudio returned to work on July 19. Following the July 20 injury nothing was done until December 1, 1960, when Gaudio made application to the board for a hearing reciting that he was injured by accident on February 1, June 28 and July 20, as a result of which he was compelled to quit work. Paragraph 5 recites: "I am asking for a hearing for the following reasons: claimant injured on three occasions while working for this employer; asks for immediate hearing as soon as possible solely to authorize back operation, promptly recommended by Dr. Calvin Sandison, and hospital expense in connection therewith, and continuation of temporary total disability payments." Prior to hearing a stipulation agreement between the parties was filed on May 25, 1961, the board issued an award thereon directing the employer to pay $1,750 "in full and final payment of all compensation and attorney fees due hereunder." This was done.
On July 26, 1966, the claimant filed with the Superior Court of Fulton County a copy of the agreement to pay compensation entered into after the first accident of February 4, 1960, and obtained a judgment thereon of $12,958.39. The employer then requested a hearing before the board to determine whether all compensation payable under that agreement had not in fact been paid and whether, if not, it was entitled to credits thereon and the amount thereof. The deputy director hearing this issue entered an award to the effect that "the board cannot determine whether all compensation has been paid under the agreement approved March 10, 1960, since only the employer and claimant know whether the amount was paid and received, there being no evidence on this point." There was a further finding that there was no evidence the claimant had ever asked that his compensation for the February, 1960, injury be recommenced, or that he is suffering from any disability therefrom, and that, 6 years having elapsed since the accident, the board has no jurisdiction of the claim. On appeal this award was made the award of the full board. On further appeal the Judge of the Superior Court of Fulton County remanded the case to the board for the purpose of taking additional evidence as to amounts to be credited to the employer against the March 10, 1960, agreement on which the judgment of the superior court was founded.
There is considerable discussion of administrative procedures by the State Board of Workmen's Compensation regarding the numbering and consolidation of the various accident reports and claims, but the sole question at issue is whether the first agreement to pay compensation for the accident of February 4, 1960, remained viable or whether it was merged in the award of May 25, 1961. In this regard the final settlement receipt dated March 21, 1960, is of course not definitive, since the approved agreement is "a decision or judgment of the compensation board which must be complied with until it is superseded by a new award." Guess v. Liberty Mut. Ins. Co., 219 Ga. 581, 582 ( 134 S.E.2d 783). And see, as to a settlement receipt, Fidelity Cas. Co. v. King, 104 Ga. App. 261, 264 ( 121 S.E.2d 284).
Settlement agreements are permitted by Code Ann. § 114-106 and lump sum settlements under Code Ann. § 114-417. Code § 110-501 provides that judgments shall be conclusive "as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered," and this Code section has been applied to workmen's compensation cases. See Churchwell Bros. Constr. Co. v. Archie R. Briggs Constr. Co., 89 Ga. App. 550, 554 ( 80 S.E.2d 212). "We do not mean to hold that a change in dependency occurring subsequent to the first hearing can not be shown on a review but we do hold that all issues which were determined or which could have been adjudicated on the first hearing concerning facts as they then stood are conclusive. Any issue which could have been determined on the first hearing is res judicata." Fishten v. Campbell Coal Co., 95 Ga. App. 410, 416 ( 98 S.E.2d 179). Here, after the first injury, the employee was paid for temporary total disability, acknowledged payment in full, and returned to work. Thereafter he sustained two more injuries, was paid for temporary total disability on one of them, and eventually requested a hearing as to all three. This was followed by a settlement in full which was approved by the board, following which no action was taken for over five years. The claimant is now estopped to contend that his settlement agreement referred only to the last two accidents and did not include the first, since it was a settlement of the claim which had been set for hearing at his request and in which he had included a request for hearing as to all three injuries and continuation of temporary total disability payments, and as to which the board by agreement awarded a lump sum "in full and final payment of all compensation, medical and attorney fees due hereunder."
Judgment reversed. Jordan, P. J., and Quillian, J., concur.