Opinion
41754.
ARGUED JANUARY 6, 1966.
DECIDED JANUARY 18, 1966. REHEARING DENIED FEBRUARY 2, 1966.
Workmen's compensation. Walker Superior Court. Before Judge Coker.
Wade H. Leonard, for appellant.
Burton Brown, Powell, Goldstein, Frazer Murphy, Frank Love, Jr., Warren R. Wilson, for appellee.
When after an award or agreement for the payment of compensation approved by the State Board of Workmen's Compensation, the employer files an application for hearing on a change of condition and ceases making payments, his liability for payments after the date of the application will be determined upon the hearing, and the employee is not entitled before the hearing to a judgment under Code § 114-711 for payments due under the original award or agreement after the date of the application for hearing.
ARGUED JANUARY 6, 1966 — DECIDED JANUARY 18, 1966 — REHEARING DENIED FEBRUARY 2, 1966 — CERT. APPLIED FOR.
The plaintiff filed in the superior court an application for a judgment, pursuant to Code § 114-711, for workmen's compensation payments allegedly due him under an agreement between him and his employer to pay and receive compensation approved by the State Board of Workmen's Compensation. After hearing evidence on the application the court found that before the employee filed his application to the court the employer and its insurer had applied to the State Board of Workmen's Compensation for a hearing on a change of condition, and thereafter made no payments to the employee. For this reason the court denied the employee's application. The employee appeals from that judgment.
This court held in Hartford Acc. c. Co. v. Carroll, 106 Ga. App. 624 ( 127 S.E.2d 687), that a judgment for compensation payments according to the terms of an approved agreement during the period when an employer's application for hearing on a change in condition was pending was error. Accord Gentry v. Georgia Cas. c. Co., 109 Ga. App. 294 ( 136 S.E.2d 26); Zurich Ins. Co. v. Cooper, 106 Ga. App. 437, 439 ( 127 S.E.2d 165); Collins v. Kiker, 106 Ga. App. 513, 515 ( 127 S.E.2d 849); Anglin v. St. Paul-Mercury Indem. Co., 106 Ga. App. 395, 399 ( 126 S.E.2d 913); James v. General Motors Corp., 107 Ga. App. 588, 590 ( 131 S.E.2d 58); Bump v. Continental Cas. Co., 109 Ga. App. 228 ( 136 S.E.2d 14).
Opinions of our courts contain language to the effect that an employer cannot voluntarily cease making compensation payments under an award or agreement approved by the board unless the original award or agreement has been superseded by a new award or agreement, and that a new award based upon a change in condition cannot be made retroactive. See Home Acc. Ins. Co. v. McNair, 173 Ga. 566 ( 161 S.E. 131); Sears, Roebuck Co. v. Wilson, 215 Ga. 746, 753 ( 113 S.E.2d 611); Guess v. Liberty Mut. Ins. Co., 219 Ga. 581, 582 ( 134 S.E.2d 783); American Cas. Co. v. Herron, 102 Ga. App. 658, 660 ( 117 S.E.2d 172); Armour Co. v. Youngblood, 107 Ga. App. 505 ( 130 S.E.2d 786); Hartford Acc. c. Co. v. Webb, 109 Ga. App. 667, 669 ( 137 S.E.2d 362); Pittsburgh Plate Glass Co. v. Bailey, 111 Ga. App. 609, 614 ( 142 S.E.2d 388).
The employee in the present case, relying on such opinions, contends that the employer is liable for payments during the period while its application for hearing on a change in condition was pending. However, the decisions in those cases are that an award based on a change in condition cannot be made retroactive to a time before the application for hearing on a change in condition was filed. They are not in conflict with the decisions first cited above, which hold that an employer may stop making payments of compensation after filing an application for hearing on a change in condition, and the employer's liability from the date of the application will depend upon the final determination of the issue after the hearing, but his liability before the date he files an application for change in condition cannot be altered.
The trial court did not err in denying the application.
Judgment affirmed. Nichols, P. J., and Deen, J., concur.