Opinion
49209.
ARGUED APRIL 3, 1974.
DECIDED APRIL 9, 1974. REHEARING DENIED APRIL 24, 1974.
Workmen's compensation. Spalding Superior Court. Before Judge Whalen.
George W. Mullins, Jr., for appellants.
L. D. Burns, Jr., John C. Tyler, for appellee.
Where in a workmen's compensation case an employee suffered a back injury, entered into an agreement to pay and receive compensation, and returned to work and thereafter became again disabled, a question of fact arose as to whether the disability resulted in a change of condition from the original injury or whether it resulted from a new injury. A finding by the hearing director unappealed from that there was in fact no new injury was res judicata, and did not prevent a subsequent hearing and award based on a pending claim of change of condition as to the original accident. Under these circumstances, the insurer at the time of such injury is liable for disability benefits, regardless of the fact that after the award denying compensation as to an alleged different accident the claimant entered into an agreement with the employer and the employer's subsequent insurer (there having been a new placement of the insurance in the meantime) not to appeal the award. The first insurer is not entitled to credit against disability payments for the sums paid out by the employer and/or the subsequent insurer under such agreement.
ARGUED APRIL 3, 1974 — DECIDED APRIL 9, 1974 — REHEARING DENIED APRIL 24, 1974 — CERT. APPLIED FOR.
Roger Miller, an employee of Associated Grocers, Inc., was injured on the job on January 7, 1970, at a time when the employer's insurance carrier was Employers Mutual Liability Ins. Co. of Wisconsin. The claim was set up as 1843W in the board files, there was an agreement to pay compensation at the total disability rate, and various amendments reflect periods of disability and return to work thereafter.
On March 20, 1972, the employee allegedly wrenched his back while at work, and made a claim for compensation which was set up as file No. 7419. At this time the employer had changed insurance carriers and the new insurer, Continental National American Ins. Co., was the company involved. This claim was set for hearing as to a new accident, and No. 1843W was also set for hearing on change of condition. On October 3, 1972, the hearing director found (as against the contentions of the appellant) that the claimant did not sustain a new injury, that he never fully recovered from the accident of January, 1970, that he suffered an aggravation of the original injury in March, 1972, and that he was entitled to a change of condition award and compensation at the total disability rate. In the meantime, a hearing on claim No. 7419 had resulted in an award denying compensation for a new accident on September 28, 1972, and this was followed by a settlement agreement dated October 6, 1972, between the claimant, the employer, and Continental in which the claimant was paid $6,000 in return for his agreement not to appeal the denial of compensation as for a new injury and to release all claims on this theory while specifically not releasing his claim to a change of condition and aggravation of the original injury.
The award in claim No. 1843W allowing compensation based on change of condition was affirmed by the full board with an additional finding that the settlement in the other case had no bearing on compensation payable hereunder. The appeal to this court is from the judgment of affirmance in the Superior Court of Spalding County.
It is obvious that since both the employer and employee entered into a contract agreement that they would for a consideration accept the board award finding there had not been a new injury, and leaving open the question of aggravation of a previous injury, that the bone of contention lies between the two insurers. Not only is this agreement approved by the board, it is based on a hearing and board adjudication denying compensation under the "new accident" theory. The award in claim No. 7419, not having been appealed, is res judicata to the effect that the 1972 incident did not constitute a new injury. Arnold v. Indemnity Ins. Co., 94 Ga. App. 493 ( 95 S.E.2d 29); Noles v. Nat. Engine Rebuilding Co., 119 Ga. App. 833 ( 169 S.E.2d 185). Under Code § 114-606 "the insurer or insurers shall in all things be bound by and subject to awards, judgments, or decrees rendered against such insured employer." And Code § 114-607 provides: "No policy or contract of insurance shall be issued unless it contains the agreement of the insurer or insurers that it or they will promptly pay to the person entitled to same all benefits conferred by this Title and all instalments of the compensation that may be awarded or agreed upon, and that the obligation shall not be affected by any default of the insured after the injury, or by any default in giving notice required by such policy, or otherwise." (Emphasis supplied.)
We are well aware that for purposes of determining the statute of limitation the rule is settled that where the employee has sustained an employment related injury a subsequent employment connected aggravation thereof resulting in disability will be considered a new accident. Blackwell v. Liberty Mutual Ins. Co., 230 Ga. 174 ( 196 S.E.2d 129); House v. Echota Cotton Mills, Inc., 129 Ga. App. 350 ( 199 S.E.2d 585); Pacific Employers Ins. Co. v. Ivey, 118 Ga. App. 299 ( 163 S.E.2d 435). But here we have a prior award of the board, consented to by both the employer and employee, denying compensation under the "new accident" theory. The employer and its insurer are thus estopped to contend that on the hearing presently being appealed the board should have found that the disability resulted from a change of condition rather than a new accident. An award not appealed "shall be conclusive and binding as to all questions of fact." Code § 114-710. As a matter of procedure, evidence of these facts was introduced by order of the full board in claim 1843W to consider the effect, if any, of the proceedings relating to the 1972 incident upon the 1970 incident. The final award of the full board contains the following language: "The agreement in claim number 257-18-7419 was to the effect that no accident had been sustained by the employee between January 10, 1972, and March 21, 1972 (a no liability stipulation). This stipulation and agreement was approved by the Board and therefore has no effect whatsoever on the present case, the issue as to whether or not the employee did in fact sustain an accident subsequent to the one at issue has already been adjudicated and determined that no such accident did occur."
The evidence does in fact show an aggravation of the claimant's back injury and the resulting disability. Accordingly, the judge of the superior court did not err in affirming the award of the full board. The enumerations of error go either to the sufficiency of evidence, or to procedural questions which show no reversible error, with the exception of No. 4, which contends that the board should have allowed Employers Mutual credit for the $6,000 paid by Continental National in exchange for an agreement not to appeal the award. Since this sum was not paid as disability benefits, the appellant is entitled to no credit on this theory.
Judgment affirmed. Stolz and Webb, JJ., concur.