Opinion
40330.
DECIDED JANUARY 31, 1964.
Workmen's compensation. Cobb Superior Court. Before Judge Manning.
John Henry Poole, for plaintiff in error.
Wilson, Branch, Barwick Vandiver, M. Cook Barwick, George W. Hood, contra.
Under the ruling of the Supreme Court in answer to a certified question by this court in Guess v. Liberty Mutual Ins. Co., 219 Ga. 581 ( 134 S.E.2d 783), insofar as the award of the deputy director permitted the insurance carrier and employer to take credit on the amount due under the original approved agreement to pay compensation (award) for wages received by the claimant while in the employ of another employer prior to February 20, 1962, when the employer and insurance carrier filed an application with the board for a hearing on a change in condition, such award was erroneous and should have been set aside by the judge of the superior court. The case should be remanded to the board with directions that it determine under the evidence what disability, if any, the claimant was suffering on February 20, 1962, and to make an award therefor under the provisions of Code Ann. § 114-405. The employer and insurance carrier will be entitled to credit on such award for any payments of compensation already made in excess of the amount due the claimant under the original award. Code § 114-415.
Judgment reversed. Nichols, P. J., and Jordan, J., concur.
DECIDED JANUARY 31, 1964.
On February 27, 1961, Clarence T. Ingram, an employee of Ford McClesky Manufacturing Company, sustained an injury compensable under the Workmen's Compensation Act. On March 28, 1961, his employer and its insurance carrier, Bituminous Casualty Corporation, entered into an agreement with him for the payment of compensation to him in the amount of $24.59 per week, beginning March 6, 1961, based upon the claimant's average weekly wage of $40.98, and until terminated in accordance with the provisions of the Workmen's Compensation Act, which agreement was approved by the State Board of Workmen's Compensation. Thereafter, on October 9, 1961, the claimant, his employer, and its insurance carrier entered into an agreement for a lump sum payment in an amount equal to the then present cash value of the unpaid balance of the award theretofore entered. Under that agreement the claimant was paid $1,027.19, and upon receiving said sum, he executed a final settlement receipt which, together with the lump sum settlement agreement, was filed with the State Board of Workmen's Compensation on October 21, 1961, along with an application of the claimant that the settlement agreement be approved. On October 23, 1961, the agreement not having been approved as of that date, the claimant requested the board not to approve it. On February 20, 1962, the employer and its insurance carrier joined in an application to the State Board of Workmen's Compensation for a hearing because of an alleged change in the claimant's condition. A hearing on this application was had before a deputy director of the State Board of Workmen's Compensation, who found, among other things, as a matter of fact, that the claimant did undergo a change in condition on November 7, 1961; that on that date he began to work for an employer other than Ford McClesky Manufacturing Company at a salary of $150 per month, and that on January 1, 1962, his salary was increased to $175 per month; that the claimant and insurance carrier of the employer had, prior to the hearing, entered into a settlement based on a 15 percent disability to the claimant's body as a whole, and that the claimant had been paid $1,027.19, in full payment of the amount that would accrue to the claimant for 350 weeks for partial disability, and that the settlement agreement and settlement receipt had been submitted to the board, but because of the request of the attorney for the claimant the settlement had not been approved, and that the claimant had failed or refused to refund the $1,027.19 that had been paid to him as a result of the agreement between him and his employer's insurance carrier. The deputy director of the State Board of Workmen's Compensation who passed upon the matter, made an award finding that the claimant's employer or its insurance carrier pay the claimant compensation at the rate of $24.59 per week beginning with the date of the last payment and to continue until November 7, 1961, and that the claimant be paid compensation at the rate of $3.82 per week from November 7, 1961, to January 1, 1962, and that thereafter the claimant be paid compensation at the rate of 36¢ per week until the claimant undergoes a change of condition, but not to exceed a total of 350 weeks or a total of $6,000. The deputy director further found that the employer and its insurance carrier were authorized to take credit against the compensation due as of the date of the award and compensation that would accrue under the award for the advance payment that had been made to the claimant in the amount of $1,027.19. The claimant appealed from the award of the deputy director to the superior court, and that court affirmed the award. In their brief, counsel for the defendants in error concede "that under recent decisions of this court that so much of the award which reduces compensation under the original award for a period prior to February 20, 1962, would be retroactive and erroneous on its face."