Opinion
34008.
DECIDED MAY 6, 1952. REHEARING DENIED MAY 23, 1952.
Appeal; from Fulton Superior Court — Judge Wood. January 17, 1952.
Frank Lawson, for plaintiff.
Martin, Snow Grant, for defendant.
The award of the State Board of Workmen's Compensation being contrary to law, the judgment of the superior court setting the same aside and remanding the case to the board for further action in accordance with the judgment of that court was proper and is affirmed.
DECIDED MAY 6, 1952 — REHEARING DENIED MAY 23, 1952.
Paul A. Massey filed with the State Board of Workmen's Compensation his claim for compensation on account of an injury to his foot, resulting from an accident sustained December 13, 1950, while in the employ of the Auto-Lite Battery Corporation, same being a fracture of certain bones in his left foot, necessitating the placing of his foot in a cast, which was removed in six weeks, and at the end of twelve weeks the recovery was complete. There was no dispute as to the facts, and the findings of fact by the board were based upon an agreed statement of facts. The board found as follows: "The Board finds as a matter of fact that Paul A. Massey, on or about December 13, 1950, was an employee of Auto-Lite Battery Corporation. That on or about said date he met with an accident and injury which arose out of and in the course of his employment, having received a fracture of the second, third, fourth, and fifth metatarsals of the left foot. That his average weekly wage at the time was $87.36. The Board further finds that the other injuries received as a result of the accident such as a sprain of the left shoulder and bruise of the right knee, were not and are not now disabling. The Board, therefore, finds as a matter of fact and rules as a matter of law that, if there is any disability, it was and is to the left foot and should be compensated for under Code section 114-406. The Board finds as a matter of fact that the employer and/or insurance carrier submitted to the Board on or about April 30, 1951, Form 16, Standard Form for Agreement as to Compensation and Form 19, Supplemental Memorandum of Agreement as to Payment of Compensation and this Form 19 was executed on a basis of payment of compensation for 1-5/6 weeks plus the one week waiting period, the employer and/or insurance carrier undertaking, from Form 19 submitted to the Board, to pay under Code section 114-405, due to the fact that the claimant's wages had been reduced because of his inability to stand on his foot and perform all of his duties. The Board very properly declined to approve this Form 19 which undertook to pay the claimant for a specific member disability under Code section 114-405, rather than Code section 114-406 which controls payment of compensation for specific member injury as in this case. The Board rules as a matter of law that the contention of the employer and/or insurance carrier and the employee that payment should be made under Code section 114-405 is erroneous, and that payment should be made for the disability after the disability has been rated for a period of time for the specific member, to wit: the left foot, under Code section 114-406, citing Roddy v. Hartford Accident Indemnity, 65 Ga. App. 632, the Board's authority for this ruling and the Board, therefore, declines to issue an award directing payment of compensation to this employee claimant for the 1-5/6 weeks under Code section 114-405, but directs that the employer and/or insurance carrier and employee submit to the Board on Form 19 the percentage of loss of use of the claimant's specific member, to wit: the left foot, for that period of time, after which the Board will approve payment of compensation as required by law for the percentage of disability to the specific member under Code section 114-406. . . Wherefore, based upon the above and foregoing rulings of the Board, the employer and/or insurance carrier and/or employee claimant are directed to submit to the Board a rating of the percentage of disability to the claimant's injured member for loss of use of the specific member during the period of time for which the employer and/or insurance carrier are undertaking to pay the claimant for 1-5/6 weeks under Code section 114-405. The Board further directs and orders that the employer and/or insurance carrier pay the said employee for said specific member injury disability under Code section 114-406 as provided for in the case of Roddy v. Hartford Accident Indemnity Company, 65 Ga. App. 632."
The employer and insurance carrier appealed from this award to the Superior Court of Fulton County, where on January 17, 1952, the following judgment was rendered: "The within appeal coming on to be heard, after hearing and after consideration, it is ordered and adjudged that said appeal be granted, and that the award of the State Board of Workmen's Compensation, dated November 6, 1951, be vacated and set aside. It is the judgment of this court that this employee should be compensated under the terms of Georgia Code section 114-405, and that the terms of the provision of Code section 114-406 are not applicable. It is ordered that the State Board of Workmen's Compensation shall enter an award approving the agreement as to compensation entered into between the employee, employer, and the insurance carrier on April 30, 1951, said agreement being that the employer and carrier would pay and the employee accept compensation after the 20th day of December, 1950, at the rate of $15 per week for one and five-sixths weeks."
To the foregoing judgment the claimant employee excepts to this court.
The injury to the plaintiff's foot was not a permanent injury to a specific member, such as entitled him to have his compensation based upon the schedule set out in Code § 114-406 (section 32 of the Act), but the claimant was entitled to compensation for a partial incapacity to work under Code § 114-405. The award of the board was erroneous, and the superior court properly overruled and set the same aside and remanded the case to the board for further proceedings in accordance with the judgment of that court. In Georgia Casualty Co. v. Jones, 156 Ga. 664 ( 119 S.E. 721), the Supreme Court held that section 32 (Code, § 114-406) provides compensation for injuries resulting from the loss of certain members or organs of the human body and fixes the period of incapacity to work in the case of the loss of each of such members, and the compensation to be paid for the injury which results in such loss. Said section provides that this shall be in lieu of all other compensation. If the employee can recover compensation for such an injury under both sections 30 and 32 (or 31 and 32) of the Act, then his compensation under section 32 (Code, § 114-406) is not in lieu of all other compensation. To adopt the construction of the statute, as contended by the employee and the board in the case sub judice would "permit double compensation under these sections" and "would be in the teeth of the plain and distinct legislative intent." In Castle v. Imperial Laundry c. Co., 62 Ga. App. 184 ( 8 S.E.2d 547), the claimant's hand was injured and he was totally incapacitated for two weeks and partially incapacitated for two weeks, and this court held that his injury did not come within the provisions of Code § 114-406, "for the injury was not the loss of a hand." In City of Waycross v. Hayes, 48 Ga. App. 318 ( 172 S.E. 756), it was held that where an employee is totally disabled by an injury to one of his feet, but the foot is not lost, his compensation is not fixed by Code § 114-406 (section 32 of the Act). See also Liberty Mutual Ins. Co. v. Clay, 180 Ga. 294 ( 178 S.E. 736). Nothing to the contrary is held in Roddy v. Hartford Accident c. Co., 65 Ga. App. 632 ( 16 S.E.2d 81), where the claimant employee sustained a fifteen percent permanent partial loss of the use of his leg. There was no permanent partial loss of a member or the use thereof in the case at bar.
It follows that the claimant employee was not entitled to compensation based on Code § 114-406 (section 32 of the Act), and that the board improperly so ruled. The judge of the superior court, to whom the award was appealed, properly set this award aside and remanded the case for an award in accordance with the judgment of that court.
Judgment affirmed. Townsend and Carlisle JJ., concur.