The Court stated that to deny a claimant benefits while incarcerated awaiting trial was an unfair situation, because it favored a defendant who was capable of posting bail over one who was unable to do so. See also, Howard v. Scott Housing Systems, Inc., 180 Ga. App. 690, 350 S.E.2d 27, aff'd 256 Ga. 675, 353 S.E.2d 2 (Ga. 1986) (recognizing this proposition). The Employer/Carrier also asserted that this Court should follow Baskerville v. Saunders Oil Co., Inc., 1 Va. App. 188, 336 S.E.2d 512 (1985).
Martines's legal status is also analogous to that of the person incarcerated after an adjudication of guilt. Scott Housing Systems v. Howard, 256 Ga. 675 ( 353 SE2d 2) (1987); Mize v. Cleveland Express, 195 Ga. App. 56 ( 392 SE2d 275) (1990). But as noted in Wise, supra, 261 Ga. at 55-56, one who has not yet been convicted and still has the benefit of the presumption of innocence, but is unable to obtain bail, does not fall within this category.
The denial was affirmed by the Workers' Compensation Board and then reversed by the superior court. We agree with the superior court that the case of Scott Housing Systems v. Howard, 256 Ga. 675 ( 353 S.E.2d 2) (1987), is controlling. The Supreme Court therein espoused the general principle that "[i]n workers' compensation cases where the employee is charged with a crime while receiving benefits,. . . the proper time for termination of benefits is the date of adjudication of guilt."
In Howard, we considered a similar issue and found that the claimant in that case was justified in refusing suitable employment which was offered to him while he was incarcerated but before he was adjudicated guilty. On certiorari, the Supreme Court agreed and held that "[i]n workers' compensation cases where the employee is charged with a crime while receiving benefits, ... the proper time for termination of benefits is the date of adjudication of guilt." Scott Housing Systems v. Howard, 256 Ga. 675 ( 353 S.E.2d 2) (1987). The employer urges that Howard is not controlling in the present case because claimant's incarceration related to a probation violation for a previous conviction and as such was punishment for a crime for which he had already been convicted.