Opinion
39015.
DECIDED SEPTEMBER 29, 1961.
Workmen's compensation. Fulton Superior Court. Before Judge Alverson.
Smith, Swift, Currie, McGhee Hancock, Glover McGhee, for plaintiffs in error.
Harry E. Monroe, contra.
An award based on an agreement between an employer and an employee for maximum weekly payments "until terminated in accordance with the provisions of the Workmen's Compensation Act," showing on its face that the employee received multiple injuries, must be construed as an award under Code Ann. § 114-404 for total disability rather than one under Code Ann. § 114-406 for injury to a specific member, and such an award is res judicata. Accordingly, where a later award is made for permanent disability of a specific member, the employer is not entitled to credit against the later award for weekly payments made under the original award, even though at the hearing there is no evidence that there has been any disability from any injury other than that to the specific member.
DECIDED SEPTEMBER 29, 1961.
The defendant in error, hereinafter called claimant, was injured while working for Wilson Truck Co., Inc., hereinafter called employer. Thereafter the claimant and employer entered into an agreement as to compensation, stating, as to the "nature of injury": "Contusions toes left foot. Severe laceration anterior medial aspect rt leg with disruption of some of medial muscle mass, transverse lac. over it medial malleous [sic], fracture with displacement medial condyle rt femur and medial eppcondyle of rt tibia." The agreement was that the claimant would receive $30 a week from August 18, 1959, until terminated in accordance with the Workmen's Compensation Act. In June 1960 the claimant made a claim and request for hearing which was set "to determine extent of disability."
At the hearing the director stated that the agreement between the claimant and employer was approved by the board on September 1, 1959.
The claimant's testimony was that while at work a truck ran over his right leg, left toe, and right hand; that his fingernail was bloodshot and was not treated; that his back was hurt and had been hurting ever since; that he reported to Doctor Wood at the hospital where he was taken after the accident that his back was hurt; that he had received no treatment to his back except rubbing while in the hospital; that Doctor Wood treated only his leg and he was in the hospital five weeks; that he was not able to do any work at the time of the hearing. Doctor Warner Wood testified by deposition that after the accident he examined the claimant and he had multiple lacerations to his right lower leg and above the knee extending all the way down the leg to the ankle, but no other injuries, and that claimant stated then that he was having no difficulty with any other part of the body. He described the injuries to the skin, muscles, and bones of the leg and his treatment in detail. He rated the claimant's physical impairment of his leg 50%. He stated that on claimant's last visit to him, May 16, 1960, he complained of weakness in his hand, which the doctor believed was not caused by the accident, and that claimant had full range of motion in all joints of his hand. On cross-examination Doctor Wood stated that at the time of the injury he examined every portion of claimant's body except his back, which he did not examine because of the injury to the leg and the fact that claimant was lying flat on it; that he could have had an injury to his back and not known about it at the time, but that from August 11, 1959 to May 16, 1960, he never at any time complained of his back. A letter written by Doctor Wood was presented to him at the deposition and he testified that according to the letter, claimant had told him the truck ran over his left foot as well as his right leg. He stated that he did not know whether the claimant had arthritis or not; that claimant had some bruises about the toes of his left foot, for which no treatment was ever indicated, and of which he never complained.
Doctor Calvin Sandison testified by deposition that when he examined claimant on June 1, 1960, he had healed fractures of the leg, and severe sprain of the low back and arthritis of the low spine; that the motion of his back was limited; that he found tenderness and muscle spasm in the back and tenderness in the region of the groin; that claimant had told him he had a blueness at the time of the injury; that the blueness would almost have to come from a blow. He stated that in his opinion, if claimant's statement was correct that he had a strong back before, the arthritis was aggravated by trauma; that claimant's leg was totally disabled for manual labor, but he could do some sitting down; that claimant's disability was permanent since it was then a year from the time of the injury. On cross-examination Doctor Sandison testified in response to a hypothetical question, containing the assumption that claimant denied to Doctor Wood on his original examination and thereafter that he had any other injury except to his leg, that it would seem claimant's back condition did not have any connection with the accident if he denied there was any connection. On further cross-examination the stated that "with a disabling back, I would think [claimant] would know about it."
After the hearing the single director found that the claimant had a permanent injury to his right leg; that he was still unable to return to work; that he was entitled to resumption of compensation payments of $30 per week not to exceed 225 weeks, "the employer taking credit for all weeks paid after the 10-weeks healing period provided by law," and entered an award accordingly. The claimant appealed to the full board. After a review of the entire record the full board found as a matter of fact that the "claimant had multiple injuries, to wit: an injury to his left foot and also to the right leg," and amended the award to read ". . . the employer and/or insurer will commence payment of compensation beginning as of the date they ceased payment, at the rate of $30 per week, and continue until the date of the hearing, July, 1960, at which time they will discontinue payment of temporary, total disability and will be liable for a further period of 112 1/2 weeks, for a 50% permanent, partial disability to the right leg." The order stated: "The majority of the full board finds as a matter of fact and concludes as a matter of law that the employer and/or insurer will not be entitled to take credit for all over ten weeks, as this is clearly a multiple injury and not limited to the ten weeks' healing period. This is based on the case of London Guarantee and Accident Company v. Ritchey, 53 Ga. Appeals, p. 628." The employer appealed to Fulton Superior Court on the grounds, first, that the award, in violation of Code § 114-406, denied to the employer credit for all payments of compensation for temporary total disability paid in excess of the 10-week healing period, and second, that the uncontradicted evidence establishes conclusively that the injury to claimant's left foot caused no disability. The superior court affirmed the award of the full board, and the employer excepts to this judgment.
The case of London Guarantee Co. c. v. Ritchey, 53 Ga. App. 628 ( 186 S.E. 863), which the full board followed, held: 1. ". . . where . . . an employee receives an injury by burns, not only to three fingers, as expressly described in . . . [ Code § 114-406], but also to the `back of both hands and both wrists' and a surgical wound in his abdomen is necessitated to obtain grafts to replace the burned skin, for all of which he receives hospital treatment and by which he is wholly incapacitated for work, the injury not being restricted to the specific members . . . the total disability compensation is controlled by . . . [ Code § 114-404], with 350-weeks maximum, . . ." (2) "Under . . . [ Code § 114-709] where a second award is made, ending, diminishing, or increasing the compensation allowed by a previous award, the employee can not be required to account for or be charged with moneys actually paid under the first award. . ." (3) "Under the preceding holdings, there is no merit in the contentions of the employer and the insurance carrier that compensation for total disability was limited to ten weeks, and that the award of the Department of Industrial Relations was error because it failed to allow a credit, on the present allowance for partial `industrial handicap' . . . which was allowed and actually paid under a previous award. The original agreement as approved by the department, under which compensation was paid, shows that the injury consisted of `burns on back of both hands and both wrists.' Skin-grafts also were taken by making a wound in the abdomen, and hospital treatment was required. The total incapacity for work did not arise solely from the three fingers, for which the final specific allowances were made under . . . [ Code § 114-406]. Total disability compensation . . . as allowed by . . . [ Code § 114-404], was paid under the first award without any appeal or objection, for 55 2/3 weeks. After a refusal of further payments, the hearing, set down on application of the employee, was `to determine the status and percentage of disability and amount of compensation due in addition to that paid, if any.' The specific allowances then awarded for the partial loss of use of . . . [fingers] . . . did not include any amount for past total disability, but were expressly awarded `in addition to the 55 2/3 weeks already paid.' Accordingly, the previous compensation was not restricted to the ten-weeks limit of . . . [ Code § 114-406] but, as in cases of other injuries additional to those arising] from the specific members covered by . . . [ Code § 114-406] the award and payments made were proper under . . . [ Code § 114-404]. For this reason, and in the absence of any appeal from or attack upon the first award, which was entered under the signed agreement of the employer and the insurance carrier, and under which the total-disability compensation was actually paid without objection, they were not entitled to credit, on the present specific allowances for future partial industrial handicap, of any part of the previous payments. . ." (Emphasis supplied). Accord Liberty Mut. Ins. Co. v. Holloway, 58 Ga. App. 542 ( 199 S.E. 334); City of Hapeville v. Preston, 67 Ga. App. 350 ( 20 S.E.2d 202); Hartford Accident c. Co. v. Brennan, 85 Ga. App. 163 ( 68 S.E.2d 170).
The above quoted decision appears to follow from this reasoning: The original award, based upon the agreement of the parties, showed multiple injuries existed at that time. That award was not excepted to and the facts on which it was based — multiple injuries then existing — and the judgment resulting therefrom, was res judicata. Thereafter the employer would not be heard to contend that his payments made under the award, prior to its revision, were not due on account of the injuries described in the award. A later award based on a change in condition can stand independently when supported by the evidence.
Therefore, even though at the hearing in the present case positive evidence of disability resulting from the foot injury was not produced, the London Guarantee case is nevertheless applicable — because it was based on the finality of the former judgment — not on its correctness.
None of the authorities cited by the employer is in conflict with the London Guarantee case or with the judgment on which error is assigned. The employer's assignment of error shows no grounds requiring a reversal of the judgment of the superior court affirming the award of the full board.
Judgment affirmed. Felton, C. J., and Bell, J., concur.