Opinion
38584.
DECIDED FEBRUARY 20, 1961.
Workmen's compensation. Telfair Superior Court. Before Judge Whaley.
Smith, Field, Ringel, Martin Carr, Charles L. Drew, for plaintiffs in error.
Dewey Hayes, contra.
Under the circumstances of this case, the superior court did not err in recommitting the case to the State Board of Workmen's Compensation to hear further evidence on the question of the employee's disability after he had accepted an operation.
DECIDED FEBRUARY 20, 1961.
The plaintiff, Richard Horton, was employed by the Telfair Motor Co. as a mechanic at a weekly wage of $60.07. On September 18, 1959, while he was working under an automobile, it slipped off the jack causing injuries to the plaintiff about the face and abdomen. It is stipulated by the parties that the accident arose out of and in the course of the plaintiff's employment. The action was brought against Telfair Motor Co., as employer, and the St. Paul Fire Marine Insurance Co. as the insurer. According to the evidence adduced at the hearing conducted by a single director of the State Board of Workmen's Compensation, the plaintiff suffered injury to his pelvic region which affected his groin, private parts, and caused a possible hernia. The single director rendered an award granting the plaintiff $30 per week beginning September 26, 1959, and continuing until he was able to return to work, not to exceed 400 weeks. In addition, the director ordered that the defendants tender an operation to the plaintiff as recommended by his physician at a cost not to exceed $1,500. Due to some conflict in testimony between two doctors who were familiar with the plaintiff's condition, the defendants appealed the award to the full board as being excessive. The full board, on April 19, 1960, amended the award, reducing the maximum weekly compensation to $30 per week commencing September 26, 1959, and concluding six weeks after tender and acceptance of an operation by the plaintiff. No other part of the award was changed. On April 20, 1960, the plaintiff appealed the award of the full board to the Superior Court of Telfair County, and on April 21, 1960, the defendant, acting pursuant to the award, tendered the plaintiff the needed operation. The plaintiff by letter dated April 23, 1960, accepted the operation which was performed on May 26, 1960. On August 5, 1960, the case was heard by the Judge of Telfair Superior Court at which time the defendants moved to dismiss the appeal on the ground that the issue was moot, the plaintiff having allegedly accepted the benefits of the award of the full board on April 19, 1960.
The court entered its order recommitting the matter to the State Board of Workmen's Compensation for the purpose of taking additional testimony, and it is to this order of the court that the defendants except.
The only question before this court is whether or not a claimant under workmen's compensation is required to or may accept the benefits of a portion of an award while the award is on appeal without estopping himself from pursuing his appeal. The defendants in support of their contention that estoppel does operate as against the plaintiff under these facts, cite Coley v. Coley, 128 Ga. 654, 655 ( 58 S.E. 205); Owens v. Read Phosphate Co., 115 Ga. 768 ( 42 S.E. 62); Stallings v. Shell Petroleum Corp., 54 Ga. App. 359 ( 188 S.E. 50); and Kent v. U.S. Fidelity c. Co., 54 Ga. App. 400 (1, 2) ( 187 S.E. 887). These cases hold that a plaintiff is not entitled to collect a judgment on one count and at the same time maintain exceptions to another count, or accept a judgment in part and reject it in part. The instant case, however, is distinguishable from those cited by the defendants by virtue of governing workmen's compensation statutes. Code § 114-412 provides: ". . . All hernia . . . so proven to be the result of an injury by accident arising out of and in the course of the employment, shall be treated in a surgical manner by radical operation. . . In case the injured employee refuses to undergo the radical operation for the cure of said hernia, no compensation shall be allowed during the time such refusal continues." Code Ann. § 114-501 provides: "The refusal of the employee to accept any medical, hospital, surgical, or other treatment when ordered by the State Board of Workmen's Compensation shall bar said employee from further compensation until such refusal ceases, and no compensation shall at any time be paid for the period of suspension unless in the opinion of the State Board of Workmen's Compensation the circumstances justify the refusal, in which case, the State Board of Workmen's Compensation may order a change in the medical or hospital service." It is contended by the defendants that the plaintiff, if he was dissatisfied with the award of the full board, should have refused the tender of surgery. We cannot agree. The award of the single director and the award of the full board are in accord concerning the operation. The first award "ordered" the tender of the operation and the second award did not attempt to modify the first in that particular. Had the defendant refused to accept the tendered operation he would have been barred from receiving compensation. Bituminous Cas. Co. v. Dyer, 62 Ga. App. 279, 281 ( 7 S.E.2d 415); Code § 114-501, supra. It is unthinkable that, where the surgical award was not the basis of appeal, the injured employee painfully risking further complication and danger, should be required or even be tempted to await an operation pending final adjudication of the merits of the weekly compensation claim. To decide this case otherwise would in effect place the plaintiff in a very unfortunate dilemma. To refuse the operation would be to lose compensation, and to accept the operation would be to give up the right to appeal for more adequate and just compensation of the event of the failure of the operation to effect a complete cure. It is also interesting to note in the defendant's motion to dismiss, that tender of the full award of the full board is alleged. On the face of the motion this does not seem to be the fact. The motion alleges: "(d) Compensation from May 14, 1960, through June 4, 1960, was withheld pending dismissal of claimant's appeal which he has refused to do, which compensation has been tendered to claimant in full compliance with the award of the board, dated April 19, 1960." The award provides for compensation for a period of six weeks after tender and acceptance of the operation on the claimant by Dr. Jardine or some other physician of the claimant's choice. The date of the offer was April 21, and the date of the alleged acceptance was April 23. The operation was performed on May 26. The award reads: "tender and acceptance of the operation." We construe that to mean what it says, i.e., acceptance of the operation and not a mere statement of intention to have an operation. Since the date of the operation was May 26, the employer did not tender to the employee the amount awarded by the board, namely, the amount for six weeks after the operation. Such a tender would have included the time from May 26 through July 7. Since the employer did not make a tender in full compliance with the board's order, the motion to dismiss or have the appeal declared moot was without merit. What would be the answer if a full tender had been made it is not necessary to decide. It would seem, however, that such an answer would depend on the terms under which such a tender was accepted by the employee and whether the operation cured the disability, etc.
The court did not err in recommitting the case to the State Board of Workmen's Compensation for the purpose of taking additional testimony for the reason that the State Board of Workmen's Compensation is without authority to determine in advance whether the operation would be successful or that disability would cease by July 7.
Judgment affirmed. Nichols and Bell, JJ., concur.