Opinion
41581.
SUBMITTED OCTOBER 5, 1965.
DECIDED NOVEMBER 10, 1965.
Workmen's compensation. Thomas Superior Court. Before Judge Lilly.
Saul Blau, for plaintiff in error.
Altman Johnson, Charles F. Johnson, contra.
1. The filing of a compensation settlement agreement with the Workmen's Compensation Board reciting that a stated total sum has been paid to the employee in full settlement of all claims for compensation on account of the injury received and that the employee has returned to work does not discharge the employer's liability for the payment of compensation; only an award based upon a change in the employee's physical condition or an approved agreement containing stipulated facts showing a change can alter or terminate the liability short of full payment in terms of the Act.
2. The employer is entitled to credit against his liability for the payment of compensation during any period when the employee returned to work at his usual wage.
SUBMITTED OCTOBER 5, 1965 — DECIDED NOVEMBER 10, 1965.
The employee suffered a disabling injury while in the course of his employment June 28, 1963. He returned to work July 8, but because of a recurrence of the disability stopped August 8, and was out until September 23 when he went back to work, continuing until December 24 and was out until March 7, 1964, when he went back to his job. Compensation was paid him, under agreement duly approved by the board, for the periods when the employee was off the job. Upon the recurrence of disability each time a supplemental agreement was filed and approved, reciting that the employee had theretofore on a certain date returned to work at his regular wage, but that he had suffered a recurrence of temporary disability on a subsequent date as of which the employer would resume the disability payments. Finally, on March 8, 1964, the employer filed with the board a compensation settlement receipt signed by the employee reciting that a total of $564 compensation payments had been made to him, including a payment of $24 on the date of the receipt, all on account of the injury of June 28, 1963, and that the payments were in final settlement and satisfaction of all claims for compensation due under the agreements of the employer to pay compensation on account of the injury, and that "temporary disability ceased on the 8th day of March, 1964."
The settlement receipt was filed with but never approved by the board. No application for any change of award based upon a change in the employee's condition was ever made. The employee has now filed in the superior court a petition or application for judgment against the employer for compensation payments accruing under the approved agreement, alleging an outstanding balance of $1,800 to be due. The employer by way of answer alleged that all payments accruing up to March 8, 1964, were fully paid, that the employee returned to work on that date and continued on the job until October 10, 1964, when he was discharged for cause.
Both the employer and the employee moved for a summary judgment based upon the pleadings, affidavits and a certified copy of all records from the board. The employee by amendment reduced the amount for which judgment was sought to $1,299.90. The employee's motion was denied and that of the employer was granted.
An agreement to pay compensation approved by the board amounts to an award for compensation in terms of the agreement. Code § 114-705. In the absence of an appeal it is res judicata as to the obligation of the employer to pay compensation thereunder. Manus v. Liberty Mut. Ins. Co., 100 Ga. App. 289 ( 111 S.E.2d 103). That obligation continues until full payment has been made in terms of the Workmen's Compensation Act, or until the award is changed upon an application based upon some change in the employee's physical condition. Aetna Cas. c. Co. v. Dunagan, 111 Ga. App. 801 ( 143 S.E.2d 423). A settlement agreement is not binding, though filed with the board, until it has been approved. Code § 114-106, as amended by the Act of 1963 (Ga. L. 1963, pp. 141, 142; Code Ann. § 114-106). The agreement of March 8, 1964, not having been approved, is not binding and does not affect the liability of the employer to make compensation payments. An adjudication of a change in condition does not result from an approved agreement unless facts are stipulated in it showing a change in the employee's condition. Nationwide Mut. Ins. Co. v. Hamilton, 112 Ga. App. 452. "The fact that each time the claimant went back to work he signed an agreement reciting that `liability for temporary total disability ceased on' the day he returned to work and this agreement was approved by the board, does not amount to a finding or an award that total disability itself had ceased but merely that the employer, while the claimant was employed at his usual wage, was not liable for disability payments." Employers c. Assur. Corp. v. Whitlock, 111 Ga. App. 440, 442 ( 142 S.E.2d 77). We regard this declaration as a holding that during the period or periods when the employee is back on the job with his employer at his usual wage the employer is entitled to credit against his liability for compensation during that time. But if the employment is terminated, whether voluntarily or otherwise, the liability continues until an award discharging or changing the liability is entered based upon a change in the employee's condition, and that award is effective only from the time it is applied for.
The record in this case does not indicate that any application for a change in the award, as represented by the approved agreement to pay compensation, has been made. Consequently, the employer's liability for compensation payments continues and the employee is entitled to have judgment entered in his behalf for all accrued payments for which the employer is not entitled to credit.
The determination as to what credits the employer may be entitled to is one to be made by the Board of Workmen's Compensation. Code §§ 114-711, 114-715. See Taylor v. Woodall, 183 Ga. 122, 125 ( 187 S.E. 697); Fireman's Fund Ind. Co. v. Wade, 97 Ga. App. 125 (1, 2) ( 102 S.E.2d 640); Carpenter v. Newcomb Devilbiss Co., 111 Ga. App. 472 (2) ( 142 S.E.2d 381).
In the posture here the superior court can do no other than enter judgment upon the basis of a certified copy of the award, or the approved agreement which amounts to an award, less any credits admitted by applicant. Cf. Bituminous Cas. Co. v. Vaughn, 103 Ga. App. 660 ( 120 S.E.2d 190). If the employer contends there are additional credits to which it is entitled, the remedy lies with the board, or by affidavit of illegality. If, upon application for a determination of that matter, the board renders an award by which the amount due is other than that for which judgment has been rendered, the employer may apply to the superior court, presenting a certified copy of the new award, and have the judgment modified accordingly.
Judgment reversed. Nichols, P. J., and Pannell, J., concur.