Opinion
40353.
DECIDED SEPTEMBER 16, 1963.
Workmen's compensation. Carroll Superior Court. Before Judge Knight.
Woodruff, Savell, Lane Williams, John M. Williams, for plaintiffs in error.
E. B. Jones, Jr., Howe Murphy, Harold L. Murphy, contra.
The State Board of Workmen's Compensation has authority, after approving an agreement based on an injury to a specific member, to award compensation, upon a hearing based on "change of condition," for an incapacity to labor resulting from the same accident which caused the injury to the specific member but which did not itself incapacitate the claimant until after the original agreement was approved.
DECIDED SEPTEMBER 16, 1963.
On November 3, 1961, Claude A. Truett, while an employee of Atlanta Metallic Casket Company, was injured when a casket fell on his right leg. An agreement to pay compensation for such disability was entered into and approved by the State Board of Workmen's Compensation. After the claimant returned to work on January 2, 1962, and a final settlement receipt was received by the board on January 20, 1962, showing such fact, the claimant continued to work until the middle of March, 1962, when he was unable to continue due to back pain. Thereafter, he filed a request for a hearing based upon "change of condition" and an award finding a total incapacity to labor was rendered. The insurer and employer appealed such award to the Superior Court of Carroll County where the judgment of the single director was affirmed. It is to such adverse judgment that the employer and insurer now except.
The employer and the insurer contend that the original agreement entered into between the parties and approved by the board showing an injury to the claimant's leg only, under the doctrine of res judicata, estops the claimant from later claiming or being awarded compensation for injury to his back arising from the same accident.
Under the decisions in Automatic Sprinkler Corp. v. Rucker, 87 Ga. App. 375 ( 73 S.E.2d 609), and General Motors Corp. v. Bowman, 107 Ga. App. 335 ( 130 S.E.2d 163), an award based upon "change in condition" is authorized where an agreement between the parties, approved by the board, shows a compensable accidental injury although it does not show the specific injury for which compensation is then sought. As was said in Automatic Sprinkler Corp. v. Rucker, supra, and quoted in General Motors Corp. v. Bowman, supra: "The phrase, `change in condition,' within the meaning of Code § 114-709, is not subject to a narrow construction and does not necessarily relate to a change in condition in respect of a particular or specific injury only, but rather that said phrase has a broader meaning and includes any change in the physical condition of the claimant subsequent to the entering of the award which stems or results from the accident in question, and that two specific injuries, such as in this case an injury to the wrist and an injury to the back, may both result from the same accident and may be compensated for as such, even though both do not develop or arise or become known at the same time." The employer and the insurer could contend that the disability did not stem from the accident of November 3, 1961, Pepperell Mfg. Co. v. Mathis, 92 Ga. App. 85 ( 88 S.E.2d 201), or that there was no disability from such injury then existing, Travelers Ins. Co. v. Haney, 92 Ga. App. 319 ( 88 S.E.2d 492), but the agreement which showed an injury to the claimant's leg did not estop the claimant, under the doctrine of res judicata, from showing a present disability to his back arising from or aggravated by the injury of November 3, 1961.
The evidence adduced at the hearing and the deposition of the claimant's physician, later submitted, authorized the award, and the Superior Court of Carroll County did not err in affirming it.
Judgment affirmed. Frankum and Jordan, JJ., concur.