Opinion
44083.
ARGUED JANUARY 6, 1969.
DECIDED FEBRUARY 5, 1969.
Workmen's compensation. Fulton Superior Court. Before Judge Etheridge.
Albert P. Feldman, for appellant.
Greene, Buckley, DeRieux, Moore Jones, James H. Moore, for appellees.
The judgment of the trial court, sustaining the board's award, is reversed with direction to the court to remand the case to the board for the entry of an award in accordance with this opinion.
ARGUED JANUARY 6, 1969 — DECIDED FEBRUARY 5, 1969.
On November 21, 1962, claimant sustained a compensable injury to his left knee, for which the State Board of Workmen's Compensation awarded him, on August 7, 1964, compensation for 10 weeks temporary total disability and 45 weeks for a 20% permanent partial disability to the leg. By a subsequent agreement approved by the board, the parties stipulated for compensation for 100% loss of use of the leg from October 12, 1964, for 179 weeks or until a change in condition. On June 8, 1965, there was filed with the board a request, by the employer, Rich's, Inc., and its insurance carrier, for a hearing based on a change in condition. On March 2, 1966, the full board adopted the finding of facts of the deputy director's October 5, 1965, award and awarded compensation from October 11, 1964, through December 18, 1964, based upon 100% disability to the leg, giving credit for the "25%" previously paid; from December 19, 1964, through January 15, 1965, based upon 50% loss of use of the leg, giving credit for the "25%" previously paid. It was further held that "[s]ince January 15, 1965, the disability having been reduced to 15% which is less than that previously paid, no further compensation is payable at this time." In the appeal from the judgment of the Superior Court of Fulton County sustaining the latter award, this court, by request of the parties and in an unreported opinion, reversed the trial court's judgment, with directions to remand the case to the full board. The case was remanded to the board, which entered an award on February 1, 1968, containing the following findings of fact (in addition to those hereinabove stated): That the original award had been paid in full by defendants; that the supplemental agreement took into consideration the previous 46 weeks' payment which claimant had received; that the request for a change in condition hearing was filed on May 27, 1965 (rather than June 7, 1965, as found by the awards of October 5, 1965 and March 2, 1966, or June 8, 1965, as appears from the copy of the request in the record); that the March 2, 1966, award stated that claimant had been paid for a 25% disability, whereas the record reveals that he had only been paid for a 20% disability; that all matters prior to May 27, 1965, are res judicata; that, subsequently to said date, claimant has suffered from a 15% disability to his left leg; that claimant has been compensated for a 20% disability; that, since he has been fully compensated for a disability greater than that which he had on May 27, 1965, the defendants cannot be directed to pay additional compensation for the reduced disability. The defendants were thereby authorized and directed to cease compensation payments as of May 27, 1965. The above award was affirmed by Fulton Superior Court, from which judgment claimant appeals.
"An agreement to pay compensation for the total temporary loss of use of a specific member is res judicata as to the degree of disability and the amount of compensation due the employee until such time as it is changed in a manner provided by law." Gentry v. Ga. Cas. c. Co., 107 Ga. App. 888 ( 131 S.E.2d 788), and cit. "The obligation to pay workmen's compensation under an approved agreement continues until, (1) full payment has been made of all compensation provided by the agreement or, (2) a subsequent award is made by the board based on some change in the claimant's physical condition or, (3) a new agreement based on some change in the claimant's physical condition is entered into and is approved by the board." Simpson v. Travelers Ins. Co., 117 Ga. App. 43 (1) ( 159 S.E.2d 294). The record in this case shows that full payment (for 225 weeks, based on total temporary loss of use of the leg) had not been made of all compensation provided by the agreement, nor was there any later agreement for compensation. The award made by the board based on some change in the claimant's physical condition cannot be made retroactive to a time before the application for hearing on a change in condition was filed and, although the employer may be permitted to stop making compensation payments after filing such application and although its liability from the date of the application will depend upon the final determination after the hearing of the claimant's physical condition as of the time of the filing of such application, its liability, before the date it files such application cannot be altered. Crowe v. Quilted Textile Corp., 113 Ga. App. 68 ( 147 S.E.2d 340) and citations. There is no provision of law for the allowing of credit to the employer for payments of compensation made pursuant to an approved agreement when it is determined, upon a change in condition hearing, that the claimant's actual disability, between the time of the execution of the agreement and the filing of the application for the hearing, had decreased, so as to be less than that specified by the agreement, for the compensation for which the employer is unconditionally liable. Hence, the board was correct in its finding that "all matters" prior to the filing of the application for a hearing based on a change in condition were res judicata, but, in allowing credit toward any liability which might be determined subsequently to the application for hearing for payments already made under the agreement prior to the application, the board overlooked the fact that the agreement was res judicata of the employer's liability for the amount of compensation therein stipulated, regardless of the degree of disability which may be found to have existed subsequently to the filing of the application.
The trial court erred in its judgment sustaining the award of the board, which judgment is hereby reversed with direction to the court to remand the case to the full board of the State Board of Workmen's Compensation for the purpose of entering an award in accordance with the above opinion.
Judgment reversed with direction. Pannell and Quillian, JJ., concur.