Opinion
39554.
DECIDED JULY 6, 1962. REHEARING DENIED JULY 27, 1962.
Workmen's compensation. Bartow Superior Court. Before Judge Davis.
Woodruff, Latimer, Savell, Lane Williams, John M. Williams, for plaintiffs in error.
Henson, Greene Greene, James E. Greene, contra.
An order of the Workmen's Compensation Board based upon a change in condition of the employee may not be made retroactive to a time prior to the filing of an application for a hearing to determine whether there was or had been such a change of condition.
DECIDED JULY 6, 1962 — REHEARING DENIED JULY 27, 1962.
J. M. Cooper suffered a compensable accident on August 3, 1960. He entered into an agreement with his employer, Etowah Construction Company, whereby he was to be paid compensation for total disability "until he should return to work and is payable from August 10, 1960 in accordance with the Workmen's Compensation Law." The agreement was filed with the board and approved by it September 7, 1960. However it appears that the attending physician informed the employee that he could return to work at the end of August, and that he in fact did so, doing the same work and at the same rate of pay for the same employer until some time during the following month when the construction job "was finished," and immediately took another job of the same type of work and at the same rate of pay for another employer, Coker Stoner, and continued on that job without loss of time except for shutdowns due to weather conditions, and was still so employed when a hearing was held on October 10, 1961, pursuant to a request therefor which had been filed by Etowah on June 14, 1961.
The deputy director found from the evidence submitted that "the claimant has undergone a change in condition sufficient to entitle him to no award of compensation by this board, as of September, 1960," and entered an order denying to the claimant any further compensation as of September, 1960.
Compensation payments were made from August 10, 1960, until the employee returned to his old job, after which they were discontinued. No final settlement receipt was ever signed, filed with or approved by the board.
On June 12, 1961, Etowah's insurer wrote a letter to the board informing them that compensation payments had been made from August 10, 1960, through August 31, 1960, totaling $90, that the attending physician had reported the employee able to resume his work after August 31, and that the employee had in fact done so, but had failed to sign a final settlement receipt. The letter closed with: "It is requested that on the basis of Dr. Swanson's and Dr. Dillard's medical reports that you issue an order terminating compensation as of August 31, 1960. In the event you do not do this, please set this case for a hearing to determine the rights of the parties."
On September 18, 1961, the employee filed in the superior court a petition for judgment and fi. fa. for unpaid compensation payments from September 1, 1960, up to the time of hearing on the petition and for rule nisi. Before hearing on the petition was had in the superior court, a hearing was held by a deputy director of the board on October 10, 1961, as a result of which on October 26, 1961, he made the findings and order above indicated. His findings were appealed by the employee to the full board, and after hearing there the findings and award of the director were made the findings and award of the full board. That award was then appealed to the superior court upon the ground, inter alia, that it was retroactive and thus contrary to law. The superior court reversed the board on the ground that its order finding that as a result of a change in condition of the employee he was entitled to no compensation after August 31, 1960, was retroactive, and remanded the matter to the board with direction that a further order be entered awarding compensation from and after August 31, 1960, through October 10, 1961, the date of the hearing before the single director. The employer here assigns error on that judgment of the superior court.
1. That an order based upon a finding that an employee has experienced a change in condition can not be made retroactive to a time prior to the date when an application for a hearing on that issue was filed with the board is settled by National Surety Corp. v. Nelson, 99 Ga. App. 95, 98 ( 107 S.E.2d 718) and similar cases. And see Complete Auto Transit v. Davis, 106 Ga. App. 369 ( 126 S.E.2d 909).
The issue of whether the application filed by the employer on June 14, 1961, was sufficient in form to obtain a hearing to determine whether there had been a change in the employee's condition under Code Ann. § 114-709 is not now before us and we make no ruling thereon. But if it were a sufficient application for such a hearing it is clear that no order based upon a change of condition could be made effective prior to the date of its filing, and a reversal was demanded since here the order, by its terms based upon a change in condition, was made effective as of September, 1960. However the board does have power to make such an order effective from the date of the filing of the application, and the superior court was in error in limiting the effective date to the date of the hearing.
See Anglin v. St. Paul-Mercury Indem. Co., 106 Ga. App. 395 ( 126 S.E.2d 913), where the court dealt with a similar application.
2. Nor is the issue before us as to whether the employer, or the insurance carrier here, is entitled to credit for wages paid during any period after the employee returned to work.
No finding on that matter or determination thereof has been made either by the board or raised by way of an affidavit of illegality to any fi. fa. issued from the superior court. See Complete Auto Transit v. Davis, 106 Ga. App. 369, supra.
Judgment reversed for reasons stated above. Carlisle, P. J., and Russell, J., concur.