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SEARS, ROEBUCK & COMPANY v. WILSON.
20604.
HEAD, Justice.
1. Where an award of compensation is made under the Workmen's Compensation Law, whether by agreement of the parties approved by the board, or by an award of the board, the sole provision of law for further consideration of the case is a review by the board based upon a change in condition.
2. While a permanent partial disability may result in a total loss of earning capacity, the evidence in the present case was insufficient to establish a total loss of earning capacity. Whether or not an award of compensation should be made based upon a partial loss of earning capacity is not now before this court for review.
It appears from the uncontroverted facts as revealed by the record in the present case that Mrs. Elsie Wilson was injured on December 9, 1954, while in the employ of Sears, Roebuck & Company, a self-insurer under the State Workmen's Compensation Law. On January 24, 1955, Dr. Robert Mabon performed a myelogram (a spinal test to identify or reveal a slipped disc) on Mrs. Wilson, at the Georgia Baptist Hospital. On February 25, 1955, Dr. Mabon operated and removed a disc, which was followed "by bone graft" or "spinal fusion" performed by Dr. Wood Lovell.
On April 22, 1955, a "Standard Form for Agreement as to Compensation" was entered into by the employer and employee which provided for the payment of "compensation at the rate of $22.50 per week based upon a weekly wage of $45.00," to begin on January 8, 1955, and to continue until "terminated in accordance with the provisions of the Workmen's Compensation Law." This agreement was received by the State Board of Workmen's Compensation on May 5, 1955, and approved on the same date.
The record does not disclose any application by the employer to the Workmen's Compensation Board to terminate the agreement for the payment of compensation or for a reduction in the amount thereof based upon a change of condition. The hearing had which is the basis of the present case was at the request of the employee "to determine the amount of accrued compensation due" and for penalties for failure of the employer to comply with rules of the board. The notice sent by the board to the parties was to the effect that a hearing would be had "based upon a change in condition to determine extent of disability and penalties if applicable."
After a hearing, the deputy director of the board made findings of fact, and an award in favor of the employee, which was approved and affirmed by a majority of the board. On appeal, the judge of the superior court in his judgment stated: "I can find no evidence in the record to support a reasonable finding of total economic disability resulting from the back injury and surgery," and the award of the board was reversed. On review, the Court of Appeals reversed the judgment setting aside the award of the compensation board. The application for certiorari was granted by this court.
On the hearing before the deputy director of the board, the employee testified in her own behalf. Her testimony on direct and cross-examination covers some 22 pages of the record. Not all of this testimony is germane to the questions now before this court. We will refer somewhat more fully to the testimony in the hearing before the deputy director than was done in the opinion of the Court of Appeals (see Wilson v. Sears, Roebuck & Co., 99 Ga. App. 710, 109 S. E. 2d 694).
The employee, after testifying as to the nature and character of her injury, and the resulting operation to remove the slipped disc, was asked whether her doctors (Drs. Lovell, King and Mabon) prescribed any medication or support for her back after the operation, to which she replied: "Yes, I had to wear the brace, and I had to do exercises." Question: "How long did you wear the brace, please ma'm." Answer: "I'm still wearing it."
It appears from the testimony of the employee that she returned to work at Sears, Roebuck & Company on August 3, 1955; her vacation began on August 8, and continued through August 27, 1955, and she took this vacation because she felt that she needed more time to get over her operation. She was originally employed as an "order filler," which required lifting, and she was injured while lifting a bolt of material. Upon her return to work, and because the employer knew that she could not lift, she was first assigned to working with the catalogue, which consisted of checking for mistakes which were made in the catalogue. Upon her return from vacation, she worked in the ticket office for a week or two, and then was sent to department 24 to put up returns, which consisted of merchandise returned by the customers. After some several weeks, she was put back on scheduling (the filling of orders). This job involved standing, bending, and lifting, and she was not able to perform this work. After reporting that she was not able to do it, she was assigned to wrapping, and later to inspecting, which consisted of inspecting jewelry, silverware, and clocks. In response to the question as to whether she was able to do this work, she answered: "I was nervous and I just didn't feel good, but I did it. I did that." She worked in this department until she quit on February 24, 1956.
Upon being asked why she quit, she stated: "Because I just wasn't able to work, I just didn't feel like working. I asked Mr. Pope before Christmas if he could lay me off, and he said 'No,' that he couldn't lay me off, and I told him, 'Well, I would have to quit.' And he asked me why, and I told him I just didn't feel like working. And he said, 'Are you sick?' And I said, 'No, I am not sick; I'm just nervous, and I just don't feel like working.' And he said, 'Well, we can't lay you off.' And I said, 'Well, I will just quit then.' And I quit."
In response to the question, "What position, if any, is the most comfortable to you?", she answered, "Laying down. When I lay down, I get some relief, but at nights I have the pains."
Prior to cross-examination, counsel for the employer stated: "We do not feel that the medical testimony will show any large amount due, but we are admitting that there is some, and we have made an offer of 20%, and are reiterating the making of that offer at the moment . . ."
On cross-examination it was developed that the employee had signed a card stating as a reason for her resignation, "To take care of my children," and that she had signed a statement to the Unemployment Security Agency as to the reason for her separation from her last job, "To care for my children . . . She had applied to Sears, Davison's, and Rich's for employment at a time when she knew that they were not employing anyone.
The employer introduced the testimony of Mrs. Lenna E. King, who testified that the employee stated at the time she left that she was leaving to stay with her children; and the testimony of George Geiger, that he took the statement from the employee at the time she left her employment. The employer also offered the testimony of Robert W. Gann, who stated that he was employed with a firm of insurance adjusters; he was employed by Sears, Roebuck & Company to make a status check on the employee; he went to Lithonia, Georgia, on November 30, went to the Wilson Grocery Store, and saw the employee working in the grocery store, waiting on customers; he was there about ten minutes.
The employee introduced the testimony of Dr. Alfred R. Hunt by deposition. He testified concerning the operation and the treatment that had been prescribed, and stated that Dr. Mabon, the neuro-surgeon, had placed the employee's disability at 25%, and he would not dispute Dr. Mabon's word. On cross-examination, in response to the question as to whether or not the employee "could engage in gainful employment at all," he stated that she could engage in employment that would not cause symptoms, and in response to the question, "What are symptoms?", he stated, "Pain, if it's enough pain."
Dr. Mabon testified by deposition as to the operation he had performed on the employee. He stated on direct examination that there were certain activities that the employee might be required to do that would promote discomfort, and that, "it has been my experience, and I tell my patient that once a person has had a slipped disc, whatever contributed to that disc, not necessarily the surgery involved in correcting I don't mean to justify the surgery but whatever occurred when that disc slipped probably weakened the back to a certain extent, depending on the individual, some people more than others. I don't think that a back is ever quite as strong again as it was before that event." Dr. Mabon placed the employee's disability as a permanent partial disability of approximately 25%.
The depositions of Dr. Wood Lovell, taken on behalf of the employer, were introduced. He testified as to the bone fusion that he had performed, and about the patient's condition generally. He stated that he felt the employee "should have a disability rating of approximately 15 or 20 percent."
The testimony on the subsequent hearing before the deputy director of the board was related primarily to the extent of the disability of the employee when she quit the employment after the agreement between the parties as to compensation. The employee contended that she quit because she was unable to do the work connected with any of the several jobs to which she was assigned. The employer contended that the employee quit to take care of her children.
It is strongly urged in this court that the employee's testimony was vague, contradictory, and equivocal, that it should be construed most strongly against her, and that, so construed, she would not be entitled to recover. See Davis v. Akridge, 199 Ga. 867 (2) (36 S. E. 2d 102), and cases cited. In a case where the plaintiff's testimony is subject to the objection here insisted upon, he may still recover if there is other testimony tending to establish his case. Ray v. Green, 113 Ga. 920 (39 S. E. 470); Steele v. Central of Georgia Ry. Co., 123 Ga. 237 (51 S. E. 438); Smaha v. George, 195 Ga. 412, 420 (24 S. E. 2d 385); Clark v. Bandy, 196 Ga. 546, 561 (27 S. E. 2d 17). The rule insisted upon by counsel for the employer is applicable in claims arising under the Workmen's Compensation Law where the testimony of the claimant is germane to the questions to be decided. In the present case the liability of the employer prior to the hearing before the Deputy Director of the Board of Workmen's Compensation is controlled by the applicable rules of law.
Where the employer and employee enter into an agreement for the payment of compensation, which is duly approved by the board, as in the present case, the award can not be thereafter amended, vacated, modified, or set aside by agreement of the parties or otherwise by any act of the parties. "No contract or agreement, written, oral, or implied, nor any rule, regulation or other device, shall in any manner operate to relieve any employer in whole or in part from any obligation created by this Title, except as herein otherwise expressly provided." Code 114-111; Tillman v. Moody, 181 Ga. 530 (182 S. E. 906).
The sole method whereby the award may be modified or terminated is upon a review by the board upon an application on the ground of a change in condition. In Lumbermen's Mutual Casu- alty Co. v. Cook, 195 Ga. 397, 399 (24 S. E. 2d 309), Mr. Justice Duckworth for the full court stated the rule: "That an employee has suffered an injury compensable under the terms of the Workmen's Compensation Act may be conclusively established by an agreement filed with and approved by the Industrial Board (Code, 114-705), or by an award of the board after hearing evidence ( 114-706, 114-707, 114-708). Regardless of which of these two methods is employed, it is a decision of the Industrial Board. If by agreement, it is voidable until approved by the board, but when it has been approved by that board, the statute makes available the processes of the superior court to enforce it. The decision or judgment of the board in the one case rests upon and is supported by the agreement of the parties, while in the other it rests upon evidence introduced at the hearing. By entering into the agreement and allowing it to receive the approval of the board, the parties thereby preclude themselves from thereafter contradicting or challenging the matters thus agreed upon. The only provision of law for further consideration of a case thus disposed of by an approved agreement is a review upon a change in condition, as provided in the Code, 114-709. The inquiry authorized by law to be made on the review is strictly limited to a change in condition." See also General Accident, Fire & Life Assurance Corp. v. Beatty, 174 Ga. 314 (162 S. E. 668); Liberty Mutual Insurance Co. v. Morgan, 199 Ga. 179 (33 S. E. 2d 336); South v. Indemnity Insurance Co. of North America, 39 Ga. App. 47 (146 S. E. 45); Rhindress v. Atlantic Steel Co., 71 Ga. App. 898 (2) (32 S. E. 2d 554); Maryland Casualty Co. v. Pitman, 72 Ga. App. 838 (35 S. E. 2d 319); Maryland Casualty Co. v. Stephens, 76 Ga. App. 723 (47 S. E. 2d 108); Travelers Insurance Co. v. Hammond, 90 Ga. App. 595 (83 S. E. 2d 576); Arnold v. Indemnity Insurance Co., 94 Ga. App. 493 (95 S. E. 2d 29).
It having been determined by this court in a full-bench decision that an award of the Workmen's Compensation Board, stands on the same basis, whether by agreement of the parties, or an award by the board after a hearing and the introduction of evidence ( Lumbermen's Mutual Casualty Co. v. Cook, 195 Ga. 397, supra), the employer in the present case was bound to continue payments under the agreement (less credit for wages paid) until such time as the approved agreement was superseded by a new award. "The original award is conclusive on both the employer and employee as to the extent of the disability of the employee, as found by the commission in such award, and as to the continuance thereof until superseded by a new award." Home Accident Insurance Co. v. McNair, 173 Ga. 566 (161 S. E. 131).
The requirement of the Workmen's Compensation Law that payments under an award by the board continue until a new award is made is not as strange or novel requirement, but is in entire harmony with the presumption of continuity recognized by the courts of the State. In Anderson v. Blythe, 54 Ga. 507, 508, it is stated: "The doctrine that a state of things once existing is presumed to continue until a change or some adequate cause of change appears, or until a presumption of change arises out of the nature of the subject, is an element of universal law. Without such a principle we could count upon the stability of nothing, and to assure ourselves of a set of conditions at one period of time would afford no ground for inferring the same conditions at any other period. This presumption of continuance is a well recognized principle of evidence: 1 Greenleaf, section 41; and we think its application was rightfully invoked by counsel in the present case." See also Coleman & Burden Co. v. Rice, 105 Ga. 163 (31 S. E. 424); American Nat. Bank v. Lee, 124 Ga. 863, 865 (53 S. E. 268); Tippins v. Lane, 184 Ga. 331 (191 S. E. 134); Clark v. Baker, 186 Ga. 65, 74 (196 S. E. 750); Glenn v. Tankersley, 187 Ga. 129 (7) (200 S. E. 709); Wilkins v. Georgia Casualty Co., 19 Ga. App. 162, 165 (91 S. E. 224); Griffin v. Miller, 29 Ga. App. 585 (116 S. E. 339); Salter v. Salter, 80 Ga. App. 263, 267 (55 S. E. 2d 868); Roberts v. Hill, 81 Ga. App. 185 (2) (58 S. E. 2d 465); Green's Georgia Law of Evidence, 95, 27.
v. Baird, 61 Ga. App. 298 (6 S. E. 2d 83). Thus a partial physical disability may result in a total loss of earning capacity. Employers Liability Assurance Corp. v. Hollifield, 93 Ga. App. 51 (90 S. E. 2d 681). The evidence in the present case, much of which had reference to the employee's condition some fifteen months prior to the hearing, was insufficient to show a total loss of earning power at the time of the hearing. Whether or not the employee may be entitled to an award of compensation for partial loss of earning capacity because of her permanent partial disability was not passed upon by the Deputy Director or the Board of Workmen's Compensation, and is not now before this court for review.
MOBLEY, Justice, concurring specially. I concur in the judgment of reversal but not for the reasons stated in the opinion.
I do not agree with the ruling that this was a continuing award under which the claimant was entitled to draw compensation until a new award was entered by the board, as the original award ordered payment "during disability," and when the claimant returned to her work, the disability, within the meaning of the judgment, ceased. Blue Bell Globe Mfg. Co. v. Baird, 61 Ga. App. 298, 299 (6 S. E. 2d 83). For the claimant to draw compensation again, there would have to be a new award based on change in condition.
I agree with the judge of the superior court, who reversed the award of the Workmen's Compensation Board awarding compensation to the claimant for total disability from the date she left her job at Sears, in his conclusion that there was no competent evidence to support the award.
The evidence of the claimant in support of her application based on change in condition was evasive, self-contradictory, and equivocal. She admitted that she told her employer that she was leaving her job to take care of her children, and that this was shown on her employment card. She testified that she also told him that she was sick and did not feel well. She admitted that she applied for employment at Davison's, Rich's, and Sears, knowing that they were not hiring anyone, and that she would not be able to get a job and that she applied for these jobs, not to get a job, but that she might draw unemployment compensation. Her claim for unemployment compensation was predicated upon her ability to work. The evidence shows that she, in addition to looking after her children, helped her husband in his store; and the claimant made no contention that she was entitled to draw compensation for some two years after she left her job, and then only when the carrier called on her for a final settlement receipt. Construing the evidence of the claimant most strongly against her, which must be done where the evidence is evasive, self-contradictory, equivocal, etc. ( Southern Ry. Co. v. Hobbs, 121 Ga. 428 (1), 49 S. E. 294; Steele v. Central of Georgia Ry. Co., 123 Ga. 237, 51 S. E. 438; Weatherford v. Weatherford, 204 Ga. 553, 554, 50 S. E. 2d 323), I do not think that there is any competent evidence in the record to sustain the award of the board that the claimant was suffering total disability at the time she left her employment with Sears and up to the date of the hearing. Medical evidence would support a finding that the claimant was 15 to 257o permanently, partially disabled. The evidence does not support a finding that this degree of disability has rendered it impossible for the claimant to hold a job, such as she is capable of holding, from the date she left her job at Sears.
Jack P. Turner, contra.
Wm. B. Spann, Jr., Daniel B. Hodgson, Alston, Sibley, Miller, Spann & Shackelford, for plaintiff in error.
ARGUED OCTOBER 14, 1959 -- DECIDED JANUARY 8, 1960 -- REHEARING DENIED MARCH 15, 1960.
Saturday May 23 00:21 EDT


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