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EMPLOYERS INSURANCE COMPANY OF ALABAMA et al. v. AMERSON.
40548.
Workmen's compensation. Lamar Superior Court. Before Judge Brown.
JORDAN, Judge.
The superior court in reversing an award of the State Board of Workmen's Compensation may in a proper case enter final judgment upon the findings of fact as made by the board; if there are no findings of fact upon which an award may be made, the superior court must remand the case to the board for the purpose of making findings of fact and, where necessary, to hear new evidence.
This is a workmen's compensation case. On August 14, 1957, the claimant suffered an injury arising out of and in the course of his employment, and an agreement as to compensation was entered into by the parties and approved by the board on February 19, 1958; and compensation was paid until the claimant returned to full-time employment at the same wages as before his injury. On July 16, 1959, the claimant, on the recommendation of his physician, accepted lighter work at a lesser salary and on October 29, 1959, the claimant requested a hearing before the State Board of Workmen's Compensation, the request for hearing stating that it was based upon a change in condition. Upon the hearing before a deputy director, it was ruled that the burden of proof of showing a change in condition was on the claimant, and the claim was denied on the ground that the claimant had failed to carry the burden of showing a change in condition, this being the only finding of fact made by the hearing director. The decision of the deputy director was affirmed by the full board who adopted the deputy's findings of fact and on appeal to the Superior Court of Lamar County, the award of the full board was affirmed.
This court in Amerson v. Employers Ins. Co. of Ala., 105 Ga. App. 336 (124 SE2d 496), in reviewing the judgment of the superior court held that since no final settlement receipt had been signed by the parties, the compensation agreement approved February 19, 1958, was conclusive as to the fact of total disability of the claimant; and the burden of showing a change in condition was therefore upon the employer and not upon the claimant as ruled by the board. The award of the board thus being based upon an erroneous theory of law and said award in favor of the employer not being demanded by the evidence, this court reversed without direction the judgment of the superior court which had affirmed the award.
On May 25, 1962, the judgment of this court was made the judgment of the Superior Court of Lamar County; and on June 8, 1962, the superior court entered an order which contained findings of fact that the claimant was still suffering from the compensable injury and that such injury caused his loss of earnings, a judgment for the claimant formulated on the basis of such findings of fact, and direction to the board to enter an award in conformity with the judgment of the superior court. On June 29, 1962, the board entered said award as directed. The employer and its insurer on July 5, 1962, filed a motion with the board to vacate said award, which motion was denied by the board on the same day; and on July 27, 1962, a new appeal predicated upon the statutory grounds as enumerated in Code 114-710 was filed in the Superior Court of Lamar County. The claimant then made application for attorney's fees under the provisions of Code Ann. 114-712, a hearing was conducted on April 26, 1963, and on September 7, 1963, the superior court entered judgment denying the appeal, and awarded attorney's fees in the amount of $1,000 to the claimant. The employer and insurer excepted to said judgment, bringing the case back to this court for review.
The claimant has filed a motion to dismiss the writ of error upon the grounds that the bill of exceptions was not retendered to the superior court for certification within thirty days after it was originally filed and tendered back to the plaintiff in error for correction.
1. The grounds of the motion to dismiss are unsupported by the record in this case and said motion is denied.
2. The exclusive authority to make findings of fact in claims under the Georgia Workmen's Compensation law is vested in the State Board of Workmen's Compensation. American Mut. Liab. Ins. Co. v. Sims, 62 Ga. App. 424 (8 SE2d 408). Neither the superior court nor this court has authority to substitute itself as a fact-finding body in lieu of the board. Pacific Employers Ins. Co. v. West, 213 Ga. 296 (99 SE2d 89); General Acc. &c. Corp. v. Titus, 104 Ga. App. 85 (121 SE2d 196); Callaway Mills Co. v. Hurley, 104 Ga. App. 811 (2) (123 SE2d 7). While the superior court in reversing an award of the board may in a proper case enter final judgment upon the findings of fact as made by the board, Code 114-710; American Mut. Liab. Ins. Co. v. Brock, 35 Ga. App. 772 (2) (135 SE 103), if there are no findings on which an award may be made, the judge of the superior court must remand the case to the board for the purpose of making findings of fact and, where necessary, to hear new evidence. Rutland v. Vaughn, 96 Ga. App. 499, 500 (3) (100 SE2d 609).
The only finding made by the board on the first hearing of this case was that the claimant had failed to carry the burden of proof of showing a change in condition and upon the reversal by this court of the judgment of the superior court affirming that award it was necessary for the case to be remanded to the board to make new findings of fact upon which to predicate an award. While it may be conceded that this court should have given such express directions upon reversal in Amerson, it was the clear implication of the decision that the employer should be accorded the right to a new hearing before the board in which it could present evidence in an attempt to carry its burden of showing a change in condition, said employer having been precluded from the necessity of doing so on the first hearing under the erroneous ruling of the director that the burden of proof was upon the claimant.
The reversal in Amerson was predicated on the conclusion that the award denying compensation was based on an erroneous theory of law and the further statement of the court that a finding was demanded "that the claimant was still suffering from the compensable injury and that to some extent it caused his loss of earnings" was a conclusion based on the evidence in the record as produced at a hearing proceeding on the theory that the claimant had the burden of proof. Such a finding might possibly not be demanded from the evidence produced at a hearing in which the employer has the burden of proof.
It necessarily follows therefore that the second award of the board, which was not predicated upon findings of fact made by the board but rather upon findings made by the superior court which was without power and authority to make the same, is "like a verdict which is wholly unsupported by any competent evidence" and is contrary to law. Pacific Employers Ins. Co. v. West, 213 Ga. 296, 298, supra.
The judgment of the superior court affirming said award and awarding the claimant attorney's fees in the amount of $1,000 was erroneous and must be reversed with direction that the case be remanded to the State Board of Workmen's Compensation for the purpose of hearing new evidence and entering a new award.
David L. Mincey, S. Gus Jones, Neal D. McKenney, contra.
Powell, Goldstein, Frazer & Murphy, Frank Love, Jr., Warner R. Wilson, Jr., for plaintiffs in error.
DECIDED FEBRUARY 25, 1964 -- REHEARING DENIED MARCH 6, 1964.
Friday May 22 21:36 EDT


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