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Lawskills.com Georgia Caselaw
AMERICAN EMPLOYERS' INSURANCE COMPANY et al. v. HARDEMAN.
35456.
Workmen's compensation. Before Judge McClure. Chattooga Superior Court. October 2, 1954.
QUILLIAN, J.
1. Where, in a workmen's compensation case, an award is entered fixing the extent of the claimant's disability, it may ordinarily be thereafter periodically reviewed by the State Board of Workmen's Compensation to determine whether there has been a change of the claimant's condition.
2. When a director of the State Board of Workmen's Compensation enters an award dismissing a claimant's application for hearing before that body to determine whether there has been a change in his condition since the original award granting him compensation, because the claimant is for some legal reason debarred from making such application, and no appeal is entered from such award, it is final, and precludes the filing of another application by the claimant based upon a change of condition.
An application for compensation under the Workmen's Compensation Law was filed by Roy Hardeman, herein referred to as the claimant, against Summerville Manufacturing Company, his employer, and American Employers' Insurance Company, the employer's insurance carrier. An award was entered on April 15, 1952, based upon an agreement between the claimant on the one part and the employer and the insurance carrier on the other. The agreement stipulated and the award adjudicated that the claimant was, on account of an injury arising out of and in the course of his employment, totally disabled, that 29.67 percent of his disability was caused by the injury sustained by him, and 70.33 per cent of his disability was due to systematic infirmity arising from illness not connected with the injury.
On May 18, 1953, the claimant filed with the State Board of Workmen's Compensation an application for a hearing to determine whether there had been such change in his condition as would entitle him to additional compensation. A motion was made to dismiss the application on the ground that the original award fixed the applicant's disability at 100 percent, and that consequently no change in his condition could be shown. The claimant contended that, though the original award did determine that he was totally disabled, it also showed that 70.33 percent of his disability was due to a systematic infirmity not connected with his injury, and 29.67 percent of his disability was due to the injury; that his systematic infirmity had improved; and that the condition created by the injury had grown worse, so that his disability arising from the former had decreased and his incapacity to work caused by the latter had increased. The single director of the State Board of Workmen's Compensation hearing the case sustained the motion and dismissed the application. The director's decision read: "In the instant case, application was made by the attorney for the claimant for a hearing on the ground of a change in condition and this matter was assigned to be heard before the undersigned Director at Summerville, Georgia, June 1, 1953, to determine the change in condition. When the case was called for hearing the attorney for the employer and/or insurance carrier moved to dismiss the hearing on the ground of a change in condition due to the fact that on April 15, 1952, a stipulated agreement was entered into by and between the parties at which time this claimant was paid $2,200, in lump sum, in full and final settlement of all compensation and attorney's fee due in this case. Paragraph six of said stipulation shows that the claimant was 100% totally and permanently disabled; that only 29.67% of the disability was the result of the accident and injury and the remaining 70.33% was from systemic causes, wholly unrelated to the accident and injury either directly or by aggravation. The parties agreed that the record of the Board be used as evidence in consideration of the motion and question before the Board. The agreement entered into and approved by the Board on April 15, 1952, was unappealed from and is therefore, as a matter of law, res adjudicata. I am of the opinion, based on the decision of Moore v. American Liability Insurance Co., 67 Ga. App. 259 (19 S. E. 2d 763) and also Rourke v. United States Fidelity &c. Co., 187 Ga. 636 (1 S. E. 2d 728), and numerous other decisions we could cite, are controlling in this case. In substance, those cases held that, if a man was 100% totally and permanently disabled, he could certainly not be any worse than 100% totally and permanently disabled.
I am of the opinion that it is mandatory upon the undersigned Director to sustain the motion of counsel for the employer and/or insurance carrier to dismiss the application for a hearing on the ground of a change in condition due to the fact that claimant has already been adjudicated 100% totally and permanently disabled and the motion of counsel for the employer and/or insurance carrier is hereby sustained.
"Award.
"Wherefore, the motion of counsel for the employer and/or insurance carrier is hereby sustained and the hearing requested on the ground of a change in condition is hereby dismissed, based on the record in this case. And it is so ordered--This the 24th day of June, 1953."
Thereafter the applicant made a second application based upon a change of condition, the same motion as was made to dismiss the first was again interposed, and the same insistence of the parties was presented to the deputy director hearing that application. Thereupon, an award was entered dismissing that application. The decision of the deputy director was: "The above-stated case came on to be heard by briefs, the same being: Whereby, the claimant filed application from a hearing to determine change in condition. At the Summerville hearing on April 28, 1954, the case involved the question of law. There being two awards in the file of the record of the case in which the claimant was adjudicated 100% disability; neither of these awards being appealed from, certainly the man could not be more than 100% permanent disabled any condition. These awards being rendered, one on the 24th day of May, 1953, and the other being a lump sum settlement on the 11th day of April, 1951, which was approved on the 15th day of April, 1952, which was agreed to and signed by the claimant in which he says he is totally and permanently disabled, even though only part of his disability is caused by the accident and neither of these awards are appealed from. Inasmuch as this was an application to show a change in condition, defendant having made a motion to dismiss the application, which motion is hereby sustained; and I further rule as a matter of law that the question raised by the application for a hearing on a change of condition is res adjudicata as to the facts as of that time. Even though the agreement is erroneous it cannot be set aside.
"Award.
"Wherefore, the motion of counsel for the employer and/or insurance carrier is hereby sustained and the hearing requested on the ground of a change in condition is hereby dismissed, as the same is res adjudicata, based on the record in this case. And it is so ordered. This 15th day of June, 1954."
In a workmen's compensation case the award of compensation to the claimant is final in so far as it adjudicates that the claimant sustained an accidental injury arising out of and in the course of his employment resulting in disability. The award also determines the extent of the claimant's disability at the time of its rendition. But since it is a matter of common knowledge devolved from human experience that physical conditions almost invariably improve or deteriorate with the passing of time, our law wisely provides that the extent of the claimant's disability is subject to periodic review. Rhindress v. Atlantic Steel Co., 71 Ga. App. 898 (32 S. E. 2d 554); Code 114-709.
In the instant case the initial award was predicated upon an agreement between the claimant and the insurance carrier that the claimant was totally disabled, that 29.67 percent of his disability was caused by a compensable accident, and 70.33 percent from an infirmity not connected with the accident. The award accordingly adjudicated that the claimant was entitled to compensation for 29.67 percent disability. In these circumstances it is obvious that the claimant was entitled to apply for a hearing to determine whether there had been a change in his condition since the initial award was entered.
On the hearing it would have been permissible for the claimant to show by competent evidence that the extent of his disability due to the systematic infirmity had, since the original award, diminished on account of improvement in that condition, and that the degree of his disability arising from the injury had increased on account of deterioration in the condition caused by the injury. Thus, though the original award did adjudicate that the claimant was totally disabled, in the peculiar circumstances of this case, that award was no bar to a subsequent application based upon a change of his condition, and this is true even though the original award had been fully satisfied prior to the filing of the application. The holdings in Rourke v. United States Fidelity &c. Co., 187 Ga. 636 (1 S. E. 2d 728), and Moore v. American Mutual Liability Ins. Co., 67 Ga. App. 259 (19 S. E. 2d 763), are not in conflict with what is held here, nor do they furnish any basis for a contrary view.
The award of June 24, 1953, dismissing the claimant's application for hearing to determine the question of a change in his condition, was error, and not supported by the decisions therein cited.
However, it had the effect of solemnly and finally adjudicating that for a particular legal reason therein assigned the claimant did not have the right to apply for additional compensation on account of a change of condition.
And, unlike an award which simply denies an application on the ground that the evidence does not show a change in the claimant's condition, the award had the effect of permanently denying to the claimant his right to file again an application of that nature.
The judge of the superior court erred in reversing the award of the deputy director, for the reasons assigned.
Judgment reversed. Felton, C. J., and Nichols, J., concur.
Archibald A. Farrar, contra.
John M. Williams, for plaintiff in error.
DECIDED FEBRUARY 7, 1955.
Saturday May 23 02:45 EDT


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