Dodgen v. St. Paul Fire c. Ins. Co.

Full title: DODGEN v. ST. PAUL FIRE MARINE INSURANCE COMPANY et al

Court: Court of Appeals of Georgia

Date published: Apr 5, 1976

227 S.E.2d 64 (Ga. Ct. App. 1976)

227 S.E.2d 64

Opinion

51917.

SUBMITTED MARCH 2, 1976.

DECIDED APRIL 5, 1976. REHEARING DENIED APRIL 29, 1976.

Workmen's compensation. DeKalb Superior Court. Before Judge Tillman.

Jack Dorsey, for appellant.

Savell, Williams, Cox Angel, Elmer L. Nash, for appellees.

QUILLIAN, Judge.

This appeal in a workmen's compensation case arises out of the affirmance by the superior court of the full board's decision. During the hearing to modify an agreement as to weekly wages and weekly compensation it developed that through error the appellees (employer and insurer) had overpaid the appellant (claimant). The administrative law judge directed that the employer "recommence compensation as of date of last payment at the rate of $35.75 per week and to continue for a period not to exceed 400 weeks or until claimant undergoes a change in condition. The full board adopted the award of the administrative law judge and "further authorizes the employer/insurer to take credit against future payments for the overpayment." Held:

Code § 114-415 provides: "Any payments made by the employer to the injured employee during the period of his disability, or to his dependents, which by the terms of this Title were not due and payable when made, may, subject to the approval of the State Board of Workmen's Compensation, be deducted from the amount to be paid as compensation: Provided, that in the case of disability such deductions shall be made by shortening the period during which compensation must be paid and not by reducing the amount of the weekly payments."

The appellant contends: "It was harmful error for the Board to authorize appellees to take credit against future payments for the overpayment and not directing that such deductions shall be made by shortening the period during which compensation must be paid and not by reducing the amount of the weekly payments." We agree. Therefore, this case is reversed with direction that the trial court remand the case to the full board to take action (within their discretion, Davis v. Cobb County, 106 Ga. App. 336, 339 ( 126 S.E.2d 710)), in compliance with the provisions of Code § 114-415 and any other applicable law.

Judgment reversed with direction. Deen, P. J., and Webb, J., concur.

SUBMITTED MARCH 2, 1976 — DECIDED APRIL 5, 1976 — REHEARING DENIED APRIL 29, 1976.