Opinion
40009.
DECIDED APRIL 2, 1963. REHEARING DENIED APRIL 23, 1963.
Workmen's compensation. DeKalb Superior Court. Before Judge Dean.
King Spalding, William H. Izlar, Jr., for plaintiff in error.
Smith, Field, Ringel, Martin Carr, Richard D. Carr, Williston C. White, contra.
1. Where in a workmen's compensation case the employee suffers a permanent injury, after which he and the employer enter into an agreement to pay compensation which is approved by the board, and thereafter the employee is employed at lighter labor for the same or higher wages, which work he is able to and does perform for an extended period of time, and the work thereafter becomes unavailable to him for reasons beyond his control or the control of the employer, the fact that the employee at the time of returning to work signed a final settlement receipt does not cast upon him the burden of showing a change for the worse in his physical condition occurring since the return to work in order to entitle him to a resumption of benefits under the act.
2. Where the evidence demands a finding that the employee is not by reason of his physical impairment totally disabled from engaging in remunerative employment, compensation should be based on Code Ann. § 114-405 for permanent partial disability rather than on Code Ann. § 114-404 for total disability.
DECIDED APRIL 2, 1963 — REHEARING DENIED APRIL 23, 1963.
Rufus Harrison, claimant in this workmen's compensation case, was injured while an employee of the defendant General Motors Corp. on December 3, 1958. The parties entered into an agreement to pay compensation at the rate of $30 per week "until terminated in accordance with the provisions of the workmen's compensation law" which was approved by the board December 19, 1958. A supplemental agreement was approved July 21, 1959, reciting that after returning to work the employee had again become totally disabled, and agreeing to continue payments at the same rate so long as disability continued unchanged. The employee again returned to work on August 6, 1959 and, with the exception of about three weeks, worked at light work (it being understood by all parties that his disability precluded him from bending, stooping, or lifting weights of over 50 pounds) at the same wages until January 19, 1961, at which time the employer was forced by its general employee contracts to remove the claimant from the assigned job in order to make it available to an employee with higher seniority. The claimant executed a final settlement receipt which was filed with the board on September 8, 1959, but not approved. When removed from the work he had been doing the employee was offered and attempted to perform another job more strenuous than that which he had had prior to his injury, but after three days was forced to leave and has not worked since. No question of payments prior to January 19, 1961, is involved here. The claimant made application for a hearing which was set to determine change of condition. The hearing director found that the claimant was satisfactorily performing light work commensurate with his ability and confined to small parts used in the assembly of automobiles until January 17, 1961, when he was transferred to duties which he was unable to perform because of injuries to the back and leg sustained in the original accident; that he has not worked and has been offered no employment such as the light work he was previously doing since January 19 and that "the fact that the claimant did do light work for a one year period and then when changed to a heavier job could not perform those duties constitutes a change in condition within the purview of the act, as it is incumbent upon the employer to provide work for an injured employee commensurate with his physical ability," and awarded continued compensation at the rate of $30 per week under the provisions of Code Ann. § 114-404. This award was affirmed on appeal by the full board with one dissent and thereafter by a Judge of the Superior Court of DeKalb County, the latter judgment being assigned as error.
1. In American Cas. Co. v. Herron, 102 Ga. App. 658, 660 ( 117 S.E.2d 172) this court stated that under three conditions only could an employer fulfill its obligation as to payment: by producing "(1) a final settlement receipt or other like agreement between the parties changing the terms of the original agreement, approved by the board; (2) evidence that the statutory amount, or the amount called for under the agreement, has been paid in full, or (3) an order of the board changing or allowing discontinuance of the compensation." The employer is, however, entitled to full credit for any week in which the employee has returned to work and worked for the same or higher wages. Complete Auto Transit, Inc. v. Davis, 106 Ga. App. 369 ( 126 S.E.2d 909). It should be observed that the first category mentioned in Herron is virtually meaningless as applied to settlement agreements, since as a matter of practice the board does not approve final settlement receipts, nor is there any provision for such a method of disposing of the claim in the compensation law. "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. The act does expressly provide for agreements to pay compensation ( § 114-705) for attorney's fees ( § 114-714) and for lump sum settlements ( § 114-417), all of which must be approved by the board as a prerequisite to their enforceability.
In the present case it is undisputed that the claimant has suffered a permanent injury which precluded him from working at the type of employment last offered him, although he had been able to perform lighter labor for approximately a year; that his disability still exists; that no new award or approved agreement has been entered, and that the claimant has not been been paid. It follows that there was no burden on the claimant here to show a change in his physical (as opposed to his economic) condition in order to be entitled to a resumption of payments. He is entitled to continuance of total disability payments provided the evidence does in fact show a continuance of total disability.
2. "The word disability as used in the compensation law means impairment of earning capacity. Blue Bell Globe Mfg. Co. 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)." Sears, Roebuck Co. v. Wilson, 215 Ga. 746, 753 ( 113 S.E.2d 611). In Wilson it was held that the evidence was insufficient to show a total loss of earning power at the time of the hearing, so that an award requiring resumption of payments under Code Ann. § 114-404 was unauthorized, and left open the question of an award of compensation for partial loss of earning capacity under Code Ann. § 114-405. "The incapacity is total so long as the injured employee, by reason of and on account of his injury, is unable to do any work of any character, and so long as he remains, for such reason, unable either to resume his former occupation or to procure any other sort of remunerative employment suitable to his impaired physical condition. Austin Bridge Co. v. Whitmire, 31 Ga. App. 560 (2) ( 121 S.E. 345)." General Accident c. Corp. v. McDaniel, 44 Ga. App. 40 ( 160 S.E. 554). "Where an employee has received an injury compensable under the compensation law, but is not thereby rendered totally unable to perform the work for which he was employed, but because of such partial incapacity he is not employed and is unable to obtain work, he has not suffered total incapacity compensable under that law." Travelers Ins. Co. v. Hurt, 176 Ga. 153 (1) ( 167 S.E. 175).
The claimant testified on this hearing that he was satisfactorily performing light work commensurate with his ability, and had been doing so for approximately a year, when the position he was filling was made unavailable to him for reasons not within his control or the control of the employer. It is therefore apparent that the claimant is not totally disabled, and is still able to perform work similar in nature to that which he had been doing, since his physical condition has not changed. Under Wilson, McDaniel and Hurt, supra, loss of work which the claimant is capable of performing for reasons not connected with his physical condition does not alone entitle him to be paid on the basis of total disability under Code Ann. § 114-404. We are not dealing here with a situation involving "made work" — that is, where the employer takes back an employee who is in fact totally disabled and, to use an illustration suggested by the plaintiff in error, sets him to cutting out paper dolls for a period of time and then discharges him. The labor involved here was regular work offered by the employer but which did not require stooping, bending, and lifting of heavy weights, and it was performed satisfactorily by the claimant for an extended period of time. It follows that the evidence does not sustain an award finding the employee totally disabled from performing remunerative labor.
The judge of the superior court erred in affirming the award directing payment of compensation under Code Ann. § 114-404. The case should be remanded with direction to enter a new award for compensation for partial disability under Code Ann. § 114-405, as is pointed out in the dissenting opinion filed in the award of the full board on the appeal to that body.
Judgment reversed with direction. Felton, C. J., and Eberhardt, J., concur.