Opinion
41637.
ARGUED NOVEMBER 4, 1965.
DECIDED JANUARY 28, 1966.
Workmen's compensation. Twiggs Superior Court. Before Judge Ward.
O. L. Crumbley, for appellant.
Harris, Russell Watkins, Philip R. Taylor, for appellee.
1. Where a claimant files an application in the superior court for a judgment pursuant to Code § 114-711 upon an approved agreement for payment of workmen's compensation, evidence of compensability under the Workmen's Compensation Act is irrelevant. The superior court has no authority to hear and decide any issue of fact respecting the right of claimant to receive compensation for a period prior to termination of the approved agreement.
2. Under the provisions of Code § 114-711, it was mandatory that the court render judgment for claimant in accordance with the award.
ARGUED NOVEMBER 4, 1965 — DECIDED JANUARY 28, 1966.
The claimant filed a petition in Twiggs Superior Court pursuant to Code § 114-711 to enforce an agreement for compensation approved by the State Board of Workmen's Compensation. Thereafter Georgia Kaolin Company and Reliance Insurance Company, the employer and insurer respectively, appellees here, filed a pleading which contained allegations to the effect that the board had made an award ending compensation, which superseded the agreement upon which claimant sought recovery. Two awards involving two separate and distinct injuries figure in the decision here. Claimant filed his petition for judgment upon an agreement approved by the board in Claim No. 14996-P awarding compensation for an injury occurring on June 19, 1963. Appellees based their defense upon an award by the board in Claim No. 389-P, an entirely different proceeding, denying compensation for a separate and distinct injury occurring on January 17, 1963. The latter award, together with evidence adduced before the board, was incorporated in appellee's pleading. On August 30, 1965, the superior court rendered judgment for claimant in the amount of $333, the sum which had accrued under the approved agreement in Claim No. 14996-P as of September 19, 1963. This is the date on which claimant had applied for a hearing to determine the employer's liability with respect to the separate and distinct injury of January 17, 1963 (Claim No. 389-P).
"Where an employee files an application in the superior court for a judgment and execution under the provisions of Code § 114-711, and upon the trial thereof it appears that the employer and insurance carrier have failed or refused to pay all of the compensation due under the award or pursuant to the approved agreement . . . the court has no discretion in the matter and it is mandatory that it enter judgment and issue execution for the amount shown by the evidence to be due." Sanders v. American Mut. Liab. Ins. Co., 105 Ga. App. 472, 473 ( 124 S.E.2d 923).
In the hearing upon a claimant's application for judgment upon an approved agreement or an award of the board, "The employer or its insurance carrier can have no defense except by virtue of (1) a final settlement receipt or other like agreement between the parties changing the terms of the original agreement, approved by the board, or (2) evidence that the statutory amount, or the amount called for by the agreement [or award] has been paid in full; or (3) an order of the board changing or allowing discontinuance of the compensation." Bituminous Cas. Co. v. Vaughn, 103 Ga. App. 660 ( 120 S.E.2d 190). See also: American Cas. Co. v. Herron, 102 Ga. App. 658, 659 (1) ( 117 S.E.2d 172); Armour Co. v. Youngblood, 107 Ga. App. 505, 508 ( 130 S.E.2d 786). To these three defenses may be added a fourth, namely (4) evidence that the employer has filed an application for a hearing upon a change of condition. Crowe v. Quilted Textile Corp., 113 Ga. App. 68. Evidence of compensability under the Act is irrelevant, and the superior court has no authority to hear and decide any issue of fact respecting the right of the employee to receive compensation for a period prior to termination of the award or approved agreement. Sanders v. American Mut. Liab. Ins. Co., supra, at p. 474 (2). "The function of the superior court as provided in Code § 114-711 is to enforce, not to change, the awards." City of Hapeville v. Preston, 67 Ga. App. 350, 357 ( 20 S.E.2d 202).
The award of November 17, 1964 in Claim No. 389-P was entered in a proceeding separate and independent from Claim No. 14996-P. It did not constitute "an order of the board changing or allowing discontinuance of the compensation" in Claim No. 14996-P. The superior court was not authorized to consider either the award in Claim No. 389-P or the evidence adduced in that claim. It does not appear that the agreement approved in Claim No. 14996-P has ever been modified or terminated according to law or that an application has ever been filed for a hearing based upon a change of condition.
The "good cause" required by Code § 114-711 is shown in the record by defendant's appearance and pleading to the effect that it is not liable for a portion of the award which would have accrued to claimant. This amounts to an admission of failure to pay part of the award, and no evidence is necessary under the circumstances. Thus the claimant is entitled to have judgment upon the approved agreement precisely according to the terms of the agreement.
Judgment remanded with direction that the superior court render judgment consistent with this opinion. Frankum and Hall, JJ., concur.