DECIDED JANUARY 25, 1962. REHEARING DENIED FEBRUARY 13, 1962.
Workmen's compensation. Lamar Superior Court. Before Judge Brown.
David L. Mincey, S. Gus Jones, Neal D. McKenney, for plaintiff in error.
Powell, Goldstein, Frazer Murphy, Frank Love, Jr., contra.
An award of the State Board of Workmen's Compensation based on an erroneous theory of law and not authorized by the evidence must be reversed.
DECIDED JANUARY 25, 1962 — REHEARING DENIED FEBRUARY 13, 1962.
On August 14th, 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 compensation was paid until the claimant returned to full-time employment at the same wages as before his injury. On July 16th, 1959, the claimant, on the recommendation of his physician, accepted lighter work at a lesser salary and on October 29th, 1959, the claimant requested a hearing before the State Board of Workmen's Compensation. The deputy director found against the claimant and the award read as follows: "The above matter came on regular to be heard before the undersigned on February 16, 1960, in Barnesville, Georgia. The hearing was called at the request of the claimant for the purpose of showing a change in condition. An agreement was entered into by the parties and approved by the Board on February 19, 1958, agreeing to pay and receive compensation at the rate of $30.00 per week based on an average weekly wage of $132.00, as the result of a compensable injury in the nature of compression fracture of the L-1 vertebrae of August 14, 1957. Compensation was paid for temporary total disability under this agreement until June 10, 1959. On or about that date the claimant returned to work at the same wage. From the evidence procured at the hearing, I find that after the claimant returned to work he worked for a period of approximately eleven months doing the same general type of work as before his accident but lighter in nature. On July 19, 1959, he took employment as an electrical inspector earning an average weekly wage of $75.00 per week. This work required very little physical exertion on the part of the claimant. The claimant further testified that on the advice of his physician, Dr. Sam Patton, and because he could no longer do the heavier work, he accepted the light work with the city. I find further that the claimant has been suffering from a rheumatic heart for many years. Dr. Walter P. Barnes, Jr., treated the claimant following his accident on August 14, 1957, and followed him throughout his period of total disability. He testified that his last examination of the claimant was on July 24, 1959, and at that time he could find no evidence of any increase in disability over the time of his return to work in June of 1958. Dr. Sam Patton, who has treated the claimant for his heart condition for a considerable length of time, testified that this heart condition has progressed over a period of time and coupled with the pain the claimant was having in his back caused him to recommend that the claimant seek lighter employment. The burden of proof is upon the claimant to show that he has sustained a change of condition and that such worsening of his condition has resulted in a loss of earnings. Here the claimant has been required to seek lighter employment due to a combination of events. I fail to find sufficient evidence in the record to show that the loss of earnings of the claimant is a direct result of his injury of August, 1957, but is the result of a number of factors. I, therefore, find that the claimant has not sustained a change in condition and is not entitled to further compensation. Wherefore, award based on the above and foregoing findings of fact and conclusions of law, the claim of Arthur B. Amerson, Sr., for additional compensation based on a change in condition is hereby denied."
Thereafter, on appeals to the full board and to the superior court of Lamar County judgments adverse to the claimant were rendered and the claimant excepted to each adverse judgment.
An agreement was entered into between the parties and approved by the State Board of Workmen's Compensation on February 19, 1958, wherein the claimant was paid the maximum compensation for a compensable injury, which occurred on August 14, 1957. No further agreement or award was entered into until the deputy director found against the claimant on August 10, 1960, and there was no final settlement receipt signed, according to the record, when the claimant returned to full-time employment in June, 1958.
The award now complained of was based on the theory that the claimant could receive compensation only if he showed that his condition was worse than it was at the time he returned to work, and since there was no evidence, according to the deputy director, that the claimant's condition was worse he had not carried the burden of proving a change in condition.
Such finding was based on an erroneous theory of law and the award denying compensation was not otherwise supported by the facts. The agreement approved February 19, 1958, never having been appealed, reversed, or modified by any additional agreement, was conclusive as to the fact of total disability. While the evidence that the claimant had since been employed at the same wages may have tended to show change in the claimant's condition for the better, it was not evidence that he no longer suffered any physical infirmity as the result of his compensable injury (had a final settlement receipt, approved by the Board, been signed, a different situation could of course have existed), and in view of the claimant's testimony that he was placed on "light" work and could not do heavy work as he had done previously, together with the testimony of the only physician who treated the claimant for his back injury that he rated him with a fifteen percent permanent disability to his back at the time he discharged him in June, 1958 (the month the claimant first returned to work), and the testimony of the physician who treated the claimant's heart condition that he advised him to take a job with less exertion and that one reason for so advising him to restrict his physical exertion, in addition to the heart condition, was his back condition, a finding that the claimant was still suffering from the compensable injury and that to some extent it caused his loss of earnings was demanded. See Royal Indem. Co. v. Warren, 102 Ga. App. 501 ( 116 S.E.2d 757); Clay v. Aetna Cas. c. Co., 102 Ga. App. 498 ( 116 S.E.2d 686), and citations. In the latter cited case (p. 500) it was held (another case where after an agreement to pay compensation for an incapacity to labor was approved by the Board and no final settlement receipt signed when the claimant returned to work), "If no final settlement receipt, agreement that no further disability existed as of such date, was executed by the claimant and approved by the board, then the hearing, instead of being one on a change in condition, must be construed to have been one authorized by Code § 114-706 where the burden is on the employer to show a change in the claimant's condition. See General Accident Fire c. Assurance Corp. v. Teal, 100 Ga. App. 314 ( 111 S.E.2d 113); National Surety Corp. v. Nelson, 99 Ga. App. 95 ( 107 S.E.2d 718); and Brazier v. U.S. Fidelity c. Co., 99 Ga. App. 588, 591 ( 109 S.E.2d 309)."
The award denying compensation because the claimant had not carried the burden of proof was based on the erroneous theory of law that such burden was on the claimant and the evidence did not authorize a finding that the claimant was no longer suffering any infirmity that resulted in an economic loss. Accordingly, the judgment of the Superior Court affirming the award of the State Board of Workmen's Compensation must be reversed.
Judgment reversed. Frankum and Jordan, JJ., concur.