New Amsterdam Casualty Co.
v.
McFarley

Court of Appeals of GeorgiaJul 5, 1940
63 Ga. App. 122 (Ga. Ct. App. 1940)
63 Ga. App. 12210 S.E.2d 249

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28202.

DECIDED JULY 5, 1940. REHEARING DENIED JULY 30, 1940.

Appeal; from Baldwin superior court — Judge Jackson. November 17, 1939. (Application to Supreme Court for certiorari.)

Powell, Goldstein, Frazer Murphy, for plaintiff in error.

C. B. McCullar, contra.


An award by the Industrial Board finding as a matter of fact that the claimant received an accidental injury arising out of and in the course of his employment, and denying compensation because the claimant was not then suffering any disability or incapacity, and had not as a result of the injury suffered any disability, and had not been incapacitated from work a sufficient length of time to entitle him to compensation under the compensation act, may be reviewed under section 45 of the compensation act (Code, § 114-709), upon a change in condition, where as a result of the original injury the employee subsequently becomes disabled from an impairment of his vision.

DECIDED JULY 5, 1940. REHEARING DENIED JULY 30, 1940.


On August 9, 1937, LeRoy McFarley filed with the Industrial Board a claim for compensation against M. J. Carroll and the New Amsterdam Casualty Company, insurance carrier, in which he stated that on November 26, 1936, while in the employment of M. J. Carroll, he was injured by an accident sustained during the course of his employment. At the hearing before the director the following appeared from the evidence: The claimant was earning, at the time of the accident, a weekly wage of ten to twelve dollars. He received an irritation to his eyes, while unloading loose cement from a freight-car for Carroll, by the loose cement dust "puffing up" into his face. He was immediately sent to Dr. O. C. Woods, who treated him for an irritation or inflammation of the eyes. He had been unable to do any work since the injury, as his eyes pained him so much. The doctor to whom he was sent procured a prescription druggist to wash out his eyes. He went back to work, but his eyes began worrying him "so much" that "he thought it best to knock off, and he had not worked any place since that time." He had been examined and treated by Dr. Longino, who was an eye specialist; and since he had been unable to work his wife was supporting him. Dr. Woods examined him on November 26, 1936, and found his eyes badly irritated; they were inflamed and giving him some pain; the last time he saw this claimant was November 30. Dr. Woods testified, that the claimant was about able to go back to work, but he quit coming to the office; that several weeks later he examined the claimant and thought his vision was all right, and he was in perfect health; and that he tested his vision on a vision chart and it showed about normal. Dr. L. P. Longino made an examination of the claimant, and "in his belief there was nothing wrong with his vision," and he "could find nothing wrong."

The director before whom the first hearing was had on October 11, 1937, found as follows: "It is the finding of this director that the claimant, LeRoy McFarley, sustained an accident on the 26th of November, 1936, by getting some cement dust in his eyes, which irritated the eyes for two or three days. It is the further finding by this director that the accident arose out of and in the course of the employment, and that his average weekly wage was $12 per week. It is the further finding of fact that the claimant was only disabled for some four or five days as the result of the accident, and the claimant returned to work, the loss of time not being a sufficient length of time to entitle the claimant to compensation. We find from the medical evidence of the date of the hearing, by the two doctors testifying, that the claimant is not suffering any disability or loss of vision, and from their examination they found nothing wrong with the claimant's eyes. Therefore the claim for compensation is denied, and the case is dismissed." There was no appeal from this award.

On March 25, 1939, the claimant's counsel applied to the Industrial Board for a hearing, on the ground of a change in his condition. The matter was set for a hearing by the board, and was heard before Hon. Arlie D. Tucker, director, on April 28, 1939. Counsel for the employer and the insurance carrier moved to dismiss the application, on the grounds, "that the case . . is res judicata; and . . that, the case having been decided and no appeal having been made within the time prescribed by law, . . this board can not entertain the application for a hearing on the change in condition." Director Tucker reserved his decision on the motion, stating: "If it is found that the motion is good, an award will be rendered sustaining the motion; if not, this director will notify all parties at interest, and set the case down for the purpose of taking testimony at a later date." This was agreed to by the parties. On May 4, 1939, the director made this ruling and award: "After mature consideration of the motion, this director is of the opinion that this case is controlled by the decision in the case of AEtna Life Insurance Co. v. Davis, 172 Ga. 258 [157 S.E. 449], in which the court held: `The Industrial Commission has not the power and authority, under section 45 or other provisions of that act, after a full hearing and rendition of an award denying compensation, to which no appeal is entered, to entertain another application by the employee, filed after the time provided in the act for entering an appeal, for compensation for the same injury, based upon an alleged change in condition of such employee.'. . The case under consideration is similar on its facts to the Davis case, supra. In the instant case an award was rendered denying compensation, on the ground that the injury did not result in any disability, but a finding was made that the injury arose out of and in the course of the employment, as in the Davis case. This director finds as a matter of fact and rules as a matter of law that the award of October 11, 1937, from which there was no appeal became final and conclusive and binding upon the parties; and that the Industrial Board is now without the power, authority or jurisdiction to entertain an application for a hearing by the employee, based upon an alleged change in condition. . . The Industrial Board being without jurisdiction in the matter, the defendant's motion is sustained, and the application for a hearing on a changed condition is hereby dismissed."

The employee, without applying to the board for review, filed his appeal to the superior court, in which he complained of the award dismissing his application as erroneous, and he stated: "Claimant shows that the Industrial Board found as a matter of fact that he was disabled and injured as a result of the accident, but was not paid compensation because he was not disabled at the time for as much as one week, the time he was injured being covered by the one week's waiting period. . . Subsequently he filed his claim for compensation on the ground of changed condition, and Director Arlie D. Tucker, on May 4, 1939, dismissed his application for the reason that there had been no award of compensation, and that he could not appeal. . . Claimant shows that the fact of whether or not he originally drew compensation is immaterial. A finding of fact was originally made that he was injured for two or three days, and this was not appealed from by the defendants. He submits that it is therefore incumbent upon the Industrial Board to now hear evidence as to whether or not there has been an actual change in condition, and not to simply dismiss his claim."

On November 17, 1939, Judge Jackson, of the superior court, sustained the appeal of the claimant, as follows: "By carefully reading two and three of the body of the case of Ware v. Swift Co., in 59 Georgia Appeals, pages 838-840 inclusive, also the case of Swift Co. v. Ware, 3rd headnote, 53 Georgia Appeals, page 501, the court is of the opinion that the director of the Industrial board, the Honorable Arlie D. Tucker, erred as a matter of law in holding that the Industrial Board was without power and authority to entertain an application for a hearing by the employee in this case on alleged change in condition, and also erred in dismissing the said application for hearing on motion of movant's counsel in said case. It is therefore ordered and adjudged by the court that said case is hereby remanded to the Industrial Board, in order for them to take testimony on the question of whether there has been a change in claimant's condition." To this judgment the employer and the insurance carrier excepted.


"Upon their own motion before judicial determination or upon the application of any party in interest on the ground of a change in condition, the Industrial Board may, within two years from the date that the board is notified of the final payment of claim, review any award or any settlement made between the parties and filed with the board and, on such review, may make an award ending, diminishing or increasing the compensation previously awarded or agreed upon." Code, § 114-709, as amended by the acts of 1937 (Ga. L. 1937, pp. 230, 233; 528, 534). Under this section, the Industrial Board is vested with the continuing jurisdiction to alter its findings, orders, or awards as to a particular claimant for compensation, and to confer, diminish, terminate, or reinstate the payments of compensation to such claimant on a change in condition, such change in condition being a condition precedent to the power of the board to review any such previous finding or award. See 71 C. J. 1438; Home Accident Insurance Co. v. McNair, 173 Ga. 566 ( 161 S.E. 131). The "change in condition" referred to in this statute means conditions different from those existent when the original award was made. A "change in condition," as here used, means a change in the physical condition of the claimant as the result of and due to the original injury or accident, occurring after the award of the Industrial Board which it is sought to review, alter, or modify. See 71 C. J. 1438. A change in the physical condition of the claimant exists where, at the time of the initial hearing, his eyes were "irritated" from an apparent temporary injury from which the claimant suffered no disability, and where subsequently, as a result of such injury, the claimant's vision becomes apparently impaired, permanently disabling him.

Many decisions hold that after an award finding that the claimant's injuries are only temporary, the Industrial Board has power and authority, upon a change in the condition of the claimant to permanent disability, to award compensation accordingly, where the subsequent permanent disability is the result of the original accident or injury. See 71 C. J. 1441, and cit. Also it has been held that upon a change in condition, as where the incapacity of the claimant has increased after an award for partial or temporary disability, or an award for a specific injury, or where compensation has been previously denied to the claimant, the compensation officials, within the terms of the continuing jurisdiction vested in them by statutory provisions similar to Code § 114-709, are authorized to reopen the case to determine the then degree of disability, and to award compensation, or to increase the compensation previously awarded, accordingly, provided the disability is due to or the result of the original injury and not to another cause. 71 C. J. 1441; Southern Mining Co. v. Wilson, 213 Ky. 245 ( 280 S.W. 961); Young v. Industrial Commission, 81 Colo. 106 ( 253 P. 826). It has been held that although a workman has been denied compensation for an injury because at the time he still has use of the organ in question, should the impairment increase, the compensation officials, under a continuing jurisdiction to amend their decisions, have the power to reconsider their previous award. Boscarina v. Carfagno Dragonnette Inc., 220 N.Y. 323

(115 N.E. 710, Ann. Cas. 1918A, 530). As stated by this court in Ware v. Swift Co., 59 Ga. App. 836, 840 ( 2 S.E.2d 128), "In this decision [referring to a former decision in the case, 53 Ga. App. 500 ( 186 S.E. 452)] the court held that a former award against the claimant, which was not appealed from, brought the case to an end, `except for a change in condition."'

The judgment denying compensation is only an adjudication against the claimant's right to compensation upon grounds existing on which the board could, when rendering the judgment, have granted compensation. It is not conclusive, where there has been "a change in condition," as to the right of the claimant to compensation based upon his changed condition. A judgment of the Industrial Board denying compensation on the ground that while the claimant had sustained an accidental injury arising out of and in the course of his employment he was not suffering from any disability and had not sustained any specific injury, and was incapacitated only four or five days on account thereof, is an adjudication that the employee sustained an injury in the course of his employment. Such judgment is an "award" in the sense in which this word is used in the section of the Code providing for a review of an "award" of the Industrial Board by "any party in interest, on the ground of a change in condition," and may be reviewed by the board at the instance of the employee where there has been a subsequent change in condition of the employee resulting from the original injury. United States Casualty Co. v. Smith, 162 Ga. 130 ( 133 S.E. 851), s. c. 34 Ga. App. 363 ( 129 S.E. 880). So where, at the time of an award denying compensation, the claimant was not suffering from any disability, or specific injury, or impairment, and had been incapacitated as a result of the injury less than "7 calendar days" (Code, § 114-401), but where, as a result of the original injury, the employee subsequently becomes disabled from an impairment in his vision, there is a change in condition within the purview of the Code, § 114-709, and the original award denying him compensation is subject to review as provided therein. See General Accident c. Cor. v. Beatty, 45 Ga. App. 104 ( 163 S.E. 302); Swift Co. v. Ware, and Ware v. Swift Co., supra.

The judgment of the director dismissing the application was based on the decision of the Supreme Court in AEtna Life Ins. Co. v. Davis, supra, where it was held that "The Industrial Commission has not the power and authority, under section 45 or other provisions of that act, after a full hearing and rendition of an award denying compensation, to which no appeal is entered, to entertain another application by the employee, filed after the time provided in the act for entering an appeal, for compensation for the same injury, based upon an alleged change in the condition of such employee." In our opinion that ruling is not controlling in the case now before this court. The Davis case is further differentiated in that in the case at bar, as in Swift Co. v. Ware, supra, the initial adjudication or award was in favor of the claimant in so far as the director found as a matter of fact and adjudicated that the claimant had sustained an accidental injury arising out of and in the course of his employment, but denied compensation solely on the ground that the plaintiff was not then suffering from any disability, and had not been incapacitated a sufficient length of time to entitle him to compensation, while in the Davis case, the initial adjudication was that there was no connecting link between the injury sustained in the accident and the pains complained of by the claimant, on which his change in condition was based. The original award in the case at bar did not adjudicate the questions raised in the present application adversely to the claimant as did the original award in the Davis case, supra. The decision of the Industrial Board upon the initial hearing in the case at bar, in which it was found that the claimant had sustained an accidental injury in the course of his employment, but was not entitled to compensation because such injury had not resulted in disability or incapacitated him from work a sufficient length of time to entitle him to compensation under the act, was not an adjudication that the claimant's eyesight would not thereafter become impaired as a result of such accidental injury, thereby disabling him from work and entitling him to compensation. In such a case there would be a change in the condition of the claimant within the purview of section 45 of the workmen's compensation act. As stated in Home Accident Insurance Co. v. McNair, supra, "It is not the purpose of section 45 of this act [Code § 114-709] to abolish entirely the doctrine of res adjudicate; but it was intended to relieve the parties from this doctrine in the particular instances named therein," one of which is "a change in the condition of the employee." In that case the court approved the ruling of the Court of Appeals in South v. Indemnity Insurance Co., 39 Ga. App. 47 (3) ( 146 S.E. 45): "Upon an application for such review, the essentials leading up to the award are to be taken as res judicata, but the physical condition of the employee remains open to inquiry." In Globe Indemnity Co. v. Lankford, 35 Ga. App. 599, 601 ( 134 S.E. 357), one of the cases cited by this court in the South case, supra, in support of its ruling, it was stated, as to a previous award or settlement between the parties, that "if it sought to adjudicate against a change in condition or to determine that such and such a change would or would not take place, it exceeded its powers, because under section 45 the employee is entitled, under certain conditions, . . to a review of any award or settlement upon a change in condition. If it should appear that since the settlement or award the claimant has undergone a change of condition, due to his injury," and his condition is such as to now entitle him to compensation, the former settlement or award "would not be conclusive."

In Globe Indemnity Co. v. Lankford, supra, this court, speaking through Judge Bell, said: "The commission's findings, when supported by any evidence are conclusive of all questions of fact with which it had authority to deal, but it can not refuse to make a finding as to a change of condition merely because of a prior approved settlement. An appeal for review upon the ground of such change presents a quasi-new case although it is not a new proceeding, and it is the duty of the commission to examine into it, if the matter sought to be reviewed has not been judicially determined, or become res adjudicate, and if the commission still has jurisdiction of the subject-matter. U.S. Casualty Co. v. Smith, supra. It was said in that case that section 45 `expressly provides for compensation in a case where there has been a change in condition of the employee; and this necessarily extends jurisdiction of the commission to review the settlement agreement or its original award.' We are not to be understood as holding that the commission must give a hearing on the merits of every such application for review. It might, perhaps, be obliged to do so only when a preliminary inquiry discloses that the application is probably meritorious; and if the application is heard, it will be within the exclusive province of the commission to determine from the evidence whether the change of condition has actually occurred as represented. If it has not occurred, the application will, of course, be denied; if it has occurred, it will be the duty of the commission to modify the previous settlement or award, subject to the provisions of section 45. This court in U.S. Casualty Co. v. Smith, 34 Ga. App. 363 ( 129 S.E. 880), held that the commission has the same power to review a settlement as it has to review an award, and that the right of a party at interest to make application for review is as clear in one case as in the other." It follows that the Industrial Board had jurisdiction to entertain and consider on its merits the claim of McFarley, which was based on a change in condition, and that the superior court did not err in reversing and setting aside the judgment of the director dismissing the application of the claimant.

Judgment affirmed. Sutton and Felton, JJ., concur.