Opinion
48877.
SUBMITTED JANUARY 7, 1974.
DECIDED JANUARY 31, 1974.
Workmen's compensation. Fulton Superior Court. Before Judge Tidwell.
Savell, Williams, Cox Angel, John M. Williams, Elmer L. Nash, for appellants.
Charles L. Drew, C. Eugene Gilbert, for appellee.
The evidence was sufficient to support a finding that the appellee was entitled to workmen's compensation benefits for partial disability.
SUBMITTED JANUARY 7, 1974 — DECIDED JANUARY 31, 1974.
The facts as stated in the appellants' brief and accepted by the appellee are in substance: "On January 14, 1972, the appellee, William Prance, the claimant below, sustained an accident and injury which arose out of and in the course of his employment as a fabricator with Tuxedo Glass Mirror Co., Inc. The duties of a glass fabricator include measuring and supervising the installation of glass frames and glass for store fronts. Allstate Insurance Company is the workmen's compensation carrier for Tuxedo.
"This matter came on for a hearing before the Board on September 7, 1972, based on the appellants' application for a determination of a change in condition. At the hearing the appellee dismissed his application for a change in condition, and the case proceeded on the appellants' application. At the time of the hearing, there was an outstanding agreement approved by the Board on April 19, 1972 which established that the appellee had sustained an accident and injury arising out of and in the course of his employment on January 14, 1972 and that compensation was to be paid under the provisions of Code Ann. § 114-404.
"The evidence at the hearing established that the appellee had returned to his job as a glass fabricator with his employer on April 27, 1972 at his regular rate of pay, and worked until July 6, 1972. On that date his coordinator (supervisor), Mr. Buck Mayes, laid him off for unsatisfactory work. The claimant had been given light work consistent with his ability. The claimant testified clearly that he was physically able to do the work.
"The medical evidence in this case showed that Dr. Cohen, the treating physician, testified that when he last saw the claimant on August 14, 1972, `... he was dramatically improved...' and could do work that did not involve heavy lifting, and that he improved slightly between May 18 and August 4, 1972.
"On September 7, 1972, the date of the hearing before the Deputy Director, the Deputy Director issued his interlocutory order authorizing the appellants to suspend compensation payments as of that date.
"On October 12, 1972 the Deputy Director issued his findings of fact and award and found that Mr. Prance had returned to work on or about April 27, 1972 for the same employer and that he was earning as much in wages as he was at the time of the injury. He also found that the claimant was given light work and that he was physically able to do the job. The Deputy Director further found that the claimant was dismissed from his employment because of unsatisfactory performance of his job and not due to any physical inability to perform the duties of his employment.
"The Deputy Director found as a matter of fact that the claimant sustained a change in condition (to no disability) as of the date that he returned to work on or about April 27 and that he was no longer entitled to compensation payments for total disability as of that date. However, he also found that the claimant sustained another change in condition on July 6, 1972 when he was dismissed from his employment.
"Although the Deputy Director found that the claimant was physically able to do the work, that he was given light work consistent with his physical condition and that he was discharged from his job for improper performance of his job rather than any physical inability to do the job and that the doctor testified that Mr. Prance was physically able to do light work, the Deputy Director held that `The claimant would be entitled to compensation for permanent partial disability as provided in Code Ann. § 114-405 as the undisputed evidence shows as a matter of fact that the claimant has not had any remunerative employment since his discharge by Tuxedo Glass and Mirror Company on that date (July 7, 1972) and that he is still under the care of Dr. Cohen and is not scheduled to return for further treatment or evaluation until sometime in November of 1972.'
"Consistent with these findings of facts, the Deputy Director issued his award holding that there had been a change in condition from total disability to no disability as of April 27, 1972, and holding further that there was another change in condition on July 6, 1972 when he was dismissed from his employment. The Deputy Director further ordered that the employer and insurer pay `all reasonable and necessary medical expenses.' These findings of fact and award were adopted by the full Board.
"The employer and insurer appealed the case to the Superior Court of Fulton County, which after argument issued its order on August 21, 1973 reversing in part and affirming in part the award of the full Board. The Superior Court agreed with the appellants that the award was in error in that there was no finding or determination made as to the weekly wage which the employee was able to earn; and, therefore, no basis upon which an intelligent calculation could be made as to the compensation to be paid. The Superior Court also agreed with the appellants' contention that the award was in error insofar as the medical expenses were concerned in that an award of `all reasonable and necessary expenses' is vague and indefinite. However, the Superior Court affirmed that part of the award which held that the appellee underwent a new change in condition in July of 1972 when he was terminated for unsatisfactory job performance. It is from that part of the judgment of the Fulton Superior Court that this appeal is taken."
In addition to the above facts the appellee's brief shows that the award stated that there was medical testimony by the doctor who was treating the claimant that he would never be able to do any heavy lifting and was capable of doing light work.
1. The appellant contends that the award was in error because the appellee was not entitled to partial disability because there was no evidence to support a finding that the appellee had undergone a second change in condition when he was dismissed for poor job performance not related to any physical disability. With this contention we can not agree.
While it is true the appellee returned to work for the appellant at the same wages he received prior to his injury, he was not performing the same duties. When he returned to work he was given a light job which did not require any heavy lifting. He was subsequently discharged for poor job performance. There was a finding of fact that the appellee had not been employed since his discharge by the appellant.
While it is true the appellee stated he was physically able to perform work there was medical testimony which authorized a finding that the appellee was partially disabled. Based upon the facts of this claim the board was authorized to find that the appellee had undergone an economic change in condition and entitled to benefits for partial disability. Jenkins Enterprises, Inc. v. Williams, 122 Ga. App. 840 ( 178 S.E.2d 926).
The appellant argues that Morris v. Liberty Mutual Ins. Co., 122 Ga. App. 436 ( 177 S.E.2d 174), is controlling and compensation should not have been granted. The Morris case can be distinguished from the case sub judice because in the Morris case the claimant returned to work for his employer at exactly the same duties as he had before his injury and there was no medical evidence that the claimant had any disability.
Judgment affirmed. Bell, C. J., and Clark, J., concur.