Opinion
38884.
DECIDED JULY 7, 1961. REHEARING DENIED JULY 28, 1961.
Workmen's compensation. Fulton Superior Court. Before Judge Alverson.
Smith, Field, Ringel, Martin Carr, Charles L. Drew, for plaintiffs in error.
J. Sidney Lanier, contra.
Where there is competent evidence to show the continuance of inability to work flowing from the injury, and that the employee did not return to work, an employee may be awarded compensation, even though a compensation settlement receipt has been filed with the State Board of Workmen's Compensation.
DECIDED JULY 7, 1961 — REHEARING DENIED JULY 28, 1961.
The claimant herein requested a hearing before the State Board of Workmen's Compensation. The application for hearing stated the injury occurred on March 24, 1960; however, the Standard Form for Agreement as to Compensation entered into between the claimant, the employer, and the insurer stated the date of the injury to be April 28, 1960, and recited that the disability began May 3, 1960. This agreement to pay compensation was approved by the State Board of Workmen's Compensation on June 20, 1960.
The notice of hearing stated that it was called "to determine liability, disability, compensation and medical." At the hearing the deputy director pointed out that there were two files on the employee, one showing an injury on March 24, 1960, but indicating no loss of time; the other file was stated by the attorney for the defendant to involve an injury "on April 8, 1960." However, the claimant identified the second accident as having occurred on April 28, and this is the date found by the director to be the date of the second accident. Exhibit 8 in the record was a final settlement receipt signed by the claimant, acknowledging the receipt of $84 "in final settlement and satisfaction of all claims for compensation due under compensation agreement or award . . ." and reciting that the claimant returned to work on June 1, 1960, at the same wage as before.
Claimant testified that he was injured the first time by the fall of an elevator on March 24, 1960, by some roofing pushing him against the elevator, but that he did not go to the doctor until "the 28th"; that the second injury occurred when he was unloading some pipe. The date of this injury is variously identified in this record as May 28, April 8, and April 28, but was found by the director to be April 28. The claimant also testified that he had not been able to work since the injury.
On cross-examination the claimant testified that he was unable to work, and testified to pains in the lower part of his back and in his left leg, and "if I have to walk I get awful nervous and everything." At the hearing it was agreed that the record of the two accidents would be consolidated so as to make one entire case from these two separate injuries.
The medical witness testified that he found no reason why the claimant should not be able to return to work.
The above is a summary of all the evidence relating to the condition of the claimant at the time of the injury and at the time of the hearing.
The deputy director found that the claimant sustained one accident on March 24, when the elevator fell, but lost no compensable time from that injury, but found as a fact that on April 28, 1960, the claimant injured his back while unloading pipe. It was further found that the parties entered into the agreement to pay compensation, which was paid for 3 1/5 weeks, and that a final compensation settlement receipt was received by the board which stated the claimant returned to work on June 1, 1960. The director further found that the claimant at the time of the hearing was unable to work, and that the question as to whether the present injury was the result of the March or April accident was res judicata, since the agreements to pay compensation approved by the board stipulated the claimant sustained a back injury on April 28, 1960. It was further found that the claimant had been totally disabled since April 28, 1960, and that he had not returned to work. An award was made granting compensation for 400 weeks at the statutory rate or until such time as there should be a change in condition, plus medical expenses. There was no finding of a change of condition on the part of the claimant from the time of signing of the final settlement receipt.
The employer and insurer applied to the entire State Board of Workmen's Compensation for review of the award, which the full board affirmed. Upon appeal to the superior court, the award was again affirmed, to which judgment the defendant and insurer excepted, on the grounds that it was erroneous and contrary to law and to the principles of justice.
While Code § 114-106 sets forth the premise that settlements are encouraged under the Workmen's Compensation Act, it goes on to provide that a copy of a settlement agreement shall be filed by the employer with the State Board of Workmen's Compensation, and "no such settlement shall be binding until approved by the Board." In the case of Wiley v. Bituminous Cas. Co., 76 Ga. App. 862, 863 (3) ( 47 S.E.2d 652), this court stated that a settlement agreement, not otherwise identified, filed with and approved by the State Board of Workmen's Compensation was res judicata under this section, and is as binding on the parties as if the claim had been tried and a final award entered. But the Wiley case also announced (at page 870) that such a settlement may be reversed under Code § 114-709 by the board upon its own motion or the application of any party at interest on the grounds of a change in condition. While it may be considered as evidence that the employee returned to work on the day recited, it does not preclude him from showing in his testimony, as he did here, that he had not been able to work since the initial date of the injury. The finding of the director that the employee had been disabled since the date of the injury was supported by competent evidence.
The board here has found that the employee has been totally disabled from the time of the injury; that he has not returned to work; and that he is still unable to work. This conflicts with the recitation on the Final Settlement Receipt form that the employee returned to work on a particular date stated. This conflict in the evidence has been settled by the board as the trior of the facts, and their findings must prevail as they are supported by competent evidence.
Under these circumstances there is no necessity for the employee to show a change in his condition since the finding sufficiently supported by evidence is that the employee had the worst possible condition of disability continuously since his accident — namely, a complete inability to work. From this condition there was not, and there need not be found, any change in condition in order to entitle the employee to the continuance of his compensation during disability.
This finding by the board has the effect of rejecting the Final Settlement Receipt filed with the board. Where, as here, the evidence authorized a finding of continuous total disability to work from the time of the injury, Code § 114-709 does not apply and no change of condition need be shown. Indeed under the facts as found here no change of condition could have been shown by the employee.
The opinion here makes it unnecessary to consider the other issues raised by the defendant.
Judgment affirmed. Felton, C. J., and Hall, J., concur.