Opinion
37019.
DECIDED JANUARY 21, 1958. REHEARING DENIED FEBRUARY 5, 1958.
Workmen's compensation. Walker Superior Court. Before Judge Davis. November 21, 1957.
Smith, Field, Doremus Ringel, Palmer H. Ansley, Richard D. Carr, F. H. Boney, for plaintiffs in error.
Robert Edward Surles, contra.
1. Code § 114-711 providing for a superior court to render a judgment based upon an award of the State Board of Workmen's Compensation does not provide for notice of, or hearing on, the proceedings in the superior court.
2. In the event a carrier refuses to pay an award after demand and particularly when a claimant is in financial need, such is good cause for the issuance of judgment and execution against the employer, the employer being primarily liable for the payment of the award.
DECIDED JANUARY 21, 1958 — REHEARING DENIED FEBRUARY 5, 1958.
Edward L. Wade, hereinafter called the claimant, filed a claim before the State Board of Workmen's Compensation against Barwick Carpet Mills, Inc., hereinafter called the employer and Fireman's Fund Indemnity Company, hereinafter called the carrier, and when referred to jointly, the employer and the carrier will be designated as the defendants. The suit sought compensation benefits for an alleged aggravation of a pre-existing injury and for a new injury to the claimant's back which the claimant contended occurred while the claimant was in the employ of the employer, the employer being insured by the carrier mentioned hereinabove. The claim was heard by a single director of the State Board of Workmen's Compensation resulting in an award to the claimant. Upon appeal to the full board, the award of the single director was amended to read as follows: "Whereupon, based on the above findings of fact and conclusions of law applicable thereto, E. T. Barwick Carpet Mills, Inc., as employer and/or Fireman's Fund Indemnity Company as insurance carrier, will pay to the employee-claimant, Edward Lee Wade, the sum of $14.98 per week, the same being for a partial loss of earning capacity, beginning as of September 21, 1956, and continuing for a period not to exceed 350 weeks, and/or until there be a change in condition at which time either party may petition the board to have the case heard and determined." Later the full board entered a supplemental award as follows: "The recovery in this case is weekly payments of $14.98 beginning on September 21, 1956, and continuing during temporary partial disability. Compensation has accrued to October 1, 1957, a period of 53.4 weeks, or $799.93 and 30% of this amount is $239.98.
"Wherefore, based on the above E. T. Barwick Carpet Mills, Inc., employer and/or Fireman's Fund Indemnity Company, are authorized and directed to pay to claimant's attorney, Robert Edward Surles, $239.98, and 30% of the indemnity payments from October 1, 1957, in full and final settlement of all attorney's fees hereunder." To this supplemental award of October 1, 1957, the defendants appealed to the Superior Court of Walker County. On October 18, 1957, a hearing was scheduled on the claimant's request based on a change of condition. The defendants also requested a hearing based on a change of condition. On November 6, 1957, while the hearing based on change of condition was pending and while the appeal from the award was pending in the Superior Court of Walker County, the claimant petitioned the Superior Court of Walker County for a judgment for accrued compensation from September 21, 1956, to October 18, 1957, less payments previously made by the defendants, whereupon the superior court entered a judgment against the employer only, for the balance of the accrued compensation. It appears that the defendants knew nothing of the judgment rendered on November 6, 1957, until a copy of the order and judgment was received in the mails. The defendants later filed a motion to set aside and vacate the order of the court dated November 6, 1957, together with a rule nisi thereon. This motion with rule nisi was overruled and denied by the court on November 21, 1957. It is on this judgment and on the granting of the judgment of November 6, 1957, that the case is here for review.
Code § 114-711 sets out the method for appeal from the State Board of Workmen's Compensation to a superior court. That section provides that there can be no legal judgment rendered against the employer if the payments are insured, except upon a showing of good cause. Counsel for the defendants claim that no good cause was shown. Counsel cites Taylor v. Woodall, 183 Ga. 122, 125 ( 187 S.E. 697) wherein the Supreme Court said: "So long as good cause is shown, such as insolvency of the insurance carrier and failure to pay the award, the court is authorized to render judgment against the employer, he being under the terms of the statute primarily liable thereon." In the instant case it was shown that the claimant was in financial need, demand had been made on two occasions for payment and payment refused. This constituted good cause. It will be noted in Taylor v. Woodall, supra, the employer made a motion to set aside the judgment because "he had not been served with any process or notice of the pendency of said application for judgment, nor had he waived process or notice." Headnote 1 of that case reads: "Section 60 of the Georgia Workmen's Compensation Act (Ga. L. 1920, p. 200; Code § 114-711), providing for the rendition of a judgment in the superior court based upon a memorandum of agreement approved by, or award of, the Department of Industrial Relations, does not provide for notice of, or hearing on, the proceedings in the superior court." Moreover, that case was brought to the appellate court for a decision on a constitutional question. It follows that Taylor v. Woodall, supra, does not support the contentions of the defendants. Counsel for the claimant cites Durham Iron Co. v. Durham, 62 Ga. App. 361, 373 ( 7 S.E.2d 804) wherein this court said: "The Workmen's Compensation Act does not provide for notice to the employer of, or for a hearing on, the proceeding in the superior court, and the judgment entered `shall have the same effect, and all proceedings in relation thereto shall thereafter be the same, as though said judgment had been rendered in a suit duly heard and determined by said court.'"
In regard to the employer, counsel for the defendants cite Savannah Lumber Co. v. Burch, 165 Ga. 706 ( 142 S.E. 83). The facts of that case are not in line with the facts in the instant case and are not binding authority for reversal. Code § 114-711 provides in part: "Any party in interest may file in the superior court . . . whereupon said court shall render judgment in accordance therewith and notify the parties." Apparently the notice mentioned in Savannah Lumber Co. v. Burch, supra, was the same notice referred to in that Code section and the Code section refers to the notice after judgment. Also in that case the court held that in case of an award against an employer, where the employer fails to comply with the terms of the award, such award may be enforced by suit and judgment in a superior court. The pending hearing on change of condition had nothing to do with moneys due. See Code § 114-709. The contention that this court should set aside the verdict and decree of the superior court has been ruled adversely to the contentions of the defendants in Conway v. Gower, 208 Ga. 348 ( 66 S.E.2d 740) wherein the Supreme Court stated in clear language that a motion to set aside a judgment must be based on some meritorious reason. Attorney's fees is not a basis for refusal of the carrier to honor the award, since the carrier is not a party to the fee approval and is not interested in the division of the moneys between the attorney and the claimant. It is the custom to show the name of claimant's attorney as a joint payee on a compensation draft, thus protecting the carrier against duplicate payments; particularly is this true where there is any doubt regarding to whom the payments are payable.
The court did not err in the verdict and judgment of November 6, 1957, nor did the court err in denying the motion to set aside and vacate the order of the court dated November 6, 1957, nor did the court err in the ruling regarding the rule nisi.
Judgment affirmed. Townsend and Carlisle, JJ., concur.