Opinion
35978.
DECIDED JANUARY 27, 1956. REHEARING DENIED FEBRUARY 8, 1956.
Workmen's compensation. Before Judge Shaw. Fulton Superior Court. September 28, 1955.
Burt DeRieux, Marshall, Greene Neely, for plaintiff in error.
J. R. Goldthwaite, Dorsey B. Phillips, contra.
The court committed no error in reversing the award of May 10, 1955, and remanding the case to the State Board of Workmen's Compensation for further consideration.
DECIDED JANUARY 27, 1956 — REHEARING DENIED FEBRUARY 8, 1956.
This case arose under the jurisdiction of the State Board of Workmen's Compensation wherein a single director refused compensation, holding that the facts did not authorize an award to the claimant and for the reason that the case had been decided finally and conclusively by the State Board of Workmen's Compensation and therefore was res adjudicata. The claimant filed a direct bill of exceptions to the Superior Court of Fulton County. The judge of the superior court reversed the single director and remanded the case to the State Board of Workmen's Compensation for hearing. Error is assigned here on the judgment of the judge of the superior court.
James H. Dempsey, the claimant, was injured at his employment with the Chevrolet Division of the General Motors Corporation on July 29, 1953. The injury occurred when a truck on the assembly line of the Chevrolet Plant collided with the car on which the claimant was working, pinning him against an angle beam, resulting in injuries to his back. The employer did not contest the fact that the claimant had an injury arising out of and in the course of his employment. The claimant filed his application with the State Board of Workmen's Compensation, and the case came on for hearing on April 13, 1954. At that time the claimant testified that he had suffered a pain in his back since the time of the injury. The claimant lost only four days pay from his employment because of the injury from the time of the injury until the time of the hearing. These facts are reflected in the award of the hearing director. The hearing of April 13, 1954, was continued only for the purpose of taking medical testimony. On May 24, 1954, the attorney for the claimant asked that the case be reassigned for hearing to determine liability and compensation. On May 26, 1954, the deputy director denied the request to introduce additional evidence as to liability and compensation and held that the record was open only for the introduction of medical testimony, stating that the record was closed on April 13, 1954, except for receiving medical testimony. Subsequently, medical testimony was introduced. Doctor Myers testified on behalf of the claimant that he had examined the claimant on April 16, 1954, and that the claimant was suffering from an injury to a lower spinal disc; that the claimant at that time had an estimated disability of from 40% to 50%; that he recommended that the claimant should wear a surgical brace for several months, after which time an estimate as to permanent disability could be made. Doctor Myers testified that no estimate of permanent disability could be made until after the brace had been worn for several months. Later, the employer introduced the deposition of Doctor Blackmon, the company physician, which testimony was in conflict with that of Doctor Myers. On January 21, 1955, an award was issued based upon the condition of the claimant on the date of the first hearing, i.e., April 13, 1954. In the findings of fact of the deputy director it is held that the claimant "received an injury involving his back on July 20, 1953, which arose out of and in the course of his employment." The deputy director further found that at the time of the April 13, 1954, hearing the claimant had not incurred loss of time from his employment and consequently no temporary total compensation was due because of loss of wages. However, the deputy director further found: "I find further from the medical testimony introduced that some permanent disability will be involved, however, claimant has not reach maximum improvement and one of the doctors stated that fusion operation may be necessary. Claimant had incurred medical bills as a result of his injury and will be forced to incur future medical bills, and he is entitled to receive payment for medical expenses. . ." Based on these findings the deputy director issued the award that the employer should pay the claimant's medical expenses and stated further: "Since the claimant lost no compensable time and maximum improvement has not been reached he would not be entitled to compensation." However, in this award the deputy director did not dismiss the claimant's application.
It is apparent from the award of January 21, 1955, and it is contended by the claimant that the deputy director found in favor of the claimant and awarded claimant all the compensation to which he was entitled on the facts which existed at the time of the hearing on April 13, 1954. The deputy director found in favor of the claimant and specifically reserved jurisdiction in the event a change of condition occurred subsequent to the award. Such is apparent from the statement of the director: "That maximum improvement had not been reached, and that a fusion operation might be necessary, and that the claimant might incur future medical expense." The conclusion demanded by the statements in the award of the deputy director is that the State Board of Workmen's Compensation retained jurisdiction of the case for further discussion in connection with the physical condition of the claimant. The said award was appealed and was affirmed. Thereafter the claimant applied for a hearing based on a change in condition. At that hearing Doctor Myers testified that the claimant had about 50% disability, but that he still could not testify as to the amount of permanent disability; that he had put the claimant under treatment and had put the claimant in a cast for the injuries resulting from the accident on July 20, 1953; that since the witness began treatment of the claimant (after the previous hearing) the claimant could not perform the duties of his job and might never be able to go back to the same job. At this hearing the claimant testified that he had pain in his hip and thigh and that he had been unable to work since April 14, 1954. Upon this evidence a deputy director issued an award on May 10, 1955, and held that the State Board of Workmen's Compensation was without jurisdiction to entertain the application based upon change of condition.
We think it well to set forth the judgment of the judge of the superior court in full. It is evident that the judge of the superior court, Judge Claude D. Shaw, did considerable research in this case and his judgment is very clear and lucidly expressed. The judgment and order of reversal read in full as follows: "This case comes here from an appeal by the claimant from an award denying compensation dated May 10, 1955. In denying compensation the board takes the position that it is without jurisdiction to further consider evidence in relation to a change of condition case.
"The board in rendering its award of May 10, 1955, erroneously interpreted its previous award of January 21, 1955. In that award the board found that claimant had lost no compensable time up to the date of that hearing which was April 13, 1954. This finding is binding on the claimant since he did not take an appeal from same. However, the balance of the award under date of January 21, 1955, is favorable to claimant, the board finding that `claimant received an injury involving his back on July 20, 1953, which arose out of and in the course of his employment.' The deputy director further found, `from the medical testimony introduced that some permanent disability will be involved, however, claimant has not reached maximum improvement, and one of the doctors stated a fusion operation may be necessary. Claimant had incurred medical bills as a result of his injury, and will be forced to incur future medical bills, and he is entitled to receive payment for medical expenses incurred by reason of his injuries . . .'
"Based on these findings it was held that the employer should pay medical expenses and `since claimant lost no compensable time, and maximum improvement has not been reached, he would not be entitled to compensation.'
"The above award is favorable to the claimant with the exception of the finding that he lost no compensable time to the date of the hearing. This finding by the board that claimant incurred no compensatory loss of time up to the date of the hearing on April 13, 1954, is an adjudication of that issue adversely to claimant. All other issues remain open and are now subject to the jurisdiction of the board to be determined according to evidence in a subsequent hearing.
"Section 114-709 of the amended Code authorizes a review where the original award provides some compensation in favor of claimant. For a further discussion of this matter see Travelers Insurance Co. v. Haney, 92 Ga. App. 319, and the cases cited therein.
"In this case the employer under the terms of the award rendered January 21, 1955, was `directed to pay to James H. Dempsey, all necessary and reasonable medical expenses incurred by reason of his accident and injury, not to exceed in the aggregate the sum of $750.00, the maximum provided by the Act.'
"It should also be noted that the board by its own findings of fact came to the conclusion that claimant received an injury which arose out of and in the course of his employment, and that he had sustained `some permanent disability' but since he had not reached maximum improvement as of the date of the hearing such issue was not passed upon at that time.
"There is language quoted with approval from another case in the above stated case of Travelers Insurance Company v. Haney, as follows `the jurisdiction of the commission over a case is lost when there is full compliance with its award, unless there is a provision in the act or in the award conferring continued jurisdiction of the case upon the commission.'
"For all of the above reasons this court is of the opinion that the State Board of Workmen's Compensation erred in holding that it did not have jurisdiction over the appeal filed by claimant alleging a change in his physical condition.
"Order: The above and foregoing case having regularly come on for hearing before me, after argument of counsel, it is considered, ordered and adjudged that the award of the State Board of Workmen's Compensation of May 10, 1955, be, and the same is, hereby reversed. Said case is remanded to the State Board of Workmen's Compensation for further action in compliance with the above stated opinion.
"Ordered this 28th day of September, 1955."
Under this record the award denies compensation on the sole ground that the disability resulting from an injury existing for a period of time less than seven days is subject to being reopened on a change in condition where the hearing director in his award specifically retains jurisdiction of the case pending further permanent disability of the claimant. It is our opinion that the State Board of Workmen's Compensation retained jurisdiction of the case by its award of January 21, 1955. Where, as here, the board found that the claimant suffered an accident arising out of and in the course of his employment, he is entitled to medical expenses incurred and where, as here, the board found that he may suffer further permanent disability and require an operation and incur further medical expenses, but finds that up to the time of the hearing he has not incurred the requisite lost time from employment to entitle him to temporary total compensation, the claimant is not thereby deprived of his right to compensation when the injury causes him to be unable to continue work after the time of the hearing. The facts in the instant case place the case directly under the purview of change in condition. As analogous, see Riegel Textile Corp. v. Vinyard, 88 Ga. App. 753 ( 77 S.E.2d 760).
Counsel for the employer relies on a line of cases set out in New Amsterdam Casualty Co. v. McFarley, 191 Ga. 334 ( 12 S.E.2d 355) and quotes at length from that case. All those cases concerned adjudicating against the employee on the ground that the injury was incurred arising out of and in the course of his employment and terminating the right of any compensation on the part of the employee. Such awards were held to be res adjudicata and in each instance it was held that if the employee was dissatisfied with the ruling thus finally terminating his case, his only remedy was by appeal from that ruling. Such is not the award in the instant case. As we have above observed, the award in the instant case did not finally terminate the employee's right to compensation. In reaching the determination as to whether or not a change of condition has occurred, the court can consider the entire record.
The court did not err in its judgment reversing the award dated May 10, 1955, and remanding the case to the board for further consideration.
Judgment affirmed. Townsend and Carlisle, JJ., concur.