Opinion
41147.
DECIDED FEBRUARY 11, 1965.
Workmen's compensation. DeKalb Superior Court. Before Judge Guess.
E. Louis Adams, for plaintiff in error.
Smith, Ringel, Martin, Ansley Carr, Charles L. Drew, contra.
The evidence authorized the award of the State Board of Workmen's Compensation and the superior court did not err in affirming such award.
DECIDED FEBRUARY 11, 1965.
In June, 1959, the State Board of Workmen's Compensation approved an agreement under which the claimant, Preston Lawton Hackel, was to receive compensation as a result of having suffered a broken leg on May 18, 1959, while an employee of Wright Contracting Company. On December 5, 1962, a supplemental agreement was approved by the board wherein it was agreed the claimant suffered a 30% loss of use of his leg and that he should receive compensation on such basis from the date of such agreement, November 2, 1962. Thereafter, the claimant requested a hearing on change of condition and upon such hearing the deputy director hearing the case found against the claimant as did the full board and the superior court on subsequent appeals. Error is assigned on the judgment of the superior court affirming the award of the full board.
The deputy director hearing the case found that the prior agreements approved by the board were res judicata as to the claimant's condition as of the time of such agreements. Such holding was in accord with decisions of the Supreme Court and this court that: "By entering into the agreement and allowing it to receive the approval of the board, the parties thereby preclude themselves from thereafter contradicting or challenging the matters thus agreed upon. The only provision of law for further consideration of a case thus disposed of by an approved agreement is a review upon a change in condition, as provided in the Code, § 114-709. The inquiry authorized by law to be made on the review is strictly limited to a change in condition. The condition as it existed at the time of the agreement is settled by that agreement, and cannot be redetermined upon the review." Lumbermen's Mutual Cas. Co. v. Cook, 195 Ga. 397, 399 ( 24 S.E.2d 309). See also Sears, Roebuck Co. v. Wilson, 215 Ga. 746, 752 ( 113 S.E.2d 611), and cases there cited.
The evidence discloses that prior to the time the second agreement was entered into and approved by the board the claimant underwent additional surgery requiring the removal of a part of the pelvic bone for use as a bone graft to aid the repair of the broken leg and under decisions exemplified by London Guarantee c. Co. v. Ritchey, 53 Ga. App. 628 (1) ( 186 S.E. 863), and National Surety Corp. v. Martin, 86 Ga. App. 77 ( 71 S.E.2d 666), could have, at that time, authorized an award under Code Ann. § 114-404 (incapacity to labor), rather than under Code Ann. § 114-406 (loss of a specific member), yet where the second agreement was entered into later and there was no evidence of any incapacity because of such surgery of the pelvic bone and no evidence of any change in the condition of the claimant's leg, except possibly that its condition had improved, the award adverse to the claimant must be affirmed. Accordingly, the superior court did not err in affirming the award of the State Board of Workmen's Compensation.
Judgment affirmed. Eberhardt and Pannell, JJ., concur.