Opinion
36973.
DECIDED JANUARY 21, 1958.
Workmen's compensation. Before Judge Brown. Lamar Superior Court. September 27, 1957.
Anderson, Anderson, Walker Reichert, W. W. Hemingway, for plaintiffs in error.
Cullen M. Ward, Ward, Brooks, Parker Daniel, contra.
Except as otherwise provided in the Workmen's Compensation Act, benefits payable to a claimant for a partial disability are 60 percent of the difference between his average weekly wages prior to the injury and the average weekly wages which he is able to earn thereafter, not to exceed $20 per week.
DECIDED JANUARY 21, 1958.
John W. Goins filed a claim for workmen's compensation benefits, resulting from a head injury, against William Carter Company and its insurance carrier, Liberty Mutual Insurance Company.
On the hearing before a deputy director the evidence disclosed in part that: on July 27, 1955, the claimant received a head injury which arose out of and in the course of his employment; he continued to work for the defendant until September 9, 1955; his average weekly wage prior to injury was $52.71; beginning in October of the same year he worked eight or nine weeks for Charles C. Hartness Paint Contractor for $1 per hour; that he worked between 30 to 40 hours per week for this employer; he worked approximately five weeks for the Tomboy Supermarket in Detroit; his average wage was not over $30 per week while working in Detroit; on May 7, 1956, he returned to Georgia and was employed by Gibson Gulf Service Station in Savannah; he received $45 per week until approximately the middle of August when he received a $5 per week raise; on approximately September 10th he received another $5 per week raise bringing his total wages to $55 per week which he was receiving at the date of the hearing; that he now works approximately 60 hours per week; except for the times stated he was unemployed; there was medical testimony that the claimant suffered no serious brain injury but as a result of the blow to his head he developed a post-traumatic neurosis; the injury has caused the claimant to be depressed and unstable; his disability is 20 to 25 percent; he has reached maximum improvement.
On the conclusion of the hearing the deputy director found as a matter of fact that: the claimant's injury was the cause of inability to obtain and hold employment; he had made every effort to obtain employment. The deputy director entered the following award: "Wherefore, based upon the above finding of fact the William Carter Company, employer, and/or the Liberty Mutual Insurance Company, insurance carrier, are directed to pay to John W. Goins, employee-claimant $7.91 per week, to begin September 5, 1955, and continued for 344 weeks for a 25 percent permanent disability to the body as a whole.
"The employer and insurer are further directed to pay any and all accrued compensation to date.
"They are further directed to provide claimant with reasonable and necessary medical attention and to pay such medical expenses as have already been incurred because of said accident and injury, not to exceed the statutory limit."
The defendant and its insurance carrier appealed the award of the deputy director. The full board affirmed the deputy director's finding and adopted his finding of fact, adding an amendment which stated that the claimant's average weekly wages prior to the injury were $52.71.
This award was appealed to the superior court. The judge of the superior court affirmed the award of the full board, and it is to this ruling exception is taken.
1. There is no question that the claimant is entitled to compensation because there was ample evidence to support the finding that he was disabled as a result of an injury arising out of and in the course of his employment. The question to be decided here is whether the claimant was awarded the proper amount of compensation. Code (Ann.) § 114-405 provides: "Except as otherwise provided in the next section hereafter, where the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid, as hereinafter provided, to the injured employee during such incapacity a weekly compensation equal to 60 percent of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, but not more than $20 a week, and in no case shall the period covered by such compensation be greater than 350 weeks from the date of injury. In case the partial incapacity begins after a period of total incapacity, the latter period shall be deducted from the maximum period herein allowed for partial incapacity. The total compensation payable shall in no case exceed $6,000. (Acts 1922, p. 190; 1923, p. 95; 1949, pp. 1357, 1358; 1955, pp. 210, 211)."
Under the above Code section, the only method of computing the claimant's compensation is 60 percent of the difference between his average weekly wages prior to the injury and the average weekly wages he was able to earn thereafter, but not to exceed $20 per week. Austin Bros. Bridge Co. v. Whitmire, 31 Ga. App. 560 ( 121 S.E. 345); American Mutual Liability Ins. Co. v. Hampton, 33 Ga. App. 476 ( 127 S.E. 155). The only formula for determining this difference is to compare his average weekly wages prior to the injury with wages earned each individual week thereafter until the time of the hearing. This is true because he may have earned varying amounts during the period prior to the hearing. If there are periods of unemployment, through no fault of the claimant, due to the injury then he would be entitled to temporary total disability for this period. Lumberman's Mutual Cas. Co. v. Cook, 69 Ga. App. 131 (2) ( 25 S.E.2d 67).
In the present case the claimant had several periods of unemployment which the director held were the result of the injury and due to no fault of the claimant. There was evidence to support this finding, and the claimant should be awarded compensation for temporary total disability during these periods. During the period between the injury and the time of the hearing the claimant obtained several different jobs at varying wages which were less than his average weekly wages prior to the injury, and the claimant should be compensated in the amount of 60 percent of the difference between these wages.
From approximately September 10, 1956, to the date of the hearing, the claimant's weekly wages were raised to $55, which was $2.29 higher than his average weekly wages prior to the injury. In American Mutual Liability Ins. Co. v. Hampton, 33 Ga. App. 476 (1), supra, it was held: "There is no recognition of the elements of pain and suffering, or of increased discomfort and difficulty in performing the labors for which wages are paid after the injury; and as long as the average of these remain the same or more than those previously received, the law allows no compensation through the machinery of the industrial commission."
Under the above authority, the claimant will not be entitled to compensation for the period in which he earned more than his average weekly wages prior to the injury.
The evidence being incomplete as to the exact dates of the claimant's employment and wages from the date of the injury to the time of the hearing, in complying with this decision it will be necessary that the board hear additional evidence as to these facts.
The judgment of the superior court is reversed with direction that the case be remanded to the Workmen's Compensation Board for the purpose of taking additional evidence to determine the amount of compensation due the claimant, in accordance with the ruling in this opinion.
Judgment reversed with directions. Felton, C. J., and Nichols, J., concur.