Opinion
33228.
DECIDED OCTOBER 6, 1950. REHEARING DENIED DECEMBER 15, 1950.
Appeal; from Jasper Superior Court — Judge George S. Carpenter. June 17, 1950.
T. Elton Drake, John M. Williams, for plaintiffs in error.
Roscoe Pickett Jr., contra.
1. An agreement to pay compensation approved by the Board of Workmen's Compensation is final as to all matters contained therein, and, in the absence of fraud, accident or mistake, may be reviewed only by showing a change in condition subsequent to the date of the approval thereof.
2. The evidence here authorized the Board of Workmen's Compensation to find that there had been a change in condition in the claimant's leg subsequent to the approval of the agreement as to payment of compensation.
3. Legal precision and nicety are not to be insisted upon in the findings of fact of the Board of Workmen's Compensation, and, after the award, that construction of the findings which would render the judgment valid should be adopted in preference to a construction which would render such judgment invalid, where such construction is reasonable and can fairly be applied.
DECIDED OCTOBER 6, 1950. REHEARING DENIED DECEMBER 15, 1950.
The defendant in error, Isom Mitchell Jr., herein referred to as the claimant, was employed as truck driver by the employer, A. G. Wimpy, who, with his insurance carrier, Maryland Casualty Corporation, are the plaintiffs in error here. The claimant had, on August 27, 1948, received severe burns while in the course of his employment, resulting in injury to his right knee and leg. The parties entered into an agreement approved by the board, August 8, 1949, awarding the claimant compensation for a 33 1/3% loss of use of his right leg, which payment was made in a lump sum. On February 2, 1950, a hearing was held, pursuant to request, on the ground of change of condition. Medical testimony for the insurance company was that the claimant had been rated in August, 1949, as having lost 33 1/3% of the use of the right leg, that permanent improvement had been reached, and that he found no difference in the elasticity and leg movements; that the skin had not healed in August, but his examination in January, 1950, disclosed that the skin had healed with inelastic scar tissue, later granulating and running again because of an area of secondary infection. The claimant testified that since he signed the settlement agreement the leg had given him more trouble, that he has been unable to work since August, 1949, that he is unable to "get about" as he did in August, that blisters, scabs and sores have broken out on it since that time and that "the older it gets the more loss of use I get from it." The claimant's physician testified that the stage of maximum improvement had not been reached, that it was impossible for the claimant to perform manual labor and that as of the time of his examination he rated the claimant as temporarily totally disabled.
The deputy director in charge of the hearing set out in his finding of facts the evidence substantially as above, and said, "This hearing was based on a change of condition." He further stated: "In an effort to reconcile the difference between the two eminent doctors and from the observation of the claimant and his testimony, it is my opinion that the claimant has suffered a 50% permanent loss of use of his right leg as a result of the injury complained of," awarding additional compensation on this basis. This decision was appealed to the judge of the Superior Court of Jasper County. Exception is here taken to the judgment of that court affirming the award.
1. Where the parties in a workmen's compensation case by agreement settle the question of the claimant's disability, and such agreement is approved by the Board of Workmen's Compensation, it becomes res adjudicata as to percentage of disability at the time of the award, and a subsequent hearing on change of condition must show an increase or decrease in the percentage of disability subsequent to the approval of the agreement. See Georgia Marine Salvage Co. v. Merritt, 82 Ga. App. 111 ( 60 S.E.2d 419).
2. The evidence in this case was sufficient to have authorized the deputy director to find as a matter of fact that a change had occurred in the condition of the claimant subsequent to the award, based upon the testimony of the claimant himself that his leg was less usable, the testimony that after the skin had healed it again broke out and became infected, causing increased pain and loss of motion, and testimony that the claimant had returned to work about the time the agreement was signed and, after remaining at work for a short period of time was forced to discontinue it because of his leg. The contention that the award is without evidence to sustain it is without merit.
3. Counsel for the insurance company contend, however, that the board did not actually find a change of condition, as shown by the award, and that for this reason the award of additional compensation is contrary to law. It is true that the award is ambiguously worded, and that the director, after stating that the hearing was based upon a changed condition, set out the testimony of one doctor to the effect that permanent improvement had been reached, that there was a 33 1/3% loss of function and no change of condition, and the testimony of the other doctor that permanent improvement had not been reached and that there was a temporary total disability existent at that time so far as the claimant's leg and ability to work were concerned. After stating these facts, the deputy director continued that in an effort to reconcile the difference between these two eminent doctors, and from observation and testimony of the claimant, he found a 50% permanent loss of use. He did not state as a finding of fact that the increased loss of use had occurred since the approval of the agreement, although he would have been authorized to so find. A similar situation arose in a challenge to the award of the Board of Workmen's Compensation as set out in Southeastern Express Co. v. Edmondson, 30 Ga. App. 697 ( 119 S.E. 39) on the ground that it did not set out a finding of facts but simply a narrative of the testimony of the witnesses, and that it is the duty of the board of weigh the evidence and to declare what it finds to be the truth. The court there pointed out that it should be remembered that legal precision and nicety in the report should not be insisted on, and that the statement complained of there "appears to us to be a statement of his findings, succeeded by a story of the evidence upon which it is based. If the quoted statement may with equal reason be said to be the one or the other, it should be construed, after judgment, to be that which will make the judgment valid." In this case, if the award might be construed to be based upon a change of condition, as contended by the claimant, or not based upon a change of condition, as contended by the insurance company, that construction will be adopted by this court which will validate the judgment. This is the more true because the deputy director noted that the hearing was based upon a change of condition, and it is not to be presumed by inference that he went beyond the issues as correctly set out in his statement of fact.
The judge of the superior court did not err in affirming the award of the Board of Workmen's Compensation.
Judgment affirmed. MacIntyre, P.J., and Gardner, J., concur.