Opinion
30583.
DECIDED NOVEMBER 18, 1944.
Appeal; from Fulton superior court — Judge Paul S. Etheridge. April 27, 1944.
A. A. Baumstark, Noah J. Stone, for plaintiff.
R. J. Reynolds Jr., Carl B. Copeland, for defendant.
The judge of the superior court erred in affirming the award of the State Board of Workmen's Compensation.
DECIDED NOVEMBER 18, 1944.
On August 7, 1943, L. S. Morris filed his claim against Atlantic Company for compensation for personal injuries resulting from an accident arising out of and in the course of his employment with said company. On the hearing of the case, the director made an award denying the claim for "additional compensation," and dismissed the case. His award was affirmed by the board, and subsequently affirmed by a judge of the superior court; and the latter judgment is assigned as error in the bill of exceptions.
In his application to the board for a review of the award, Morris stated: (1) The award is contrary to law and the evidence; (2) it is contrary to the facts found by the director and the law applicable thereto; (3) the award is not sufficiently specific in its findings to constitute the basis of an award, in that the director failed to make any finding as to essential and necessary facts upon which to base an award, such facts having been established by the evidence.
In his findings of fact, the director found that the claimant "was an employee of Atlantic Company on September 20, 1942, and that on said date he met with an accident and injury which arose out of and in the course of his employment." But nowhere in his findings of fact did he find whether the injury created total disability, and, if so, for what period of time; and there is no finding of fact as to when the claimant returned to work. The brief of evidence showed without dispute that the injury occurred on September 20, 1942, and that the disability of the claimant was total to January 15, 1943. The evidence for the claimant is that for the week in which he was injured he was paid and received $30; and there was no finding of fact by the director that this was true or false. The claimant contends that under the law and the evidence the director should have found, and the evidence demanded that he find, that the claimant was totally disabled from September 20, 1942, to January 15, 1943, and that his compensation for the week in which he was injured was $30 for a forty-hour week; that, under the evidence cited in the award, it was necessary to find an award for the claimant in some amount, before the question of credits to the employer could have been considered, because in the absence of an award in favor of the claimant, there can be no credits to his employer; that under the evidence quoted in the award, the director should have found as a fact that from July 23, 1943, the claimant was unemployed because of his said injuries for a period of two weeks and received no salary for that time, although he was entitled to receive $12 for each week; that under the law creating the Industrial Board, the board has no authority to "dismiss" a claim, except for want of jurisdiction or a failure to prosecute the claim, the only award that can legally be rendered is one granting or denying compensation; that the award in this case stated that "the claim for additional compensation is denied and the case is hereby dismissed," whereas the undisputed evidence disclosed that no previous "compensation" had ever been awarded to the claimant; that the present award was insufficiently specific in the finding of facts, and the director's conclusions of law were contrary to law and the evidence.
The award was filed on February 11, 1944. The board rendered an award on March 16, 1944, affirming the award of the hearing director, and, on appeal, a judge of the superior court affirmed the award of the board, and that judgment is assigned as error.
In the award of the board it was stated: "Among the contentions made by claimant's attorneys [was one] to the effect that the award dated February 11, 1944, made no provision for crediting the employer with prior payments of compensation, and as a consequence claimant would be forever precluded from again filing a claim with this board on the grounds of a subsequent change in condition. An examination of the last paragraph on page 4 of the award dated February 11, 1944, will reveal that the employer was given credit for all payments of salary previously made to the employee in lieu of compensation. The payments of salary heretofore made having been approved by the board and having been treated as payments made in lieu of compensation, the board is of the opinion that any subsequent right the employee may have to file claim with the board on the grounds of a change in condition will not be prejudiced." And the judge of the superior court in his order affirming that award stated: "This court in approving said findings holds that the statement of the director, approved by the full board, `the case is hereby dismissed,' does not have the effect of precluding employee from filing claim with the board at any subsequent date upon the grounds of change in condition."
It is well settled that the State Board of Workmen's Compensation has no authority under the law to dismiss a claim, except for the want of jurisdiction or for the failure of the claimant to prosecute his claim; and where it appears from the evidence that the claimant suffered an accidental injury arising out of and in the course of his employment and resulting in his disability for more than seven days, then the claimant "is entitled to compensation in some amount. On the other hand, a negative decision on any one of these facts requires an award denying compensation. The only award that the Industrial Board has the power under the law to make is either to deny or to grant compensation." New Amsterdam Casualty Co. v. McFarley, 191 Ga. 334, 337 ( 12 S.E.2d 355). Therefore, under the undisputed evidence in the instant case, the claimant was "entitled to compensation in some amount," and the dismissal of his claim was contrary to law and the evidence.
In the award of the director and in that of the board the employer was given credit for previous sums of money given to the claimant. We do not think that the director or the board had authority to do this. There was no award giving any compensation to the claimant, and it is obvious that something can not be deducted from nothing. "An award denying compensation is an award granting to the employee precisely nothing, and despite any attempt to end, diminish, or increase it, it will remain the same nothing. . . Since there was no `compensation previously awarded or agreed upon,' manifestly the board could not have ended, decreased, or increased something that had never existed." New Amsterdam Casualty Co. v. McFarley, supra.
In view of the foregoing rulings it is unnecessary to consider the question as to whether the award precluded the claimant from afterwards filing a claim with the board on the grounds of a subsequent change in his condition. The evidence supported the grounds of exceptions to the award of the director as to his failure in his findings of fact to find as facts the certain material facts set forth in said exceptions. The judge of the superior court erred in affirming the award of the board.
Judgment reversed. MacIntyre and Gardner, JJ., concur.