Miller v. Indemnity Insurance Co. of North America , 55 Ga. App. 644 ( 1937 )

Sutton, J.,

dissenting. Where,, as in the present case, on a hearing before the Department of Industrial Delations, the evidence shows that the claimant is totally disabled, but the department makes an award of only 75 per cent, total disability, such award is binding where not appealed from, and can not be changed by an application for additional compensation on the ground of a change in condition, under section 45 of the workmen’s compensation act, where the evidence on such latter hearing is that the claimant is totally disabled and his condition then is the same as it was when the first hearing was had. If the claimant is not. satisfied with the award as made, his remedy is by appeal therefrom, as provided by the act; and he can not have such award changed or additional compensation awarded, on an application based on a change in condition, where the evidence on the latter hearing shows that there has been no change in his condition from that which existed on the former hearing. A change in condition means a different condition from that existent when the award was made; and a continued incapacity of the same kind and character, and for the same injury, is not a change in condition. See Fralish v. Royal Indemnity Co., 53 Ga. App. 557 (186 S. E. 567), and cit.; Sei v. Guthrie (Mo. App.), 50 S. W. (2d) 664, 666; State ex rel. Sei v. Haid, 332 Mo. 1061 (61 S. W. (2d) 950). In my opinion, the finding of the department that there was a change in the physical condition of the claimant was without evidence to support it, and the judgment of the superior court was correct in reversing that finding, and that judgment of reversal should be affirmed.