St. Paul Fire & Marine Insurance v. Seay ( 1971 )

Deen, Judge,

dissenting. I disagree with Division 3 of the opinion, which reverses the case so far as an award of compensation for permanent partial disability under Code Ann. § 114-405 is concerned.

1. The award of the hearing director found temporary total disability and entered an award under Code Ann. § 114-404 until a given date; then found a change of condition from total to partial disability and continued the award under § 114-405 instead of § 114-404 "not to . . . continue for a period of more than 350 weeks from the date of the accident.” Since § 114-405 allows a maximum of 350 weeks while § 114-404 gives a maximum of 400 weeks it is obvious that Code Ann. § 114-405 has been complied with, especially that part which states: "In the event partial incapacity shall follow a period of total incapacity, the number of weeks to which the employee shall be entitled to receive compensation under this section shall be reduced by the number of weeks for which payments for total incapacity have been made to the employee.” A period of "350 weeks from the date of the accident” does take into account the weeks during which the employee received temporary total, and the statement in Headnote 3 of the opinion that "No provision is made reducing the number of weeks of compensation for partial incapacity by the number of weeks for which payment is made for total incapacity” is not accurate, since under the present award the claimant cannot overrun 350 weeks from the date of accident, which is the maximum for partial disability.

2. I also disagree with the statement in Headnote 3 that "There has been no finding or determination made as to the weekly wages which the claimant is able to earn upon which an intelligent calculation can be made of the compensation to be paid.” The evidence in the case, the award of the hearing director, and the award of the full board amending it, all clearly show that the claimant is not working hut that she does have some capacity to work. This has been one of the troubled areas in compensation claims from the beginning. Early cases required hearings to determine "maximum improvement,” and were full of allusions to percentage of physical impairment, but as courts began to understand the nature of the problem better both these concepts gradually faded out of the picture. As early as Austin Bros. Bridge Co. v. Whitmire, 31 Ga. App. 560 (121 SE 345), it was established both that "capacity” meant earning capacity, not physical impairment, and that "total incapacity” existed "while he remains unable, as a result of his injury, either to resume his former occupation or to procure remunerative employment at a different occupation suitable to his impaired capacity.” We applied this concept in many cases, among them Employers Liability Assur. Corp. v. Hollifield, 93 Ga. App. 51 (90 SE2d 681), where we held that a 30 percent disability to the back resulted in a 100 percent loss of capacity to labor, and directed payment under Code Ann. § 114-404. Soon thereafter, however, in Sears, Roebuck & Co. v. Wilson, 215 Ga. 746 (113 SE2d 611), the Supreme Court reversed under somewhat similar facts where it found from the evidence that the claimant had some earning capacity but not in the job in which she had been injured, reversed an award under §114-404 and pointed out that it could make no finding as to whether a new award should be entered under § 114-405 because that issue had not been passed on. It was, however, the obvious way out, and has been used regularly by the board and affirmed by this court, in cases where (a) the evidence authorizes a finding that a total incapacity has ceased and (b) there has been a change of condition for the better, but the claimant is not actually back to work, either because he can find no work in his impaired condition or for other reasons. Smith v. Liberty Mut. Ins. Co., 117 Ga. App. 308 (160 SE2d 535). In such a case, which was the situation in Wilson and is the situation here, the board is in fact finding a change of condition for the better and is under a duty to come up with a monetary award. This award, under Code Ann. § 114-405, is "60% of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter.” Where, as here, the board finds earning capacity but the claimant is not actually working, the second figure is zero and the wages are calculable, based on the lesser maximum amounts and shorter maximum time limitations contained in Code Ann. § 114-405.

As stated in Code Ann. § 114-709, change of condition "insofar as it relates to sections 114-404 and 114-405 shall mean solely an economic change in condition occasioned by the employee’s return or ability to return to work for the same or any other employer; or inability to work or continue to work for the same or any other employer, which inability is proximately caused by the accidental injury.” There is a finding supported by the evidence to the effect that the employee can do unspecified "light work.” It is extremely unlikely that either side could produce further evidence on remand as to the identity or value of such work, however, and as a matter of fact the claimant’s economic condition right now is that, although she has some capacity to work, her wages are zero. This, in my opinion, authorizes an award under § 114-405 for partial disability rather than under § 114-404 for total disability, and the amount to be paid is that sum arrived at by the use of the yardstick in § 114-405, 60% of the difference between the wage prior to the accident and the present wage (zero), not exceeding the maximum stated in § 114-405. The board has only two other alternatives — to continue total disability, which it cannot do under the Wilson case, or to refuse any award at all, which it cannot do under Code Ann. § 114-405. I would therefore affirm the award as amended by the full board.

I am authorized to state that Presiding Judge Hall concurs in this dissent.