Chicago Bridge Iron Company v. Cole , 70 Ga. App. 599 ( 1944 )

1. Where an employee developed a hernia from an accident, and was operated on at the expense of his employer, and awarded compensation, and later applied for additional compensation on the ground of a change in condition, an award finding that he had fully recovered and denying future compensation, unappealed from, was conclusive on him, and the State Board of Workmen's Compensation was without authority, on another application based on a change in condition, to make an award based on a change in condition, when the undisputed evidence showed that at the time of the award denying additional compensation for change in condition the employee was suffering the recurrence of a second-degree hernia temporarily totally incapacitating him.

2. The fact that the employee's condition had changed from a second-degree hernia to a third-degree hernia since the previous denial of compensation would not authorize an award of additional compensation or another surgical operation for the reason that the second-degree hernia resulted in temporary total incapacity; a change in condition which does not increase or decrease incapacity is not a change in condition upon which an award may be based.

DECIDED FEBRUARY 10, 1944. W. W. Cole developed a hernia on November 13, 1941, which arose out of and in the course of his employment. On December 30, 1941, he underwent an operation for the hernia, the expense of which was paid by the employer. An agreement was made and approved by the board that the employee should be paid $12 per week from January 6, 1942, and continue during disability. On or about June 1, 1942, the claimant had a recurrence of the hernia, and filed a petition for additional compensation on the ground of change in condition. On July 28, 1942, a hearing was held, and on August 6, 1942, Director Monroe made an award in which he found that the claimant had no remaining disability resulting from the hernia sustained November 13, 1941, or from the operation. He found, however, in favor of the claimant for an additional five and a half weeks of accrued compensation. The finding as to the claimant's condition was based on a report of Dr. Mims, male on April 6, 1942. The claimant appealed from this award to the board. On August 28th, 1942, the board remanded the case to a director for additional testimony, at which hearing another report of Dr. Mims was received. This report showed that Dr. Mims made another examination on August 12, 1942, and found that the claimant had had a recurrence of the hernia and had a temporary total disability. On November 12, 1942, the board made an award on the claimant's appeal in which the director's award was approved and affirmed in its entirety. There was no appeal from this award, and the additional compensation awarded was paid by the employer in final settlement of the claim. On April 1, 1943, the claimant filed another application for additional compensation based on an alleged change in condition, on which a hearing was had on June 11, 1943. The evidence on this hearing showed without dispute that the hernia recurred on or about June 1, 1942, and that on August 12, 1942, Dr. Mims examined the claimant and found that the hernia had recurred, and that he then had a second-degree hernia resulting in temporary total disability; and that Dr. Mims had examined the claimant three days before the hearing on June 11, 1943, and that he then had a third-degree hernia and still had a temporary total disability. On June 24, 1943, the trial director made an award in which he found that the claimant had undergone a change in condition as of August 12, 1942, and was then suffering a recurrence of a right inguinal hernia attributable to the original injury, and awarded compensation from August 12, 1942, at the rate of $12 per week, plus a surgical operation, etc. The employer appealed from this award to the board, which resulted in an approval of the award. The appeal to the superior court was denied, and the employer excepted. 1. The change in condition referred to in the Code, § 114-709, is one which must have occurred subsequently to the award of November 12, 1942. The evidence before the board at that hearing demanded a finding that the claimant was afflicted with a second-degree hernia and was temporarily totally disabled. The evidence on the last hearing demanded the same finding. Therefore it appears conclusively that the claimant's degree of compensable disability, namely, temporary total, had not changed since the last award, and it follows that the last award of compensation and for another surgical operation was unauthorized. Home Accident Ins. Co. v. McNair, 173 Ga. 566 (161 S.E. 131); Interstate Telephone Co. v. Holt, 45 Ga. App. 85 (163 S.E. 234); Moore v. American Mutual LiabilityInsurance Co., 67 Ga. App. 259 (19 S.E.2d 763); Ingram v.Liberty Mutual Insurance Co., 62 Ga. App. 789 (10 S.E.2d 99); Teems v. American Mutual Liability Insurance Co.,41 Ga. App. 100 (151 S.E. 826); Fralish v. Royal IndemnityCo., 53 Ga. App. 557 (186 S.E. 567); Rourke v. U.S. F. G. Co., 187 Ga. 636 (1 S.E.2d 728). If there is anything inWare v. Swift Co., 59 Ga. App. 836 (2 S.E.2d 128), orWilliams v. United States Casualty Co., 47 Ga. App. 508 (170 S.E. 894), contrary to what is here held these cases must yield to the authorities cited above.

2. The fact that at the time of the last award the claimant had a third-degree hernia would not justify the award. The claimant was temporarily totally disabled on November 12, 1942, and was entitled to all the rights afforded him under the law. He was denied those rights and his remedy was by appeal. If he had obtained an award in his favor for his full rights he would not be entitled to an additional award by reason of a change in condition from a second- to a third-degree hernia, for the reason that such a change would not have increased the percentage of his disability. The effect of the award appealed from is to reverse the previous award, a thing which cannot be done under the guise of an application for additional compensation based on a change of condition. Moore v. Mutual Liability Ins. Co.; Ingram v.Liberty Mutual Ins. Co., supra; American Mutual Liability Ins.Co. v. Hampton, 33 Ga. App. 476 (127 S.E. 155).

The court erred in denying the appeal, and in sustaining the board's award.

Judgment reversed. Sutton, P. J., and Parker, J., concur.