United States Fidelity & Guaranty Co. v. Garner , 76 Ga. App. 87 ( 1947 )

Where an employee receives several injuries in one accident and compensation is granted as to one but denied as to the others, such denial of compensation for the latter injuries does not preclude a review with regard to those injuries upon an application for a review based on a change in condition, for the reason that the award granting compensation as to the one injury serves to keep the case open and pending during the statutory period of two years with regard to a change in the claimant's physical condition.

DECIDED NOVEMBER 1, 1947. William H. Garner, while in the employ of Orkin Exterminating Company, suffered an accident arising out of and in the course of his employment on February 20, 1945. A hearing was held before a single director of the State Board of Workmen's Compensation on October 10, 1945, in which compensation was specifically awarded for the loss of vision of the claimant's left eye, and compensation was denied for other injuries in these words: "Therefore, the director is constrained to hold that the yard stick by which disability is measured is ability or inability of a claimant to work, and in the within claim the claimant has proven that he is not suffering any industrial handicap by the established fact that he has been able and did pursue his regular duties for a considerable length of time after the injury and did not leave the employment due to any disability. It is, therefore, the opinion of the Director that the claimant is not suffering any disability in the nature of injury to the lumbar region of the back or any other nature that will entitle him to recover compensation as defined in Section 114-405 of the statute." An appeal was made by the defendant in error to the Superior Court of Richmond County, but this appeal was voluntarily dismissed and a final-settlement receipt was taken from the defendant in error. Subsequently, the claimant filed a request for a hearing on the ground of a change in condition and a single director on January 9, 1947, made the following award: "Wherefore, based upon the record in the case and strictly upon the award of Director Harry E. Monroe dated October 10, 1945, in which he ruled that the claimant only suffered a compensable injury to his eye and that the claimant was not suffering any disability in the nature of injury to the lumbar region of the back or any other nature that would have entitled him to recover compensation as defined in Section 114-405 of the statute and the further fact that said appeal to the Superior Court was withdrawn by claimant and the award of Director Harry E. Monroe was paid in full, the question of the lumbar region injury is now res adjudicata and the claimant would not be entitled under the Act to establish a disability which the court has already ruled did not exist at the time of Director Monroe's award dated October 10, 1945. Due to the fact that the claimant, through counsel on December 17, 1946, withdrew his claim for compensation on the ground of a change in condition to the eye, it is unnecessary to make a ruling regarding that issue." The claimant appealed to the Superior Court of Richmond County and that court reversed the holding of the State Board of Workmen's Compensation, and the defendants excepted. The only question in this case is whether the finding by the board on the first hearing that there was no injury to the leg and back of the employee which was compensable is res judicata and precludes a re-examination of the same injuries on a petition for compensation based on a change in condition. It will be noted that compensation was granted for the loss of vision of the claimant's left eye and compensation for injuries to his leg and back was denied, not for the reason that the employee did not suffer such injuries, but because he was earning the same wages after the injury as before. As we understand the ruling of the Supreme Court in New Amsterdam Casualty Co. v. McFarley, 191 Ga. 334 (12 S.E.2d 355), where there is an award denying compensation on an initial hearing of a claim there can be no review of the award because of a change in condition, no matter what the reason for the denial of compensation was, and where there is an award granting compensation for an injury there may be a review on an application based on a change in condition. The statute makes no exception but provides broadly that "any award or any settlement made between the parties and filed with the board" may be reviewed. The original award in this case was based on a claim for injuries received by one person in one accident, and when an award for the injured eye was made the law stepped in and kept the case alive as a pending case for two years pending a possible change in condition, whether it was a change in the eye or other part of the body for which compensation had been denied. Since the award of compensation keeps the case open, no refusal to award compensation for an injury to some other part of the body is res judicata. The distinction between the finality of awards granting and denying compensation under the law as it is written is that the law keeps the case pending where compensation is awarded and makes a judgment denying compensation in the first instance a final judgment ending the entire case for all purposes, in which case the only remedy is an appeal from the award within the time prescribed by statute. Code, § 114-710. The fact that the first appeal was not prosecuted is immaterial. Even if the appeal had been prosecuted and denied, the case would still be pending insofar as a change in the claimant's physical condition is concerned.

The court did not err in reversing the finding of the board and in remanding the case.

Judgment affirmed. Sutton, C. J., and Parker, J., concur.