Travelers Insurance v. Hammond , 90 Ga. App. 595 ( 1954 )

Nichols, J.

1. Findings of fact made by the Board of Workmen’s Compensation are, in the absence of fraud, conclusive on the courts where there is any evidence to support them. Liberty Mutual Ins. Co. v. Haygood, 81 Ga. App. 726 (59 S. E. 2d 731); Shealy v. Benton, 82 Ga. App. 514 (61 S. E. 2d 582); American Mutual Liability Ins. Co. v. Duncan, 83 Ga. App. 863 (65 S. E. 2d 59); Code § 114-710.

2. An agreement fixing compensation between the employer and employee, approved by the Board of Workmen’s Compensation, and not appealed from, is res judicata as to the matters therein determined, and the parties are precluded from thereafter contradicting or challenging the matters thus agreed upon. Lumbermen’s Mutual Cas. Co. v. Cook, 195 Ga. 397, 399 (24 S. E. 2d 309); Hartford Accident &c. Co. v. Carroll, 75 Ga. App. 437, 444 (43 S. E. 2d 722).

3. A change of condition, within the rule that after entering an award the Board of Workmen’s Compensation may increase or decrease the compensation allowed thereunder due to a change of condition, means a change of the physical condition of the claimant subsequent to the first award. It is true that mere proof by the claimant that he was, prior to the original award,, injured in a greater degree than that found by the board, or stipulated by the parties in a settlement agreement approved by the board, and that his original injury has continued in the same degree and to the same extent as it was at the time of the original agreement, does not justify an increased award based on change of condition, no change having occurred subsequently to the agreement, or award. Moore v. American Liability Ins. Co., 67 Ga. App. 259 (19 S. E. 2d 763); Fralish v. Royal Indemnity Co., 53 Ga. App. 557 (186 S. E. 567); American Mutual Liability Ins. Co. v. Hampton, 33 Ga. App. 476 (127 S. E. 155).

4. Where, however, as here, an original settlement agreement based upon a 60% disability is agreed upon between the parties and approved by the Board of Workmen’s Compensation, which agreement, by its express 'terms, is disclosed by the last line thereof to be subject to a change in condition, and thereafter, on a hearing based upon a change of condition, there is some evidence, although slight, that the claimant’s physical condition has become worse since the settlement agreement (the evidence being virtually undisputed that the claimant is, as of the latter hearing, totally and permanently disabled); an award finding the claimant totally and permanently disabled under evidence strongly supporting that finding plus some evidence that his condition has worsened since the original award, is binding upon the courts in the absence of fraud, and the employer and its insurance carrier are precluded from denying that, at the time of the first hearing, the claimant suffered a disability greater than 60%.

The judge of the superior court did not err in affirming the award based on change of condition.

Judgment affirmed.