United States Fidelity & Guaranty Co. v. Gibby ( 1968 )

Pannell, Judge,

dissenting. I agree with the dissent written by Judge Quillian, but I also have additional reasons why I dissent from the judgment of the present case. The agreement between the claimant and the employer which was approved by the board and on which the majority opinion based its ruling as to res judicata was on a printed form supplied by the board. The provision of the agreement which is the subject matter of the litigation was a part of the printed language on the form supplied by the board. This printed portion is contrary to the decisions of the Supreme Court which are referred to in the majority opinion, and therefore, contrary to the provisions of the Workmen’s Compensation Act, that an employer is not entitled to credit for wages paid by another employer. Code § 114-111 provides: “No contract or agreement, written, oral, or implied, nor any rule, regulation or other device, shall in any manner operate to relieve any employer in whole or in part from any obligation created by this Title, except as herein otherwise expressly provided.” This Code section was construed in Globe Indent. Co. v. Lankford, 35 Ga. App. 599 (134 SE 357). The headnote is that case is as follows: “An order of the industrial commission approving a lump-sum settlement between an employee and an employer, reciting that the amount paid or to be paid is equal to the value of the probable future payments and shall be a ‘complete settlement of any disability’ that the employee ‘may now have or in the future may have as a result of the injury sustained,’ is not, even when acted upon by the parties, conclusive as to the employee’s right to additional compensation within the maximum provided in the compensation act, in the event of a subsequent change in condition on account of which the employee seeks a review of the settlement.” It was said in the opinion: “According to our interpretation of the several pertinent provisions of the compensation act (Ga. L. 1920, p. 167), an employee can not be deprived of the compensation to which he is entitled thereunder by any agreement between himself and his employer, notwithstanding its approval by the industrial commission. Section 7 of the act provides, ‘That no contract or agreement, written or implied, no rule, regulation, or other device, shall in any manner operate to relieve any employer in whole or in part of any obligation created by this act, except as herein otherwise expressly provided.’ Section 19 provides that no agreement of settlement shall be binding unless approved by the commission; but the commission itself is without power to foreclose the rights of the employee upon any terms other than those prescribed in the act. (See sections 43, 44, and 45.) ‘The Georgia Industrial Commission is not a court of general jurisdiction, nor even of limited common-law jurisdiction, but it is an industrial commission, made so by express terms of the act of the legislature to administer its provisions as provided therein. As such administrative commission it possesses only such jurisdiction, powers, and authority as are conferred upon it by the legislature, or such as arise therefrom by necessary implication to carry out the full and complete exercise of the powers granted.’ Gravitt v. Ga. Casualty Co., 158 Ga. 613 (123 SE 897).” It is my opinion that the rationale of this case applies in the present case even though the present case is one arising out of an application for judgment rather than an application for hearing on change of condition. Certainly, the language in the printed form supplied by the Board of Workmen’s Compensation, pursuant to an illegal rule of that board, is a device condemned by Code § 114-111. For these additional reasons I can not agree with the majority ruling.