City of Hapeville v. Preston

1. "The lawmakers doubtless realized that in many instances no real benefit would result to the family of a deceased employee from the payment of a more or less large sum of money at one time, since such benefits might soon disappear in improvident investments. These were doubtless the reasons which prompted the General Assembly to require weekly payments as compensation to the family of a deceased employee. . . It does not authorize the parties to agree upon amounts of compensation different from those prescribed by the act, or to agree upon times and methods of payment different from those fixed by law." Tillman v. Moody, 181 Ga. 530, 534 (182 S.E. 906).

2. The Department of Industrial Relations is not a court authorized to render judgments on contracts. It merely determines the amount of compensation and time of payment in accordance with the provisions of the act.

3. When the employer fails to obey and follow a lawful award he does so at his own peril, and on review of the first award because of a change of condition if a second award is made under the Code, § 114-709, "ending, diminishing, or increasing the compensation allowed by a previous award, the employee can not be required to account for or be charged with moneys actually paid under the first award."

4. The director or directors were not required to go into any general accounting relatively to the payments of moneys for compensation not provided for in the awards, and they did not do so.

5. "The facts upon which the superior court was authorized to exercise jurisdiction were those, and only those, contained in the record transmitted to it by the Department of Industrial Relations." And "No order or decree of the department shall be set aside by the court upon any grounds other than one or more of the grounds above stated," and these grounds are, where " (1) The directors acted without or in excess of their powers; (2) The order or decree was procured by fraud; (3) The facts found by the directors do not support the order or decree; (4) There is not sufficient competent evidence in the record to warrant the directors in making the order or decree complained of; or that (5) The order or decree is contrary to law."

6. The directors did not undertake in a review on account of a change of condition to go into any general accounting involving the payment of moneys which were made not in accord with the awards.

7. The superior court, following the workmen's compensation act as provided in the Code, § 114-711, sought to enforce the awards of the directors, and not to change them by going into any intricate system of general accounting of moneys paid not as directed by the awards of the director or directors.

DECIDED MAY 13, 1942. This is a workman's compensation case. The record shows that it had its inception in the filing of a claim with the department on July 29, 1935, for an accident on February 13, 1935. A hearing on the claim was had by Director Whitaker on September 3, 1935, and an award was made by Director Elrod on November 12, 1935, in favor of the claimant, the portion of which pertinent to the present issue is as follows: "The City of Hapeville is therefore directed to pay compensation to R. L. Preston beginning June 27, 1935, at the rate of $9 per week, and to continue to pay him at this rate through September 5, 1935, this being payment of compensation for his period of total disability resulting from his injury. They are directed to pay him at the rate of $4.50 per week, beginning September 6, 1935, and continue to pay him at this rate during the continuance of his partial disability of fifty per cent. as provided in Code § 114-405." This is the section that deals with partial incapacity. From the award of Director Elrod, holding that the claimant had a fifty per cent. partial bodily disability, an appeal was made by the City of Hapeville to the full board. This was heard on December 16, 1935, and on January 17, 1936, the full board affirmed the award of Director Elrod and put certain penalties on the City of Hapeville for noncompliance with the compensation law.

The superior court of Fulton County, by Judge Hugh M. Dorsey, on May 5th, 1936, affirmed the award of the full board, the only change made being the reduction in the attorney's fees. The City of Hapeville brought the case to this court, which, on October 27, 1936, dismissed the writ of error.

It is further shown that on June 11, 1936, R. L. Preston was admitted to the Milledgeville State Hospital on commitment from the court of ordinary of Fulton County, his mental diagnosis being psycho-neurosis-neurasthenia; that he left said hospital on December 30, 1936; that on February 23, 1937, the Hon. Hal M. Stanley, chairman of the Industrial Board, ordered the City of Hapeville to pay to Mrs. Rudolph L. Preston the accumulated compensation then due R. L. Preston under the awards of November 12, 1935, and January 17, 1936, and to continue to pay all future payments of compensation to her as trustee for R. L. Preston for the use and benefit of said Preston, said order reciting that all the directors of said board concurred therein, and, further, that it would continue in effect until further order of the department; that on March 5, 1937, the City of Hapeville paid to Mrs. Preston for R. L. Preston the sum of $90 on the compensation award and penalties, and on March 6, 1937, it paid to Messrs. Ashley M. Murphy and Edgar Neely $75 on the attorneys' fees, and on April 17, 1937, it paid to said attorneys the further sum of $75 on the attorneys' fees, which discharged in full the award for attorney's fees in accordance with the judgment of Judge Dorsey, above referred to. On March 27, 1937, the City of Hapeville paid to Mrs. Preston on the award and penalties $50, and from that date on it paid to Mrs. Preston $9 each week up to and until June 7, 1940, making a total of $1652. In 1937 it paid $509, in 1938 it paid $468, in 1939 it paid $468, and in 1940 it paid $207, making a total of $1652. These payments represented an excess of $117.50 over and above the award made by the Industrial Board, but they were not spread over a period of 350 weeks. The City of Hapeville, by paying weekly amounts in excess of the weekly amounts directed to be paid, discharged the total amount of the award before 300 weeks had elapsed from the date of the alleged injury. On June 22, 1940, R. L. Preston petitioned the Industrial Board for a hearing on a change of condition, and after due notice this hearing was commenced on July 3, 1940. At this hearing H. A. Allen, attorney for the City of Hapeville, made a statement for the city giving facts and figures showing that the total amount of the award including penalties had been paid in full by the city before the petition for a hearing on a change of condition was filed, and Hon. Young H. Fraser, then representing R. L. Preston, also made a statement wherein he contended that any excess amount which had been paid by the city should be considered as gratuity payments, and that the city should not receive credit therefor. By agreement these statements of the attorneys were considered as evidence in the case. By agreement of counsel the hearing was continued indefinitely until Preston could be examined by a physician to determine whether or not his condition had changed, and the reports of the physicians were, by agreement, filed and considered as evidence. Also, a statement of Dr. Yarbrough, assistant superintendent of the Milledgeville State Hospital, dated July 15, 1940, was filed, and by agreement considered as evidence; also a statement of E. L. Hopper, city clerk of the City of Hapeville, as to the amounts paid by the city to or for Preston, was filed, and by agreement was considered as evidence. This last hearing was commenced July 3, 1940, and was had before the Hon. A. J. Hartley, deputy director of the Industrial Board. He made his award on March 15, 1941, wherein he found that Preston was totally disabled and was entitled to compensation for a period of 69 weeks from July 4, 1940, at the rate of $9 per week. He directed that the city pay to Preston $9 per week for 69 weeks, commencing July 4, 1940, and further directed it to pay, in a lump sum, the compensation that had accrued up to the date of the award. "The principle involved in the compensation acts, is that the benefits received are a substitute for the wages of the injured employee, and with this theory in mind the legislatures of all States, except three, have provided for periodical payments. The purpose of this method of payment is to preclude any possibility of an imprudent employee or dependent wasting the means provided for his support and thereby becoming a burden on society. Fraternal insurance statistics show that more than fifty per cent. of the insurance money paid to widows and orphans reaches the hands of swindlers. Our legislatures were, however, mindful of the fact that cases might arise wherein the interests of the individual as well as the community would be better served by the award of a lump sum, and made provisions for such cases by commutation of the weekly payments on their present-worth value.

"This practice of commuting payments to a lump sum, if unrestricted, would also result in great abuses and injustices. The disabled workman's hope of obtaining a large amount of money at one time often would be an incentive to sacrifice rights to additional benefits to which he might be entitled. Most acts, therefore, provide that lump-sum settlements must be approved by the commission or the court." 2 Schneider's Workmen's Compensation Law, 1695.

Recognizing the soundness of this theory, our legislature had said: "When the incapacity to work resulting from an injury is total, the employer shall pay or cause to be paid, as hereinafter provided for, to the employee during such total incapacity a weekly compensation equal to one half of his average wages, but not more than $15 per week nor less than $4 per week, except when the weekly wage is below $4, when the regular wages on the date of the accident shall be the weekly amount paid, and in no case shall the period covered by such compensation be greater than 350 weeks, nor shall the total amount of compensation exceed $5000." Code § 114-404. Where there is a review of an award on account of a change of condition and a new award is made on a weekly basis our Georgia courts have said: "In such a case, as regards an award under a change in condition, the employer and insurance carrier are given credit for the weeks for which they have paid the employee, and not for the amount of money which they have paid him under the previous award or agreement. To hold otherwise would be to effect such previous award or agreement as regards moneys paid, and thereby nullify the meaning of section 45 of the workmen's compensation act [Code, § 114-709]." Helms v.Continental Casualty Ins. Co., 50 Ga. App. 267, 272 (177 S.E. 915); see also Fidelity Casualty Co. v. Leckie, 52 Ga. App. 591 (183 S.E. 642); Liberty Mutual Insurance Co. v.Clay, 180 Ga. 294 (178 S.E. 736); 1 Schneider's Workmen's Compensation Statutes, 637. Our Code, § 114-709, recites: "Upon their own motion before judicial determination or upon the application of any party in interest on the ground of a change in condition, the Department of Industrial Relations may at any time review any award or any settlement made between the parties and filed with the department and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded or agreed upon, subject to the maximum or minimum provided in this Title, and shall immediately send to the parties a copy of the award. No such review shall affect such award as regards anymoneys paid." (Italics ours.)

Thus our law recognizes that as a general rule the week is the proper unit of time for the payment of compensation. Of course, under some circumstances there are cases which may arise under the workmen's compensation act in which a lump-sum award is allowed. In the instant case both the awards were made on a weekly basis. The employer did not make all of the payments on this basis but made some payments in accord with the awards. However, other payments were not in accord therewith as to either amount or time, and thereafter the employer sought a general accounting on all of the amounts paid, and contended that such accounting would show that the City of Hapeville (the employer) had overpaid the amounts designated in the awards. Even if such a general accounting were allowed under the act, it would have been difficult indeed for the claimant to arrive at a correct result under the complications brought about by the manner in which the employer had made the payments. However, to protect the workman, Code § 114-709 says that the claimant (workman) can not be required to account for moneys already paid him under the previous award. Fidelity Casualty Co. v. Leckie, supra.

It should be remembered that the department is not a court authorized to render judgments on contracts. It merely determines the amount of compensation and time of payment in accordance with the provisions of the act. When the employer fails to obey and follow a lawful award he does so at his own peril, and on a review of the first award because of a change of condition if a second award is made under Code § 114-709. "ending, diminishing, or increasing the compensation allowed by a previous award, the employee can not be required to account for or be charged with moneys actually paid under the first award." London Guarantee Accident Co. v. Ritchey, 53 Ga. App. 628 (2) (186 S.E. 863). After the first award, whether expressly or impliedly agreed to or not by both the employer and employee, the employer can not relive himself of liability, and certainly not without the approval of the department under the workmen's compensation act, by payments not in accord with the awards of the department. That is, the department can not be thus ousted of its jurisdiction. The State is concerned in preventing the dissipation of the money paid and an early recourse to charitable aid which systematic compensation aims to avoid. International Coal Mining Co. v. Industrial Commission, 293 Ill. 524 (127 N.E. 703; 10 A.L.R. 1010). "Upon a review on a change in condition an award can not be made that is retroactive to affect moneys already paid. General Accident, Fire Life AssuranceCorporation v. Beatty, 174 Ga. 314 (162 S.E. 668); 45 Ga. App. 104 (163 S.E. 302); Home Accident Insurance Co. v.McNair, 173 Ga. 566 (161 S.E. 131); Fidelity CasualtyCo. v. Leckie, 52 Ga. App. 591; Helms v. ContinentalCasualty Co., 50 Ga. App. 267; Travelers Insurance Co. v.Reid, 49 Ga. App. 317 (175 S.E. 414); Metropolitan CasualtyCo. v. Duckworth, 48 Ga. App. 595 (173 S.E. 177); LibertyMutual Insurance Co. v. Clay, 46 Ga. App. 558 (168 S.E. 79); American Mutual Liability Insurance Co. v. Braden,43 Ga. App. 74 (157 S.E. 904); South v. Indemnity InsuranceCo., 39 Ga. App. 47 (146 S.E. 45)." 1 Schneider's Workmen's Compensation Statutes, 687.

The director or directors were not required to go into any general accounting relatively to the payments of moneys for compensation not provided for in the awards, and they did not do so. No such accounting was gone into by the director or directors. "The facts upon which the superior court was authorized to exercise jurisdiction were those, and only those, contained in the record transmitted to it by the Department of Industrial Relations." Department v. Travelers Insurance Co.,177 Ga. 669, 672 (170 S.E. 883). And, "No order or decree of the department shall be set aside by the court upon any grounds other than one or more of the grounds above stated" (Code § 114-710), and these grounds are where "(1) The directors acted without or in excess of their powers; (2) The order or decree was procured by fraud; (3) The facts found by the directors do not support the order or decree; (4) There is not sufficient competent evidence in the record to warrant the directors in making the order or decree complained of; or that (5) The order or decree is contrary to law." Ibid. The function of the superior court as provided in Code § 114-711 is to enforce, not to change, the awards, and Judge Pomeroy of the superior court seems to have followed the provisions of that section and sought to enforce the awards of the directors and not to change them by going into any intricate system of general accounting in which payments of moneys were made, not as directed by the awards of the director or directors. The directors did not undertake, on a review, to make an award retroactive to affect moneys already paid not as directed by them, nor did the judge of the superior court undertake to go into any such accounting.

The accident happened February 13th, 1935. The claim was filed with the department on July 29, 1935, and is now pending in May, 1942. "The design of the workmen's compensation act is to furnish a speedy, inexpensive, and final settlement of the claim of injured employees. The act abhors and shuns protracted and complicated litigation over the facts of any case. Conners' Case,121 Me. 37 (115 A. 520); Gravitt v. Georgia Casualty Co.,158 Ga. 613, 616 (123 S.E. 897). For this reason the act makes the finding of the industrial commission upon the facts final and conclusive. The finding of that body upon the facts can not be reviewed in the superior court, if there is evidence to support its finding. Such finding can not be reviewed in the appellate court. The finality of a finding of the industrial commission upon the facts of a case is conclusive and binding upon all the courts. The purpose of the act in making such finding conclusive was to avoid the law's delay, which is often the subject of complaint." Maryland Casualty Co. v. England, 160 Ga. 810,812 (129 S.E. 75).

No reversible error appears.

Judgment affirmed. Broyles, C. J., and Gardner, J., concur.