Travelers Insurance v. Reid

Broyles, C. J.,

dissenting. I can not agree with the majority opinion in this case. Under section 32 of the workmen’s compensation act as amended by the act of 1923 (Ga. L. 1923, p. 95), compensation for the permanent partial loss of use of a member is in full payment for such injury, and any compensation for the temporary total disability resulting solely from that injury, except for a period not exceeding ten weeks, is expressly excluded. Georgia Casualty Co. v. Jones, 156 Ga. 664 (119 S. E. 721); Maryland Casualty Co. v. Smith, 44 Ga. App. 840 (163 S. E. 247); Stone v. American &c. Co., 42 Ga. App. 271 (155 S. E. 271). Where the injury of an employee is confined to a member and results in a total incapacity for work for a period longer than ten weeks, and finally causes the permanent partial loss of the use of the member, the employee should be paid compensation during the period of his total incapacity and until the maximum improvement in the condition of the member is reached, as for total disability, subject, however, to the provision, which may be inserted in the agreement between the parties, or in the award, that when the maximum improvement in the condition of the member has been reached, all payments of compensation in excess of the ten-weeks temporary total disability shall be deducted from the amount subsequently awarded for the permanent partial loss of the use of the member. Stone v. American &c. Co., supra. In such a case the Department of Industrial Eelations should either exercise the discretion given it by section 41 of the compensation act and allow the employer and insurance carrier credit on the compensation awarded for the permanent partial loss of the use of the member for all payments made in excess of the ten-weeks healing period, such credit to be allowed when the maximum improvement in the condition of the member is reached, or the Department should permit the employer and insurance carrier to enter into an agreement with the employee that full credit for the excessive payments of compensation made during the employee’s temporary total disability should be credited on the compensation for the permanent partial loss of the use of the member, awarded when the maximum improvement in the condition of the member has been reached. In my opinion the judgment of the superior court should be reversed and the case remanded to the Department of Industrial Delations with direction that further proceedings be had in accordance with this opinion.