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HARDEMAN v. LIBERTY MUTUAL INSURANCE COMPANY et al.; and vice versa.
46438.
46448.
Workmen's compensation. Walker Superior Court. Before Judge Painter.
DEEN, Judge.
1. The Workmen's Compensation Board may not, on a hearing based on change of condition, change the employee's status from total to partial disability where there has been no finding or determination made as to the weekly wages which the claimant is able to earn upon which an intelligent calculation can be made of the compensation to be paid.
2. In extreme circumstances such as exist here, prolonged refusal of the employee to accept free proffered physical, vocational and psychological rehabilitation services may constitute a refusal to accept "other treatment" so as to justify the suspension of weekly payments during such refusal. This case is remanded for further hearing on this issue.
3. A motion to dismiss the cross appeal has been denied.
Hardeman suffered a compensable back injury in 1967 and was operated on in December of that year. An agreement for compensation for total disability was entered. This is the third motion of the employer based on change of condition. The first two were denied; however, in the first award, as shown by the findings of fact of the deputy director here, it was recommended that claimant accept the services of the Department of Education, Office of Vocational Rehabilitation, and in the second claimant was warned that a continued refusal to try the proffered services might result in cessation of payments. On the present hearing two witnesses testified: (1) the medical witness stated positively that claimant was capable of doing certain types of work which the director found in his order to be available in the community, but it also appears that this witness had offered similar testimony on a previous hearing where total disability had been continued, so that his evidence does not support a finding of change of condition since the last hearing; (2) the claimant testified that his condition had not changed, but also stated that his legs did not bother him so much, and that he could "squat," lift weights up to 20 pounds, and do housework. His testimony amply supports the finding of the deputy director that he has refused proffered psychological and physical rehabilitation and retraining, made no attempt whatever to find work, and ceased helping around the house. He continues to suffer some pain and to take drugs, but this has apparently ameliorated. He no longer needs help getting in and out of bed. The testimony in general supports the finding that "claimant is obviously unwilling to seek or accept any employment that nut only has he failed to make a solitary attempt in that direction in over three years in spite of 'the advice of his physician and the board, but he is also so unmotivated, for reasons perhaps unrelated to trauma except as to the compensation initiated therefrom that he has failed to accept the available and gratuitous services of Vocational Rehabilitation.' "
The deputy director found a change of condition and shifted the award from total disability under Code Ann. 114-404 to partial disability under Code Ann. 114-405. On appeal the judge of the Superior Court of Walker County reversed, holding no change of condition had been proved, and remanded for a hearing on penalty and attorney fees against the defendant. Both parties appeal.
1. Under the decision in St. Paul Fire &c. Ins. Co. v. Seay, 123 Ga. App. 828 (182 SE2d 705), it is error for the State Board of Workmen's Compensation to shift payments from total disability under Code Ann. 114-404 to partial disability under Code Ann. 114-405 where "there has been no finding or determination made as to the weekly wages which the claimant is able to earn upon which an intelligent calculation can he made of the compensation to be paid," even though the evidence on change of condition shows an amelioration of the employee's condition and that he is no longer totally disabled. Therefore, that part of the order of the superior court remanding the case to the board and holding that there is not sufficient competent evidence to sustain the award, is affirmed.
2. That part of the order of the superior court directing the board to consider an award of penalties and attorney fees to plaintiff on remand is reversed. It is obviously based on the premise included in the original award that the board has no authority to require the employee to accept treatment aimed at the correction of psychoneurotic disabilities and involving rehabilitation and vocational retraining. Parts of the award read as follows: "Defendant additionally requested permission to terminate compensation inasmuch as claimant repeatedly had refused to accept State vocational rehabilitation services as recommended in the award of said deputy director dated June 7, 1967, and as ordered in that deputy's subsequent award dated October 13, 1967. 9. Claimant has rejected all proffers of help from Vocational Rehabilitation, against the prior directives of the board, but l find that, although job retraining and physical and psychological therapy as administered by Vocational Rehabilitation may result in physical improvement, the referral of claimant thereto by the board was not intended to fall within the meaning of 'other treatment' as found in Ga. Code 114-501, as amended by Ga. L. 1968, pp. 3, 6." The language referred to ("The refusal of the employee to accept any medical, hospital, surgical or other treatment when ordered by the Department . . . shall bar said employee from further compensation until such refusal ceases") is originally found in Ga. L. 1937, pp. 528, 532. Granting that a strict application of ejusdem gefleris would eliminate orders involving job retraining alone; nevertheless, such training in connection with psychological therapy is today recognized as a medical technique of prime significance in the salvaging of human resources. "It is now axiomatic that proper rehabilitation begins at the moment of the accident. This is because both the character of the medical treatment and the psychological preparation of the injured worker for rehabilitation must ideally be conducted at every stage with the ultimate goal of rehabilitation in mind." 2 Larson's Workmen's Compensation Law, 88.262, 61.20. Refusal to accept such services accompanied by an apparent decision to "retire" on compensation benefits may justify reduction or cessation of payments. Turner v. Neeb Kearney & Co. (La. App.), 139 S. 2d 3.
That part of the judgment of the superior court setting aside the award and remanding the case to the Board of Workmen's Compensation is affirmed as to the main appeal and reversed as to the denial of the cross appeal, with direction that the case be remanded for further consideration in accordance with this opinion.
Judgment affirmed with direction in Case No. 46438; reversed in Case No. 46448. Bell, C. J., and Pannell, J., concur.
Pittman, Kinney, Kemp, Pichett & Avrett, L. Hugh Kemp, for appellees.
Wade H. Leonard, for appellant.
ARGUED SEPTEMBER 7, 1971 -- DECIDED OCTOBER 1, 1971 -- REHEARING DENIED OCTOBER 28, 1971 -- CERT. APPLIED FOR.
Friday May 22 15:51 EDT


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