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HOME INDEMNITY COMPANY et al. v. TANKSLEY; and vice versa.
Workmen's compensation. Hall Superior Court. Before Judge Kenyon.
DEEN, Judge.
1. An award determines the claimant's physical condition only up to the time of its rendition. Where there is an adjudication that the accident arose out of and in the course of the employment, although it produced no protracted physical disability at the time, the existence of subsequent disability arising from this same cause may be proved on a hearing on change of condition.
The original award contained findings that the back injury of which the employee complained arose out of and in the course of the employment, that it was compensable but that there was no compensable time loss following the date of injury (October 18, 1964), that claimant recovered from the injury on December 14, 1964, that the difficulty she was having at the time prior to the hearing on October 1, 1965, was not job connected, and that she was not entitled to compensation for loss of time. The full board affirmed this award but specifically removed from it a sentence to the effect that claimant had failed to show her then present difficulty resulted from the accident "and that a mere possibility is not sufficient in this case to show a causal connection." The award of the full board must therefore be construed, contrary to the insurer's contentions, as a finding that (a) the injury was job connected, (b) no compensable time loss resulted prior to October 1965, and (c) a finding of lack of causal connection was disapproved and deleted.
A hearing on change of condition was subsequently held on motion of the claimant, and in April 1970, the hearing director found that the claimant had a 20% to 30% disability to the lumbar spine as a result of the injury-connected accident as well as other disability to the neck which was not job connected. Based on this he awarded temporary total disability compensation under Code Ann. 114-405. This was affirmed by the full board. The employer appeals on the theory that the original award is res judicata that the claimant sustained a nondisabling accident. The claimant appeals on the ground that compensation should have been awarded for permanent total disability under Code Ann. 114-404.
1. "The settled doctrine in construing a judgment is to give it, if possible, that construction which renders it valid rather than invalid. Byrd v. Goodman, 195 Ga. 621, 631 (25 SE2d 34)." Landrum v. McGehee, 116 Ga. App. 507 (1) (157 SE2d 830). "In a workmen's compensation case the award of compensation to the claimant is final in so far as it adjudicates that the claimant sustained an accidental injury arising out of and in the course of his employment resulting in disability. The award also determines the extent of the claimant's disability at the time of its rendition. But since it is a matter of common knowledge devolved from human experience that physical conditions almost invariably improve or deteriorate with the passing of time, our law wisely provides that the extent of the claimant's disability is subject to periodic review." American Employers' Ins. Co. v. Hardeman, 91 Ga. App. 462, 465 (85 SE2d 805). The same deputy director wrote both the original award and the award on change of condition; the same full board affirmed in both instances. Although some of the language in the original award is ambiguous, the only tenable construction to be placed on it is that the claimant had a compensable accident on which medical expenses were assessed but at that time had no disability or loss of earnings attributable to the accident. This is borne out by the full board in a de novo proceeding (Rose City Foods v. Usry, 86 Ga. App. 307 (1) (71 SE2d 649)) in which it eliminated language as to lack of causal connection. The evidence amply sustained the claimant's contention that she became progressively disabled as a result of lumbosacral sprain followed by arthritis between the dates of the first and second hearing. The first award did not bar the claimant from showing that her condition did thereafter deteriorate.
2. It is true that disability to the body in a low percentile may yet result in permanent total economic disability. Employers Liab. Assur. Corp. v. Hollifield, 93 Ga. App. 51 (90 SE2d 681). On the other hand the board may find from facts in evidence that although the claimant is not working, the disability to work is not total. Sears, Roebuck & Co. v. Wilson, 215 Ga. 746 (113 SE2d 611). Although in that case the Supreme Court found it unnecessary to decide whether or not Wilson would be entitled to compensation for permanent partial disability under Code Ann. 114-405, there appears no reason why in a proper case such an award should not be upheld. The claimant had in fact worked during a period of the time in question and there was ample medical testimony indicating that her disability to work was not total. In such a case the hearing director is not limited to a choice between no disability and total disability, but may find that the disability is partial although the method of arriving at the amount involves a zero figure for present wages.
The judge of the superior court did not err in affirming the award of the full board.
Judgments affirmed. Bell, C. J., and Pannell, J., concur.
Wall & Campbell, Alford Wall, for appellee.
Swift, Currie, McGhee & Hiers, James B. Hiers, Jr., for appellants.
Friday May 22 15:54 EDT

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