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GENTRY v. GEORGIA CASUALTY & SURETY COMPANY et al.
40080.
Workmen's compensation. Walker Superior Court. Before Judge Fariss.
FELTON, Chief Judge.
An agreement to pay compensation for the total temporary loss of use of a specific member is res judicata as to the degree of disability and the amount of compensation due the employee until such time as it is changed in a manner provided by law. The board erred in this case in making the authorized award of 15% loss of use of the arm effective as of the date of the injury.
Joseph M. Gentry, an employee of defendant Murray Lumber Company, commenced receiving compensation of $24 per week on August 19, 1960, pursuant to an agreement approved by the Workmen's Compensation Board for an injury described as a fractured left hand. At a hearing before a deputy director, requested by the employer to determine change in condition, the claimant moved for a continuance on the grounds that no application for the hearing was on file. This motion was overruled and the director awarded the claimant $24 per week for 20 weeks for permanent partial disability to the left arm, $24 per week for 18 weeks for permanent partial disability to the left hand and $1.20 per week for 246 weeks for 5% permanent partial disability to the body as a whole, payment of which was to commence from November 17, 1961, the date payments ceased under the compensation agreement. The claimant applied for a review of the award. The full board found that the claimant's injuries were confined to the "left upper extremity" and consisted of a 15% permanent partial disability to the left arm and awarded compensation of $24 per week for 10 weeks (healing period) and $24 per week for 30 weeks (for the disability). Payment was directed to commence as of August 19, 1960, the defendant insurer being allowed credit for "all weeks heretofore paid." The claimant appealed to the superior court, where the award of the full board was affirmed, and the claimant excepted.
1. The effect of the award in this case is to award compensation at 15% loss of use of an arm beginning as of the date of the injury, with credit allowed for all weeks already paid. There is no authority of law for such a retroactive award on a hearing for change in condition. With reference to an award of compensation or an approved agreement this court has repeatedly held that such award or agreement is res judicata that the amount of the award or agreement is owed the employee until the award or agreement is changed in a manner prescribed by law. Pacific Employers Ins. Co. v. Shoemake, 105 Ga. App. 432 (2) (124 SE2d 653) and cases cited; Sanders v. American Mut. &c. Co., 105 Ga. App. 472 (1) (124 SE2d 923) and cases cited. The rule is the same whether general disability or injury to specific member alone is involved. This court has not had occasion to rule on this specific question except in Continental Case. Co. v. Haynie, 51 Ga. App. 650 (181 SE 126), and Travelers Ins. Co. v. Reid, 54 Ga. App. 13 (186 SE 887). In the Reid case the court ruled that the judgment remanding the case was the law of the case. It is not the law generally. The Supreme Court has clearly and unequivocally settled the exact question in Liberty Mut. Ins. Co. v. Clay, 180 Ga. 294 (1) (178 SE 736), and Continental Case. Co. v. Haynie, 182 Ga. 608 (186 SE 683). A reading of these cases will leave no doubt on the subject. The board erred in not approving the payment of the agreed compensation until the duty to pay under the agreement was changed as provided by law to take effect as provided by law. It is not necessary to rule on some of the other contentions made. The evidence authorized the finding that the employee had improved so that he only had a 15% loss of use of his arm. While the award used the words "permanent partial disability" to the arm this expression is construed to mean permanent partial loss of use of the arm. The shoulder, as we construe the law, is not a part of the arm. The findings were authorized that the only trouble with the employee's shoulder was temporary and was due to the immobility of the shoulder while the arm was in a cast and that there was no superadded compensable injury due to injury to the shoulder. The contention that the deputy director should have participated in the review by the board is without merit. There is no such provision of law.
The judgment is reversed with direction that the case be remanded to the board with direction that an award be made not inconsistent with this opinion.
Judgment reversed with directions. Eberhardt and Russell, JJ., concur.
Wilson, Branch, Barwick & Vandiver, M. Cook Barwick, Thomas S. Bentley, contra.
Wade H. Leonard, for plaintiff in error.
DECIDED MAY 2, 1963 -- REHEARING DENIED MAY 20, 1963, AND JUNE 12, 1963.
Friday May 22 22:16 EDT


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