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Workmen's compensation. Fulton Superior Court. Before Judge Pharr.
1. Although an employee who is receiving compensation payments under an agreement approved by the Board of Workmen's Compensation, or under an award of the board, continues to be entitled to such payments after he returns to work until and unless a change in or discontinuance of payments is authorized by order of the board, or until the statutory amount has been paid in full, or a final settlement receipt has been filed with and approved by the board, when the employee returns to his job or to a different job with his employer the employer is entitled to a credit for damages paid during the period of re-employment.
2. Where, as here, the employee receives, during the period of re-employment a wage equal to or in excess of that which he was receiving at the time of his injury, the credit will fully offset any compensation due for that period.
Claimant suffered a compensable injury November 14, 1955, after which he and his employer entered into an agreement for the payment of compensation for total disability and it was duly approved by the board. Payments of compensation were made under the agreement until October 4, 1957, when claimant returned to his job at a rate of pay equal to or in excess of that which he was receiving at the time of the injury. Upon claimant's return to work the employer (a self-insurer) discontinued the compensation payments without having applied for or obtained any order or approval from the board authorizing that such be done. Claimant continued working until January 15, 1958, when he became temporarily incapacitated to work from a cause unrelated to the original injury. On April 29, 1959, he requested a hearing and the board ordered such to be held "to determine liability, disability, compensation and medical." The hearing was held and he was denied further compensations on appeal to Fulton Superior Court the award was set aside because the board had erroneously placed the burden of proof on the employee of showing that there had been a change in his condition, and that judgment was affirmed by this court. Complete Auto Transit, Inc. v. Davis, 101 Ga. App. 849 (115 SE2d 482). Thereafter the case was again considered by the board under its order of April 29, 1959, for a hearing, and a single director awarded compensation for total disability under the original agreement from October 4, 1957, through November 11, 1960, and found that claimant had undergone a change of condition by reason of which he was entitled to no compensation subsequent to November 11, 1960. On appeal to the full board the single director was "reversed," 1 and an award was entered denying claimant compensation from the time he returned to work October 7, 1957, on the ground that he had undergone a change in condition at that time. That award was appealed to Fulton Superior Court where a judgment of reversal was entered because the award of the board was retroactive, and thus made by the board under a misconception of its powers. Upon this judgment of the superior court claimant here assigns error.
1. The award of the full board denying compensation was entered upon the basis that when a claimant returns to work with his employer at a wage equal to or in excess of that which he was receiving when he was injured, he has undergone a change of condition and that his right to compensation thereupon ceases, and that this is true whether or not the employer has obtained any order or approval of the board for discontinuing compensation from the time the employee went back to work.
Insofar as the matter of credit for wages paid is concerned it is not necessary here to deal with the issue as to whether the board can make an order dealing with a change in condition of the employee retroactive to a time prior to the filing of the application for a hearing.
We simply hold here that when an employee returns to his old job, or to some other job with his employer, the employer is entitled to credit for wages paid during the period of re-employment against his liability for the payment of compensation. American Mut. Liab. Ins. Co. v. Hampton, 33 Ga. App. 476 (127 SE 155); Lumbermen's Mut. Cas. Co. v. Cook, 69 Ga. App. 131 (25 SE2d 67); Riegel Textile Corp. v. Vinyard, 88 Ga. App. 753, 756 (77 SE2d 760); Sears, Roebuck & Co. v. Wilson, 215 Ga. 746, 753 (113 SE2d 611).
2. And where, as here, the wage received during the period of re-employment is equal to or in excess of that which the employee was receiving at the time of his injury the credit will offset all liability for compensation during that period. The credit which the employer may take for wages paid is earned each week and it may be asserted by him at any time thereafter when the employee seeks to enforce payment of the compensation due and unpaid during the period of re-employment. This may be done by way of an affidavit of illegality if judgment and execution have been obtained from the superior court for the accruing and unpaid compensation payments or, prior to judgment we think that a determination of the amount of credits due could be made by the board under an appropriate application for a hearing on the question, pursuant to the provisions of Code 114-715. This procedure would in no way have the effect of amending, varying, or changing the award, but merely permits the application on the award of that credit which the law permits.
If there were periods of time subsequent to the effective date of the approved agreement or the original award when the employee worked but did not receive from his employer a wage equal to or in excess of that which he was receiving at the time of his injury, but received something less, we think that the board might, upon proper application, make a determination of the proper amount of credits to which the employer is entitled. And it would seem that a proper method of arriving at that determination would be to allow a credit apportioned, in the light of wages paid as compared with the wage at the time of the injury, against the liability for compensation payments. If there were periods when the employee did no work, the liability remains during those periods for full compensation payments in accordance with the award or the approved agreement. Of course, when there is an adjudication of a change of condition the board may, as provided in Code Ann. 114-405, order a different payment of compensation suited to the change, and the order becomes effective from the time an application for a hearing based upon a change in condition was filed. South v. Indemnity Ins. Co., 39 Ga. App. 47 (4) (146 SE 45); National Surety Corp. v. Nelson, 99 Ga. App. 95, 98 (107 SE2d 718); Pacific Emp. Ins. Co. v. Shoemake, 105 Ga. App. 432 (3) (124 SE2d 653); General Acc. &c. Corp. v. Beatty, 174 Ga. 314 (2) (162 SE 668); Home Acc. Ins. Co. v. McNair, 173 Ga. 566 (161 SE 131). 2
Since a determination of a change in condition may not be retroactive in effect, the finding of the board that the employee here did, after returning to work and beginning January 15, 1958, suffer from a disability that was wholly unrelated to his injury can not avail except from the date the application for the hearing was filed.
It should be observed that if an employee should refuse employment procured for him suitable to his capacity, under the provisions of Code 114-407 the employer's liability for the payment of compensation would be suspended during the continuance of the refusal and none would accrue.
It must be recognized that in these areas disputes will arise between the employer and the employee as to the amount of wages paid, the period or periods to be affected, whether there has been a refusal of employment suitable to the employee's capacity, etc., and these are appropriate questions to be determined under Code 114-706 and 114-715. If there are no disputes the credits would be automatic and simply a matter of calculation and offset against the continuing liability of the employer under the award or approved agreement.
When the employer feels that the employee has experienced a change of condition at the time when he returns to work, whether it be a full or partial recovery, or when the employee must or does stop work again for reasons unrelated to his injury, if he wishes to have his liability for making compensation payments
altered or stopped, he can and should file with the board an application for a hearing under Code Ann. 114-709. We may here observe that upon such a hearing proof that the employee has returned to work and is receiving a wage equal to or in excess of that which he received at the time of his injury, though it entitles the employer to full credit against liability for making compensation payments, will not necessarily authorize a finding that the employee has fully recovered from his injuries.
What we have held here does not conflict with the rulings in American Cas. Co. v. Herron, 102 Ga. App. 658 (117 SE2d 172); Bituminous Cas. Corp. v. Vaughn, 103 Ga. App. 660 (120 SE2d 190); Sanders v. American Mut. Liab. Ins. Co., 105 Ga. App. 472 (124 SE2d 923), and similar cases. In none of them was the issue raised as to what, if any, credit the employer may be entitled to have against his liability for the compensation payments on account of wages paid.
The judgment of the superior court is affirmed insofar as it reverses and remands the matter to the board for further proceedings, findings and award not inconsistent herewith, but otherwise reversed.
This case has been considered by the whole court and all the judges concur.
Judgment affirmed in part; reversed in part. All the Judges concur.
1  The board's hearing on review under Code 114-708 is a de novo proceeding. It does not sit in the capacity of an appellate court, though it does have power to remand the cause to the single director for taking further evidence. It may, of course, adopt the findings and award of the single director as its own or it may make an award entirely different from his. In either event the award of the single director thereafter becomes functus officio. The better practice, we think, is for the board to write and treat its awards as de novo findings and awards rather than that of affirming or reversing the single director.
2  The Supreme Court in McNair dealt with the matter of making a new or "change of condition" award retroactive to the date of the original award, in situations where the board on review of the situation under an application for a determination of whether the employee had experienced a change of condition, determined that the employee had, from the beginning, been only partially disabled rather than totally so; and where compensation for total disability had been paid or in Beatty where the employee had been paid for the specific loss of a member but not for partial disability, saying, "the weekly amounts the employee has already received or which have been awarded to him under the former award for the loss of his toes can not be charged against the weekly amounts payable to him for the partial loss of the use of his foot."It would seem that a good case can be made, both on behalf of the employer and the employee, for making an order or award on the finding of a change in condition effective from the time
Essley B. Burdine, E. D. Shaw, contra.
John M. Williams, Woodruff, Latimer, Savell, Lane & Williams, for plaintiff in error.
Friday May 22 22:46 EDT

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