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Complaint. Hart Superior Court. Before Judge Skelton.
FELTON, Chief Judge.
Where a claimant is entitled to compensation payments under a memorandum Of agreement approved by the State Board of Workmen's Compensation, the employer and its insurance carrier cannot discontinue payments thereunder until the claim has been paid in full, or has been settled between the parties, or until a new award or order of the board authorizes such discontinuance, or until an application for a hearing is filed with the board, and where none of these conditions exists at the time of discontinuance of payments, the claimant may obtain a judgment on the memorandum of agreement in the superior court under Code 114-711 for the unpaid compensation up to the date of filing of an application with the board for a hearing based on a change of condition.
Joseph Derwael, defendant in error, filed an application for judgment on July 20, 1961, against J. I. Hass Co., Inc., his employer, and Employers Mutual Liability Insurance Co. of Wisconsin, the employer's insurer, on an attached memorandum of agreement, approved by the State Board of Workmen's Compensation, in Hart County Superior Court in accordance with the provisions of Code 114-711. Under the terms of the memorandum of agreement, dated September 6, 1960, and approved by the board on September 19, 1960, the claimant, Joseph Derwael, was to receive $30 per week compensation, based on a weekly wage of $90, from and including August 9, 1960, "until terminated in accordance with the provisions of the Workmen's Compensation Law of the State of Georgia," for an injury to his right knee cartilage, sustained on July 6, 1960. Defendant in error alleged that payments of said compensation were made to him under said memorandum of agreement up through December 21, 1960. It was stipulated that no further payments were made between December 22, 1960, at which time payments were stopped because of alleged medical reports to the effect that the claimant had reached maximum improvement with no permanent disability, and June 28, 1961, at which time the defendants requested a hearing before the board based on an alleged change of condition of the defendant in error. The defendants filed a motion for continuance of the hearing on the application for judgment, on the grounds that the hearing held before the board on July 20, 1961, had been continued for 30 days for submission of medical evidence by both sides and that if the superior court took jurisdiction over the case, the defendants would have the burden of defending on the same issues in two different courts. The defendants' motion for continuance and plea and answer were overruled and final judgment was entered on the prayers of the petition for $30 per week beginning December 22, 1960, through June 28, 1961, together with accrued interest on each instalment due plus costs. It is to these judgments of the court that the defendants except.
The plaintiffs in error defend their cessation of compensation payments under the memorandum of agreement to the defendant in error on December 21, 1960, by the contention that by operation of Code Ann. 114-406, the claimant was entitled to compensation for total incapacity for work, as provided in 114-404, for only ten weeks and therefore they were not obligated to make payments beyond this ten-week period. These two Code sections are not mutually exclusive, except as to the first ten weeks of payment, which must be credited to total incapacity to work under 114-404. After this ten week "healing period," 114-406(o) provides for an additional 225 week period of payment of compensation for the loss of a leg, and total loss of the use of a leg has been held equivalent to the loss of the leg. Roddy v. Hartford Accident & Indem. Co., 65 Ga. App. 632 (16 SE2d 81).
Even if the time limit for the payment of compensation had been reached on October 17, 1960, by operation of law, as the plaintiffs in error contend, they would not have been justified in ceasing to make such payments at their own election. Indeed, the fact that the payments were continued through December 21, 1960, over two months beyond the ten-weeks limit, refutes the idea that they believed that their obligation to continue the payments terminated at the ten weeks limit. "An award of the State Board of Workmen's Compensation, whether based on agreement or on evidence adduced at a hearing, is res judicata until a new agreement is entered into between the parties or application is made for a hearing to show a 'change in condition,' or the employer shows a change in condition on a hearing held under Code Ann. 114-706." Complete Auto Transit v. Davis, 101 Ga. App. 849 (115 SE2d 482). This court has held that "when a settlement agreement recites that payments are to be made 'until terminated in accordance with the provisions of the Workmen's Compensation Law,' this means that no employer, and no insurance company, can voluntarily and ex parte decide to cease paying the employee, regardless of how well founded its claim may be as a matter of fact, unless and until it is able to produce one of the following three instruments: (1) a final settlement receipt or other like agreement between the parties changing the terms of the original agreement approved by the board; (2) evidence that the statutory amount, or the amount called for under the agreement, has been paid in full, or (3) an order of the board changing or allowing discontinuance of the compensation. If the parties cannot agree, and if the employer for any reason feels that no further compensation should be paid, the employer should then make application for a hearing based on change of condition and show such fact; otherwise, it will be liable under the original agreement or award until the statutory amount has been paid in full or unless the award is altered by the Board of Workmen's Compensation, in which case the employer is liable under the original award or agreement until the date provided by such subsequent award. [cases cited]." American Casualty Co. v. Herron, 102 Ga. App. 658, 660 (117 SE2d 172). In Brazier v. U. S. Fidelity &c. Co., 99 Ga. App. 588, 591 (109 SE2d 309), it was said: "The award goes into effect and is res judicata until the condition changes and a new agreement, or a request for a hearing based on a change of condition is made." (Italics ours). The filing of a petition for a hearing to change the terms of a memorandum of agreement automatically allows the insurance carrier to stop the payment of compensation until the question at issue has been adjudicated by the board.
National Surety Corp. v. Nelson, 99 Ga. App. 95, 97 (2) (107 SE2d 718). Since none of the above-mentioned conditions existed at the time when the defendants stopped making the payments, they remained liable under the original agreement up until the date of their application to the board for a hearing to show a change in condition. The complaint of the plaintiffs in error as to the necessity of their defending the same issue in two different courts is not valid, since the issue before the superior court, i.e., whether or not the plaintiffs in error were liable for payments of compensation up to the date of their application to the board, was different from the issue presented to the board by their application for a hearing, which was whether the payments should be ended, diminished, or increased subsequently to the application.
The court did not err in rendering any of the judgments excepted to.
Judgments affirmed. Bell and Hall, JJ., concur.
Carey C. Carter, Jr., contra.
Lee R. Williams, for plaintiffs in error.
Friday May 22 23:27 EDT

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