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Workmen's compensation. Fulton Superior Court. Before Judge Pharr. April 2, 1959.
1. The employee claimant in this workmen's compensation case suffered a compensable injury on March 27, 1957, following which an agreement was entered into and approved by the board to pay compensation at the total disability rate from April 15, 1957, until terminated by law. The attending physician discharged the claimant on July 10, 1957, and he returned to work on July 15, worked for one day but did not return because of pain in his back, hips and legs. The employer notified the board of termination of payments and tendered final settlement receipts which the claimant refused to sign. The claimant's attorneys there e.n requested a hearing "on the questions of liability, disability, medical and compensation, and any other question which may be presented to the board." The board set a hearing stating the purpose thereof "to determine. change in condition", and, after hearing evidence, the hearing director entered an award for total permanent disability, which was affirmed by the full board and thereafter by a judge of the Superior Court of Fulton County.
The primary contention of the plaintiff in error is that, since the claimant was dismissed by his physician as able to return to work, and since he did return to work for one day, the burden is on him to show a change of condition. It is further contended that, since the claimant was receiving compensation for total disability until the employer ceased paying him, and since he still claims to be totally disabled, he has shown no change in condition which would authorize the award in this case. Under the facts herein stated, the claimant did not request a hearing under Code (Ann.) 114-709 to determine a change in condition, but did request a hearing under Code (Ann.) 114-706, which provides that after an agreement is signed "and the parties thereto then disagree as to the continuance of any weekly payment under such agreement, either party may make application to the Board for a hearing in regard to the matters at issue." The fact that the claimant attempted to work one day and was unable to continue is not such proof of his recovery and ability to work as would throw the burden upon him to show a change in condition thereafter, but, on the other hand, the board adopted the claimant's contention that he was at all times totally disabled and unable to renew his employment. The burden was not on the claimant to show a change of condition after the employer, without authorization from the board, ceased payments, but was on the employer to show that the conditions under which compensation was payable in accordance with the agreement had changed. See National Surety Corp. v. Nelson, 99 Ga. App. 95 (2) (107 S. E. 2d 718). The contention that the award should be reversed because the claimant failed to show a change of condition is without merit.
The judge of the superior court did not err in affirming the award.
Robert A. McCartney, John M. Williams, contra.
Smith, Field, Doremus & Bingel, Charles L. Drew, for plaintiffs in error.
Saturday May 23 00:40 EDT

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