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ROBERSON v. LUMBERMENS MUTUAL CASUALTY CO. et al.
35419.
Workmen's compensation. Before Judge Perryman. McDuffie Superior Court. August 2, 1954.
FELTON, C. J.
Where subsequent awards pleaded by a claimant show on their faces that the original award of compensation based on an agreement has been superseded by the subsequent awards adverse to the claimant, it was not error for the court to deny a petition for a judgment based on the original award. This is true notwithstanding the failure of the employer and carrier to file a written response to the rule to show cause why the judgment prayed for should not be rendered, where the superseding and controlling awards were pleaded by the claimant and the copy of the records thereof were presented to the judge by the claimant's attorney for a determination of the case.
Corsie Roberson brought an action against Thomson Oak Flooring Company, Inc., and Lumbermens Mutual Casualty Company, in which he prayed for a judgment and for the issuance of a rule nisi. The petition alleged: The petitioner and Thomson Oak Flooring Company, Inc., as his employer, and Lumbermens Mutual Casualty Company, as its insurer, entered into an agreement for payment of compensation because of an injury and partial loss of vision to the petitioner, said injury having occurred on May 29, 1952, and memorandum of agreement having been entered into on June 10, 1952, and same having been approved by the State Board of Workmen's Compensation on June 20, 1952, copy of said approval of agreement being hereto attached as Exhibit A. Said approval of agreement provided for payment of $15 per week beginning June 5, 1952, to the claimant, and continuing during disability. Thereafter, the employer and insurer paid a total of $36, representing 2 weeks and 2 days, but afterwards, they did not pay anything more. Thereafter, the petitioner filed an application with the State Board of Workmen's Compensation for a change in condition, and asking for an award in his favor, in which matter a judgment was rendered on August 25, 1953, adverse to the petitioner, but "which matter is now on appeal in the courts of this State." The memorandum of agreement and award thereon was in effect from June 5, 1952, until August 25, 1953, a total of 63 weeks and 4 days; however, 2 weeks and 2 days of that period have been compensated for, leaving 61 weeks and 2 days during which time no compensation has been paid, and for which compensation is due at the rate of $15 per week, making a total of $919.28, with interest thereon from August 25, 1953, and so that $49.14 as interest is due until June 5, 1954, with future interest on the principal at 7% per annum. None of said amounts now claimed to be due as principal and interest has been paid, and all of same is due, and the employer and insurer fail and refuse to pay, and contend that no money is due hereunder. Because of the failure and refusal to pay, it is necessary and expedient that judgment be rendered and execution issued thereon against the employer and insurer. Attached as an exhibit to the petition was a copy of the board's approval of the agreement. The agreement was dated June 10, 1952, and the approval was dated June 20, 1952. The approval in part contained the following: "Compensation to be paid weekly at the rate of $15 per week, beginning June 5, 1952, and continuing during disability. In case of loss of or partial loss of vision, award will be modified. If any party in interest questions the correctness of this agreement, he may bring the matter to the attention of the Board. It will receive prompt attention."
The court issued a rule in the matter and rendered the following judgment: "The petition in the above stated case was called for a hearing at the time and place set by previous order of the court, Mr. Randall Evans, Jr., as counsel for petitioner, was present, but Mr. Ed H. Fulcher, representing respondents, did not appear till some thirty--forty minutes later. Mr. Evans was excused to meet an out-of-town engagement upon his presenting the petition and a copy of the record of a hearing by Hon. W. E. Buckner, as a Director of the State Board of Workmen's Compensation, to determine a change in the condition of above named petitioner, including adverse awards, dated August 25, 1953, and March 26, 1954, respectively, by the director and the full board, and approved memorandum agreement between the parties, dated June 20, 1952, Mr. Evans stated that he was willing, if Mr. Fulcher came in, to argue their contentions by brief on or by Saturday, July 17, 1954, and departed. After this Mr. Fulcher came in, and, upon being informed of Mr. Evans' statement, agreed to this course. Mr. Fulcher then made the oral contention that the approval memorandum agreement of June 20, 1952, was superseded by the awards of August 25th and March 26th, above referred to, that petitioner was precluded from asking for a judgment under the said memorandum agreement, that and petitioner's prayers for a judgment thereunder should be refused. Opposing counsel filed written briefs within the time provided, and the court reserved his decision till this date, counsel for respondent filing a response to, the petition at the time of filing his brief. Counsel for petitioner contends that the response was filed too late, and asks that it be not allowed. The court has some recollection of asking Mr. Fulcher about a response, and that he did not think it was necessary, but that he might file one. Nothing more was said about it. Under the circumstances, the court must hold that the response came too late. However, the court holds that the respondents, being present in response to the rule nisi, were within their rights to present their contentions and ask that the prayers of the petition be refused. After a careful consideration of the petition and the said record, it is considered, ordered and adjudged that the approval memorandum agreement of June 20, 1952 was superseded by the award of August 25, 1953, and the award of March 26, 1954, as contended by respondents, and the prayer for judgment by petitioner is hereby refused."
The copy of the record referred to by the trial judge in the foregoing judgment contained a settlement receipt, a letter from the insurance carrier to the Workmen s Compensation Board, the award of the single director, and the award of the full board. The settlement receipt was as follows: "Received of Lumbermen's Mutual Casualty Company the sum of six dollars and no cents ($6), making in all, with weekly payments already received by me, the total sum of thirty-six dollars and no cents ($36), of which amount $-------- was paid for permanent disability, in final settlement and satisfaction of all claims for compensation agreement or award subject to review as provided by law, on account of injuries suffered by Corsie Robertson on or about the 29th day of May, 1952, while in the employ of Thomson Oak Flooring Co., temporary disability ceased on the ---- day of -------- 19--. I returned to work on the 23rd day of June, 1952, at a wage of $30 per week. /s/ Corsie Roberson." The letter was as follows: "Lumbermens Mutual Casualty Company, Atlanta, Ga., June 26, 1952. State Board of Workmen's Compensation, 314 State Office Building, Atlanta, Georgia. Gentlemen: 40-C-47764 Corsie Robertson vs. Thomson Oak Flooring Company, your file No. 23210-E. This is to advise that we have on this day made final payment of compensation due to the above employee by reason of this accident. We have paid 2-2/5 weeks temporary total disability $15.00 per week making a total of $36. Final settlement receipts have been forwarded to the employer and upon receipt of same in this office they will be forwarded to you. Very truly yours, /s/ W. J. Ballard, Claim Department." Eliminating the summary of the evidence, the single director's award was as follows: "The above case was called to be heard before the undersigned Director on March 25, 1953 in Thomson, Georgia, for the purpose of determining a change in condition. It was agreed that claimant was injured May 29, 1952, laceration cornea deep interior chamber, while operating a rip saw and a small block flew up and hit left eye, in the course of his employment. If he received compensation through June 22, 1952, at the rate of $15 per week, based upon a weekly wage of $30, beginning June 5th, 1952 . . . Based on this evidence I find as a matter of fact that the claimant has failed to carry the burden of proof to prove that he has had a change in condition or that he has any disability to the eye as a result of the alleged accident and injury. Wherefore, claimant having failed to carry the burden of proof to show a
change in condition and that he has any disability as a result of the accident and injury of May 29, 1952, compensation in the within and foregoing case is herein denied." The award of the full board was as follows: "This case came on for hearing before the full board on September 14, 1953, on appeal by the claimant from the award of Director Buckner dated August 25, 1953. After careful review of the entire record, along with brief of claimant's attorney, the full board is of the opinion that the award and findings of the Director are in keeping with the law and the evidence and that the same should be affirmed. Wherefore, it is the award of the full board that the award of Director W. E. Buckner dated August 25, 1953, be and the same is hereby affirmed. And it is so ordered, this the 26th day of March, 1954."
The single director's "Findings of Fact" contained the following: "It was agreed that claimant was injured on May 29, 1952, while operating a rip saw and a small block flew up and hit him in the left eye in the course of his employment. That he received compensation from June the 5th through June 22, 1952, at the rate of $15 per week, based on a weekly wage of $30, narrowing the issue down to determine a change in condition and extent of disability."
The plaintiff excepts to the, judgment refusing to grant the relief prayed for in his petition.
1. The claimant contends that the case was in effect in default because the employer and insurance carrier did not file a response and did not introduce any evidence of the awards which the court held superseded the judgment of the board sought to be enforced. Whether or not the employer and insurance carrier were required to file a response, the only effect of their failure to do so would be at the most to admit the allegations of the petition, and the petition itself alleged one adverse award, the award of August 25, 1953, and that it was on appeal by the claimant. So the failure to file a response admitted what this award and any other award shown by the record showed. The award showed not only that the director found against the claimant on an alleged change in condition, but also found that he did not have any disability to the eye as a result of the alleged accident and injury. The board had jurisdiction to decide the question of change in condition and also whether the claimant was entitled to compensation as an original proposition, since no finding had been made except the approval of an agreement. The above-stated award covered both issues, and it was binding on the parties until reversed or set aside. This award was affirmed by the full board on March 26, 1954, and there is no contention that it was not still binding. The failure to file a response did not preclude the employer and carrier from participating in the trial and urging that the proof of the facts and records pleaded by the claimant in his petition did not entitle him to a judgment.
2. The claimant contends also that the award adverse to him was not before the court as evidence, since, as he contends, it was not introduced by him or the employer and insurance carrier. The judgment of the court recites that the claimant's attorney did not remain for argument or trial of the case, and that he presented to the court the claimant's petition and a copy of the record of the award of August 25, 1953, and March 26, 1954. Under the circumstance recited in the order, the copy of the record of the above awards was introduced in evidence in the case by the claimant, and the court did not err in considering it and in finding that the claimant was not entitled to the judgment sought for the reason assigned by the court.
The court did not err in rendering the judgment excepted to.
Judgment affirmed. Quillian and Nichols, JJ., concur.
Fulcher, Fulcher & Hogler, contra.
Randall Evans, Jr., for plaintiff in error.
DECIDED DECEMBER 2, 1954.
Saturday May 23 03:48 EDT


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