Carpenter v. NEWCOMB DEVILBISS COMPANY

Court of Appeals of Georgia

Carpenter v. NEWCOMB DEVILBISS COMPANY

142 S.E.2d 381, 111 Ga. App. 472, 1965 Ga. App. LEXIS 1000

CourtCourt of Appeals of Georgia

DecidedMarch 4, 1965

Docket41067

StatusPublished

Cited by5 cases

This text of 142 S.E.2d 381 (Carpenter v. NEWCOMB DEVILBISS COMPANY) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Carpenter v. NEWCOMB DEVILBISS COMPANY, 142 S.E.2d 381, 111 Ga. App. 472, 1965 Ga. App. LEXIS 1000 (Ga. Ct. App. 1965).

Pincite

Opinion

Pannell, Judge.

Where, under the Workmen’s Compensation Act, an injured employee has obtained an award of weekly compensation, and the employer or insurance carrier ceases making the payments provided for, the employee may present a certified copy of the award to the superior court of the county in which the injury occurred, or if the injury occurred without this State, then to the superior court of the county in which the original hearing was had, “whereupon said court shall render judgment in accordance therewith, . . .” Code § 114-711; Savannah Lumber Co. v. Burch, 165 Ga. 706 (142 SE 83).

In such a proceeding there cannot lawfully be set off against the unpaid installments of the award the amount paid in settlement of a judgment obtained by the employee against a third party because of a claim of subrogation under the provisions of Code § 114-403 prior to the amendment of 1963 (Ga. L. 1963, pp. 141, 145). This section does not provide for the notice of, or for a hearing on, the proceedings in the superior court. Taylor v. Woodall, 183 Ga. 122, 125 (187 SE 697). If the insurer is entitled to credits on the award because of subrogation under Code § 114-403 prior to the amendment of 1963, the remedy lies under Code § 114-715 before the State Board of Workmen’s Compensation *473 and upon the change in the award, if any there be, the superior court shall revoke or modify the judgment to conform to such decision of the Board (Code § 114-711), or the insurer may proceed by affidavit of illegality upon levy of the execution based on the judgment. See Complete Auto Transit Inc. v. Davis, 106 Ga. App. 369, 371 (2) (126 SE2d 909).

Decided March 4, 1965 Rehearing denied March 23 and April 1, 1965. Robert S. Whitelaw, for plaintiff in error. Smith, Ringel, Martin, Ansley & Carr, Hoke Smith, contra.

Accordingly, it was error for the judge of the superior court to refuse to enter judgment on the certified copy of the award presented.

Judgment reversed.

Nichols, P. J., and Eberhardt, J., concur.

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Pannell, Judge.

Where, under the Workmen’s Compensation Act, an injured employee has obtained an award of weekly compensation, and the employer or insurance carrier ceases making the payments provided for, the employee may present a certified copy of the award to the superior court of the county in which the injury occurred, or if the injury occurred without this State, then to the superior court of the county in which the original hearing was had, “whereupon said court shall render judgment in accordance therewith, . . .” Code § 114-711; Savannah Lumber Co. v. Burch, 165 Ga. 706 (142 SE 83).

In such a proceeding there cannot lawfully be set off against the unpaid installments of the award the amount paid in settlement of a judgment obtained by the employee against a third party because of a claim of subrogation under the provisions of Code § 114-403 prior to the amendment of 1963 (Ga. L. 1963, pp. 141, 145). This section does not provide for the notice of, or for a hearing on, the proceedings in the superior court. Taylor v. Woodall, 183 Ga. 122, 125 (187 SE 697). If the insurer is entitled to credits on the award because of subrogation under Code § 114-403 prior to the amendment of 1963, the remedy lies under Code § 114-715 before the State Board of Workmen’s Compensation *473 and upon the change in the award, if any there be, the superior court shall revoke or modify the judgment to conform to such decision of the Board (Code § 114-711), or the insurer may proceed by affidavit of illegality upon levy of the execution based on the judgment. See Complete Auto Transit Inc. v. Davis, 106 Ga. App. 369, 371 (2) (126 SE2d 909).

Decided March 4, 1965 Rehearing denied March 23 and April 1, 1965. Robert S. Whitelaw, for plaintiff in error. Smith, Ringel, Martin, Ansley & Carr, Hoke Smith, contra.

Accordingly, it was error for the judge of the superior court to refuse to enter judgment on the certified copy of the award presented.

Judgment reversed.

Nichols, P. J., and Eberhardt, J., concur.

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142 S.E.2d 381, 111 Ga. App. 472, 1965 Ga. App. LEXIS 1000, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carpenter-v-newcomb-devilbiss-company-gactapp-1965.

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