Employers Liability Assurance Corp. v. Whitlock

142 S.E.2d 77, 111 Ga. App. 440, 1965 Ga. App. LEXIS 995

• Court: Court of Appeals of Georgia
• Decided: March 10, 1965
• Docket: 41023
• Status: Published

Opinions

Felton, Chief Judge.

After the claimant was injured he went back to work twice before he was fired because he could not do the work he did before he was injured. The fact that each time the claimant went back to work he signed an agreement reciting “that liability for temporary total disability ceased on” the day he returned to work and this agreement was approved by the board, does not amount to a finding or an award that total disability itself had ceased but merely that the employer, while the claimant was employed at his usual wage, was not liable for disability payments. Payments of compensation were due under the last approved agreement therefor and continue thereunder until changed because of a change in condition or otherwise except that no compensation is due while the employee is back at work receiving as much as before the injury. In this case the employee went back to work doing light work, was put back to heavy work and was discharged because he could not do it. In such case payments should have been resumed immediately upon his being discharged and paid until the employer moved for a change in the award due to a change in condition. Even though the claimant filed for a change in condition the burden was on the employer to show that the claimant was no longer totally disabled as shown by the approved agreement providing for compensation. While the claimant testified he could do insignificant light work and the doctor testified that he “might” do selective light work, the claimant testified that all he was able to do was sit at home and do nothing and that he had not tried to get light work. This testimony authorized the finding that the claimant was still totally disabled. There is no evidence that the employee refused to perform light work suitable to his condition which the employer had offered him. While the court erred in dating the compensation due from the time the claimant filed for a hearing on change in condition, there was no> cross bill excepting to that finding as error on the ground that the compensation should have been ordered from the time of the discharge of the claimant. General Accident Fire &c. Assurance Corp. v. Teal, 100 Ga. App. 314 (111 SE2d 113); Complete Auto Transit Inc. v. Davis, 101 Ga. App. 849 (115 SE2d 482); Liberty Mut. Ins. Co. v. Archer, 108 Ga. App. 563 (134 SE2d 204).

Rulings—to the effect that a finding that an employee has experienced a change in condition cannot be made retroactive to a time prior to the date when an application for a hearing on change in condition was filed with the board—do not apply in this case because here the employer was bound to continue payments under the agreement to pay compensation and the employee was under no duty to try to enforce his rights by filing for a hearing on the ground of change in his condition.

The court did not err in affirming the award granting compensation.

Judgment affirmed.

Nichols, P. J., Bell, P. J., Hall, and Pan-net!, JJ., concur. Frankum, Jordan, Eberhardt and Russell, JJ., dissent.