Fireman's Fund Insurance v. Crowder

181 S.E.2d 530, 123 Ga. App. 469

• Court: Court of Appeals of Georgia
• Decided: February 23, 1971
• Docket: 45559, 45560
• Status: Published

Opinions

Evans, Judge.

This is a workmen’s compensation case. The right of an insurer to subrogation is one of the principal questions herein; and the jurisdiction of the State Board of Workmen’s Compensation to administer funds from an insurance policy for medical benefits, in excess of the statutory amount required, is the other principal question to be decided. The employee collected $55,998.40 from a third-party tortfeasor. The employer was carrying insurance for the statutory amount of $5,000, required for medical benefits, and by endorsement an additional $10,000 was added to the policy, making $15,000 as the total amount apparently available for medical expenses. The insurer had actually paid out $998.40 in compensation to the employee and $1,129 in medical expenses. Because of the large sum collected by the employee from the third-party tortfeasor, the insurer contended, in effect, that it had given the proper notice of its right of subrogation and should not be required to pay anything; and the State Board of Workmen’s Compensation agreed with the insurer in large part. The award of the board directed the employee to refund to the insurer $1,129 medical payments and $998.40 compensation payments (which had been collected at the rate of $38.40 per week according to the award), the total amount for compensation payments which the employee could collect being $15,360; and the order of the board further extinguished any future liability by the employer-insurer to the employee for compensation payments and for medical payments to the extent of the statutory amount which is $5,000. Thus, it might appear that the board’s order attempted to extinguish $14,361.60 of compensation payments not yet collected by the employee, and $3,871.00 of medical payments not yet collected. (The employee had a judgment for a part of the above named compensation payments, and no ruling here is intended to determine the efficacy of that judgment). The insurer, however, contends that because of the $15,000 limits as to medical payments in the insurance policy (whereas only $5,000 was required by statute) that it is entitled to a further judgment for an additional $10,000 as a credit against possible future medical expense. The employee contends the board erred in requiring him to repay any sum to the insurer; and erred in extinguishing the compensation payments retroactively for certain monthly payments which the insurer actually had not paid to him. He also contends the notice to him of the insurer’s right to subrogation was defective. Held:

1. The rights and liabilities of employers and employees in a workmen’s compensation case are governed by the Workmen’s Compensation Act, as amended. The Act itself constitutes a complete code of laws upon its administration, hence no contract or agreement, written, oral or implied, can in any manner operate to change the law. Further, the board is not a court authorized to render judgments on contracts or render a declaratory judgment since it merely determines the amount of compensation and the time of payment in accordance with the Act. City of Hapeville v. Preston, 67 Ga. App. 350 (2) (20 SE2d 202); Maryland Cas. Co. v. Stephens, 76 Ga. App. 723 (47 SE2d 108); Tillman v. Moody, 181 Ga. 530, 531 (182 SE 906); Lloyd Adams Inc. v. Liberty Mut. Ins. Co., 190 Ga. 633 (10 SE2d 46).

2. The Workmen’s Compensation Board is without authority of law to revoke, modify or change an award or agreement, duly approved, for compensation and medical expenses retroactively. The attempt by the board to order the employer-claimant to repay certain payments received is beyond the authority of the board to change the finality of the judgment previously made by ordering repayment. It is an absolute nullity, and is surplus-age to the award here made. Code §§ 114-111, 114-403, 114-415, 114-705, 114-711, as amended by Ga. L. 1963, pp. 141, 145; Bishop v. Bussey, 164 Ga. 642, 647 (139 SE 212); Sutton v. Macon Gas Co., 46 Ga. App. 299 (2) (167 SE 543); Jones v. American Mut. Liab. Ins. Co., 48 Ga. App. 351 (172 SE 600); Hartford Acc. &c. Co. v. Tolison, 118 Ga. App. 660, 662 (165 SE2d 192); Gravitt v. Ga. Cas. Co., 158 Ga. 613 (123 SE 897); Aetna Life Ins. Co. v. Davis, 172 Ga. 258 (157 SE 449); Knight v. Shelby Mut. Ins. Co., 110 Ga. App. 149 (1) (137 SE2d 925).

3. The State Board of Workmen’s Compensation having determined that all parties received notice of the subrogation rights of the insurer and employer as required in accordance with the workmen’s compensation subrogation statute (Ga. L. 1922, pp. 185, 186, as amended; 1937, pp. 528, 530; Ga. L. 1963, pp. 141, 145; Code Ann. § 114-403), the insurer and employer are entitled to subrogation rights under this law. However, the board had no authority over additional medical benefits provided by the additional medical coverage endorsement for $10,000 over and above that authorized by law (Code Ann. §§ 114-403, 114-501 as amended by Ga. L. 1963, pp. 141, 145; Ga. L. 1968, pp. 3, 6). The board has jurisdiction over such sum only to the amount of $5,000. The additional medical coverage endorsement is a contract by and between the insurer and the employer which provides rights to the employee in which he has property rights to sue. See Code Ann. §3-108 (Ga. L. 1949, p. 455).

Argued September 16, 1970 Decided February 23, 1971 Rehearing denied March 18, 1971 — Cert, applied for. Swift, Currie, McGhee & Hiers, W. Wray Eckl, for appellants. Seay & Sims, Marshall R. Sims, for appellee.

4. The board did not err in holding that the award of medical payments was "extinguished to the extent of the compensation payments for which Fireman’s Fund Insurance Company is liable and the medical payments up to the statutory amount” of $5,000. However, the board erred in directing Crowder to refund any sums either for medical payments or for weekly compensation payments heretofore awarded to him. While the cross appellant claims that the court erred in extinguishing the claim of the employee for compensation payments or medical payments which were past due and unpaid at the date of the award, this was not the effect of the award.

5. Since as ruled above, the board could not order the employee-claimant to refund any payments heretofore made to him under an award, and that the same was surplusage, but that the findings of the board were otherwise correct, the judgment of the lower court must be affirmed. However, no ruling is here made as to the right of the subrogee to file any civil action against either the claimant or the insurer of the third-party tortfeasor. See Branch & Howard v. Ga. Cas. Co., 39 Ga. App. 319 (147 SE 144); Knight v. Shelby Mut. Ins. Co., supra.

Judgment affirmed on the main appeal and on the cross appeal.

Bell, C. J., Jordan, P. J., and Quillian, J., concur. Pannell, Deen and Whitman, JJ., concur specially, Hall, P. J., and Eberhardt, J., dissent.