Noles v. National Engine Rebuilding Co.

169 S.E.2d 185, 119 Ga. App. 833, 1969 Ga. App. LEXIS 1270

• Court: Court of Appeals of Georgia
• Decided: May 16, 1969
• Docket: 44262
• Status: Published

Opinions

Felton, Chief Judge.

1. Prior to the 1968 amendment to Code Ann. § 114-709, the controlling state law was that the time when a change in the condition of an employee became effective was the time at which a petition for a hearing on a change in condition was filed. Sears, Roebuck & Co. v. Wilson, 215 Ga. 746 (113 SE2d 611). The only change'in this respect in the 1968 amendment was to change the effective date of the change in condition from the time of the filing of the petition for a hearing on change in condition to the time the change was found by the board to exist. This was a change on a substantive right and not a new method of procedure because the procedural provisions as to hearings on change in condition remain exactly the same. The amendment does not intend to give a retroactive or restrospective effect to the amendment as to the effective time of the change in condition as to changes occurring prior to its enactment. The word “retroactive” in this amendment refers to changes after the amendment and simply means that the change was from the time of application to actual date of change as found, which would in some cases be found to have come before the application.

Once an award has been entered or an agreement approved, each is “res judicata” until “it is set aside by an approved final settlement receipt or by a subsequent award entered under the provisions of Code■ Ann. § 114-706, finding a change in condition.” Pacific Employers Ins. Co. v. Shoemake, 105 Ga. App. 432 (124 SE2d 653). The 1968 amendment which changes the law as to the “res judicata” aspect of an existing award is a matter of substantive law rather than procedure. McMullen v. Liberty Mut. Ins. Co., 119 Ga. App. 410 (168 SE2d 360).

The court erred in affirming the board’s award which held that the 1968 amendment was procedural and retroactive to include a change in condition found to exist prior to its enactment.

2. The court also erred in ruling that the stipulation, reciting an agreement which this court held in effect not to be binding on the claimant, could not be withdrawn from the record.

Judgments reversed.

Bell, P. J., Jordan, P. J., Hall, Pannell and Been, JJ., concur. Eberhardt, Quillian and Whitman, JJ., dissent.