St. Paul Fire & Marine Insurance v. Seay

Court of Appeals of Georgia

St. Paul Fire & Marine Insurance v. Seay

182 S.E.2d 705, 123 Ga. App. 828, 1971 Ga. App. LEXIS 1404

CourtCourt of Appeals of Georgia

DecidedMay 26, 1971

Docket45816

StatusPublished

Cited by6 cases

This text of 182 S.E.2d 705 (St. Paul Fire & Marine Insurance v. Seay) 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.

Bluebook

St. Paul Fire & Marine Insurance v. Seay, 182 S.E.2d 705, 123 Ga. App. 828, 1971 Ga. App. LEXIS 1404 (Ga. Ct. App. 1971).

Pincite

Opinions

Bell, Chief Judge.

In this workmen’s compensation case, the board found that the claimant suffered a compensable injury on November 14, 1966. The board further found that subsequent to December 14, 1966, the claimant "has been capable of performing at least light work” and is therefore partially disabled since that time and should be compensated under Code Ann. § 114-405 after the later date. The board awarded compensation to the claimant for total incapacity for the period of November 14, 1966, to December 14, 1966, and compensation after Decern[829]*829ber 14, 1966, based on partial disability "equal to 60% of the difference between her average weekly wage before and after said accident but not to exceed $30 per week nor the total sum of $9,000 or to continue for a period of more than 350 weeks from the date of accident or until further order of the board.” The superior court affirmed. Held:

1. It is true that the board did not specifically find as a fact that claimant was totally disabled initially for the period of November 14, 1966, to December 14, 1966. Nonetheless the finding that subsequent to December 14, 1966, she was capable of performing at least light work and was partially disabled can be construed as containing by implication a finding that she was not able to perform "light work” from the date of injury up to December 14, 1966, and thus, was totally disabled for that period.

Also while the board did not specifically find that the duties of her employment prior to injury exceeded "light work,” the finding that subsequent to December 14, 1966, she was partially disabled and capable of performing "light work” contains by implication a finding that her required work prior to injury was more than mere light work and thus was beyond her present capability. Both of these implications of fact were authorized by the evidence.

Legal precision and nicety are not to be insisted upon in the findings of fact of the Compensation Board. After the award that construction of the findings which would render the judgment valid should be adopted in preference to a construction which would render the award invalid where the construction is reasonable and can be fairly applied. Maryland Cas. Corp. v. Mitchell, 83 Ga. App. 99 (62 SE2d 415).

2. The findings of fact relating to that part of the award granting compensation for total incapacity are authorized by the evidence. The judgment of the lower court affirming this part of the award is affirmed.

3. Although the evidence authorized the finding of subsequent partial incapacity, that part of the award granting compensation on this basis is erroneous. There has been no finding or determination made as to the weekly wages which the claimant [830]*830is able to earn upon which an intelligent calculation can be made of the compensation to be paid. Colbert v. Fireman’s Fund Ins. Co., 112 Ga. App. 187 (144 SE2d 470); Mallory v. American Cas. Co., 116 Ga. App. 477 (157 SE2d 775); Mauldin v. Ga. Cas. &c. Co., 119 Ga. App. 406, 409 (167 SE2d 371). The award of partial disability is deficient for another reason. No provision is made reducing the number of weeks of compensation for partial incapacity by the number of weeks for which payment is made for total incapacity as required by Code Ann. § 114-405 (Ga. L. 1963, pp. 141, 146). This part of the judgment which affirms the award of compensation for partial disability must be reversed with direction to remand the case to the board for further action consistent with this opinion.

Argued January 4, 1971 Decided May 26, 1971. Swift, Currie, McGhee & Hiers, James B. Hiers, Jr., for appellants. Smith, Gardner, Wiggins, Geer & Brimberry, Oscar T. Cook, Jr., for appellee.

4. Other assertions of error are all without merit.

Judgment affirmed in part; reversed in part with direction.

Jordan, P. J., Eberhardt, Pannell, Quillian, Whitman and Evans, JJ., concur. Hall, P. J., and Deen, J., dissent.

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Bell, Chief Judge.

In this workmen’s compensation case, the board found that the claimant suffered a compensable injury on November 14, 1966. The board further found that subsequent to December 14, 1966, the claimant "has been capable of performing at least light work” and is therefore partially disabled since that time and should be compensated under Code Ann. § 114-405 after the later date. The board awarded compensation to the claimant for total incapacity for the period of November 14, 1966, to December 14, 1966, and compensation after Decern[829]*829ber 14, 1966, based on partial disability "equal to 60% of the difference between her average weekly wage before and after said accident but not to exceed $30 per week nor the total sum of $9,000 or to continue for a period of more than 350 weeks from the date of accident or until further order of the board.” The superior court affirmed. Held:

1. It is true that the board did not specifically find as a fact that claimant was totally disabled initially for the period of November 14, 1966, to December 14, 1966. Nonetheless the finding that subsequent to December 14, 1966, she was capable of performing at least light work and was partially disabled can be construed as containing by implication a finding that she was not able to perform "light work” from the date of injury up to December 14, 1966, and thus, was totally disabled for that period.

Also while the board did not specifically find that the duties of her employment prior to injury exceeded "light work,” the finding that subsequent to December 14, 1966, she was partially disabled and capable of performing "light work” contains by implication a finding that her required work prior to injury was more than mere light work and thus was beyond her present capability. Both of these implications of fact were authorized by the evidence.

Legal precision and nicety are not to be insisted upon in the findings of fact of the Compensation Board. After the award that construction of the findings which would render the judgment valid should be adopted in preference to a construction which would render the award invalid where the construction is reasonable and can be fairly applied. Maryland Cas. Corp. v. Mitchell, 83 Ga. App. 99 (62 SE2d 415).

2. The findings of fact relating to that part of the award granting compensation for total incapacity are authorized by the evidence. The judgment of the lower court affirming this part of the award is affirmed.

3. Although the evidence authorized the finding of subsequent partial incapacity, that part of the award granting compensation on this basis is erroneous. There has been no finding or determination made as to the weekly wages which the claimant [830]*830is able to earn upon which an intelligent calculation can be made of the compensation to be paid. Colbert v. Fireman’s Fund Ins. Co., 112 Ga. App. 187 (144 SE2d 470); Mallory v. American Cas. Co., 116 Ga. App. 477 (157 SE2d 775); Mauldin v. Ga. Cas. &c. Co., 119 Ga. App. 406, 409 (167 SE2d 371). The award of partial disability is deficient for another reason. No provision is made reducing the number of weeks of compensation for partial incapacity by the number of weeks for which payment is made for total incapacity as required by Code Ann. § 114-405 (Ga. L. 1963, pp. 141, 146). This part of the judgment which affirms the award of compensation for partial disability must be reversed with direction to remand the case to the board for further action consistent with this opinion.

Argued January 4, 1971 Decided May 26, 1971. Swift, Currie, McGhee & Hiers, James B. Hiers, Jr., for appellants. Smith, Gardner, Wiggins, Geer & Brimberry, Oscar T. Cook, Jr., for appellee.

4. Other assertions of error are all without merit.

Judgment affirmed in part; reversed in part with direction.

Jordan, P. J., Eberhardt, Pannell, Quillian, Whitman and Evans, JJ., concur. Hall, P. J., and Deen, J., dissent.

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182 S.E.2d 705, 123 Ga. App. 828, 1971 Ga. App. LEXIS 1404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/st-paul-fire-marine-insurance-v-seay-gactapp-1971.

Opinions

4. Other assertions of error are all without merit.

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