United Parcel Service v. Outlaw

380 S.E.2d 310, 190 Ga. App. 840, 1989 Ga. App. LEXIS 455
Court of Appeals of Georgia·Decided March 7, 1989·No. 77297·Published

Opinion

Carley, Chief Judge.

On September 26, 1985, appellee-employee received a blow to his right foot in an on-the-job accident. He received workers’ compensation in the form of temporary total disability income benefits until he returned to work on February 10, 1986. Because the accident had necessitated the amputation of three of appellee’s toes, appellants-employer/insurer commenced the payment of permanent partial disability income benefits to him. These benefits were calculated by appellants on the basis of the actual loss of appellee’s three amputated toes. See OCGA § 34-9-263 (c) (11).

At appellee’s request, a hearing was held in April of 1987 to determine “whether or not [he was] entitled to any additional permanent partial disability income benefits [under OCGA] § 34-9-263.” The Administrative Law Judge (ALJ) found that appellee had suffered no “actual permanent partial impairment to his right foot or leg, besides the loss of his second, third and fourth toes[,] as a result of his September 26, 1985 injury.” Under such circumstances, the ALJ concluded that appellee was “entitled to be paid permanent partial disability benefits equal to the greater of the number of weeks for his actual lost membersf, i.e., his three toes,] pr the referred loss to other members[, i.e., his right foot or right leg,] caused by the actual loss of his toes, but not both.” Because the benefits payable for the actual loss of appellee’s three toes would be greater than the benefits payable for either the 15 percent permanent partial disability found to exist in his right leg as the result of the loss of the toes or the 25 percent permanent partial disability found to exist in his right foot as the result of the loss of the toes, the ALJ concluded that appellee’s “permanent partial disability income benefits have been correctly calculated by [appellants] and that [appellee] is not entitled to any additional permanent partial disability income benefits as a result of his September 26, 1985 injury.”

Appellee appealed to the Full Board. After a de novo review, the [841] Full Board adopted the award of the ALJ as its own. Appellee then appealed to the superior court. The superior court remanded the case for the Full Board’s determination of “whether or not [appellee] suffered an injury to his foot as well as to his toes.” Appellants then applied to this court for a discretionary appeal from the superior court’s order. This appeal is the result of the grant of appellants’ application.

1. “As a matter of law, a claimant under the Georgia Workers’ Compensation Act ([cit.]) is entitled to benefits for permanent partial disability for each specified individual member injured in a work-related accident. [Cits.]” (Emphasis supplied.) N. G. Gilbert Corp. v. Cash, 181 Ga. App. 775, 776 (353 SE2d 840) (1987). It is undisputed, that appellee was injured to the extent of losing three toes as the result of his work-related accident and that he is entitled to benefits for that injury. The issue presented for resolution is whether appellee is also entitled to additional compensation for any permanent partial disability of his foot or his leg. Although the superior court remanded the case for the Full Board to determine whether appellee had suffered a compensable injury to his foot, it is clear that the Full Board has already addressed this factual question. The award of the ALJ, as adopted by the Full Board, specifically found that appellee had incurred no “actual permanent partial impairment of his right foot or leg, besides the loss of his second, third and fourth toes as a result of his September 26, 1985 injury.” (Emphasis supplied.) Accordingly, the superior court erred in remanding the case. The decisive issue is not the failure of the Full Board to make a finding relative to the separate compensability of appellee’s foot or leg but the sufficiency of the evidence to support the finding which was actually made by the Full Board as to noncompensability for those specific members.

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United Parcel Service v. Outlaw, 380 S.E.2d 310, 190 Ga. App. 840, 1989 Ga. App. LEXIS 455 (Ga. Ct. App. 1989).

380 S.E.2d 310 (United Parcel Service v. Outlaw) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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