United States Fidelity & Guaranty Co. v. Gibby

165 S.E.2d 455, 118 Ga. App. 758, 1968 Ga. App. LEXIS 1518

• Court: Court of Appeals of Georgia
• Decided: October 15, 1968
• Docket: 43753
• Status: Published

Opinions

Hall, Judge.

The claimant employee received a back injury which arose out of and in the course of his employment on January 27, 1966. The standard form for agreement as to compensation was filed and approved by the State Board of Workmen’s Compensation. The employer paid the compensation benefits provided in the agreement through May 10, 1966. On April 24, 1967, the employer filed an application for a hearing to determine a change in the claimant’s condition.

The claimant then filed an application for judgment pursuant to Code § 114-711 and prayed that the court enter a judgment for the compensation due under the agreement from May 11, 1966, through April 23, 1967. The judgment was entered on March 12,1968.

The employer subsequently filed a motion to set aside the judgment on the ground that since the cessation of compensation payments the claimant had had weekly earnings equal to or greater than the average weekly wage stated in the agreement.

The employer appeals from the dismissal of his motion to set aside the judgment.

The agreement for compensation executed by the claimant and presented by him to the court for enforcement contained the following provision: “Against the liability for compensation created herein the employer and/or insurance carrier shall receive credit for any week the claimant-employee earns a weekly wage equal to or greater than the average weekly wage stated herein, whether received from the same employer or any other employer.”

In support of the judgment the claimant relies upon Guess v. Liberty Mut. Ins. Co., 219 Ga. 581 (134 SE2d 783) and Awbrey v. Davis, 219 Ga. 598 (134 SE2d 785), cases in which the Supreme Court was split 4 to 3 in holding that “the employer against whom an award of compensation has been made by the Workmen’s Compensation Board cannot take credit for wages paid to the employee by another employer, even though the wages so paid were equal to or greater than those he was receiving at the time of his accident and injury resulting therefrom.” Awbrey v. Davis, supra, p. 599. The holding was based on the premise that an award of the State Board of Workmen’s Compensation until it is modified in the manner provided by the Act “has the same force and effect as the decision or judgment of any other tribunal known to our system of jurisprudence.” Guess v. Liberty Mut. Ins. Co., supra, p. 582. The Guess and Aivbrey cases did not involve the provision for credit contained in the agreement in this case. If the agreement is res judicata, the provision for credit in the agreement is also res judicata.

In the present case the agreement presented to the court for enforcement contained a provision for credit for wages earned from other employers. The trial court erred therefore in denying the employer’s motion to set aside the judgment and in failing to hear evidence tendered to show wages earned by the claimant.

While not applicable to the present case, it should be noted that the Guess and Awbrey cases were negated in 1968 by the General Assembly amending the Workmen’s Compensation Act to provide: “‘Notwithstanding any court decisions previously rendered construing this Code section, ‘change in condition’ as used herein insofar as it relates to Code sections 114-404 and 114-405 shall mean solely an economic change in condition occasioned by the employee’s return or ability to return to work for the same or any other employer; or inability to work or continue to work for the same or any other employer, which inability is proximately caused by the accidental injury. A Supplemental Memorandum of Agreement as to Payment of Compensation or any other agreement between the claimant and employer duly signed by the parties and approved by the State Board of Workmen’s Compensation is, in the absence of fraud, accident, or mistake, conclusive as to such a change in condition. An award of the Board based upon an approved agreement has the same legal effect and dignity as an award of the Board based upon evidence adduced at a hearing of the issues.’ ” Ga. L. 1968, pp. 1, 8.

Argued July 2, 1968 Decided October 15, 1968 Rehearing denied December 4, 1968 Anderson, Walker & Reichert, Albert P. Reichert, for appellants. William O. Carter, for appellee.

The judgment is reversed with direction that the trial court take further action consistent with this opinion and enter judgment in accordance with the terms of the agreement and award presented for enforcement.

The case of Globe Indem. Co. v. Lankford, 35 Ga. App. 599 (134 SE 357), is not in conflict with this holding. It held that the board could “not refuse to make a finding as to a change in condition merely because of a prior approved settlement.” As to an award of the board being res judicata less credit for wages paid, see Sears, Roebuck & Co. v. Wilson, 215 Ga. 746, 752 (113 SE2d 611).

Judgment reversed with direction.

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