The employee was injured on September 8, 1942, and payments of $15 per week were begun on September 15, 1942, for, as provided in the Code, § 114-401, compensation is not payable until after the elapse of seven days from the date of the injury. This compensation, begun on September 15, 1942, was due under the provisions of the Code, § 114-404, which covers total incapacity to work. These payments were continued until December 15, 1942 (a period of 13 weeks), at which time the claimant returned to his job and was paid a salary greater than that which he was receiving at the time of his injury. Shortly after the claimant returned to his job, he filed an application with the board seeking to recover, under a change in condition, for the permanent partial loss of the use of his arm under the Code, § 114-406. However, on a hearing before a director compensation was refused on the ground that since the claimant was earning more since the injury than before he could not recover under § 114-405. Of course this is true, but the claimant could recover under § 114-406, and the board on appeal so found, and entered an award on November 12, 1943, for payments of $15 per week for 100 weeks. In making this award the board *Page 582 erred in part. The Code, § 114-406, provides that in addition to the payments for the specific loss of members, in whole or in part, only 10 weeks shall be allowed for total disability or incapacity. Since the claimant had received 13 weeks for total incapacity, the board should have deducted these 3 weeks in excess of the 10 allowed under § 114-406, and entered an award of $15 per week for 97 weeks, which would have been correct, since awards under § 114-406 are to be made for permanent partial loss of the use of a member regardless of the claimant's earning capacity and salary, and in making his award the board found a 50% loss of the use of the claimant's arm. Section 114-406 provides that for the permanent partial loss of the use of an arm payments shall be 50 per cent. of the regular weekly wages during 200 weeks (thus in the instant case $7.50 for 200 weeks); but, of course, $15 for 100 weeks is the exact equivalent of the Code provision and doubtless of greater benefit to the claimant. However, no question is raised in this case as to the board's authority to increase the payments by shortening the number of weeks, and this will not be passed on here. See, however,American Mutual Liability Ins. Co. v. Braden, 43 Ga. App. 74 (157 S.E. 904); Richardson v. Maryland Casualty Co.,41 Ga. App. 520 (153 S.E. 524). In making this award, clearly the board did not intend that the payments for the permanent partial loss of 50 per cent. use of the claimant's arm should begin on the date of this award, November 12, 1943. It specifically stated that all moneys accrued were to be paid to the claimant at once. Obviously, if the payments were to begin on the date of the award no moneys had accrued. Therefore, we construe it to be the intent of the board that the payments should begin on November 24, 1942, which is the end of the 10-week healing period to which the claimant is entitled under the Code, § 114-406, the section under which this award was made. That this is the correct and customary procedure is clearly indicated by the award made in Fidelity Casualty Co. v. Leckie, 52 Ga. App. 591 (183 S.E. 642), where the situation there is identical in principle with the instant case, i. e., with regard to the making of an award for permanent partial loss of a member following an earlier award for total incapacity which had been made several months before and payments discontinued. This procedure was *Page 583 also followed, as indicated by the record, in Liberty MutualIns. Co. v. Clay, 180 Ga. 294 (178 S.E. 736).
Subsequently to this award under the Code, § 114-406, the employer made a lump-sum settlement of the award, but two weeks after the award of November 12, 1943, the claimant's capacity to work changed, and on November 26, 1943, he entered an application for an award for partial incapacity to work under § 114-405. On May 12, 1944, the board entered an award for partial incapacity to work in the following amounts: $9.50 per week for 24 weeks (the period from November 26, 1943, on which he had a change in condition to May 12, 1944), and $11.25 per week for 112.5 weeks. The board arrived at these figures by deducting from the 300-week period allowed under § 114-405, a credit of 100 weeks for the permanent partial loss of the arm and 63.5 weeks during which time the claimant was receiving compensation, or was earning more than at the time of the injury. Clearly this award is erroneous. The record shows that from September 15, 1942 (which for purposes of compensation is the date of the injury, not September 8, 1942, as used by the board), until November 26, 1943, the claimant was either receiving compensation or earning in excess of the salary received at the time of the injury, and, of course, in making a later award under § 114-405, this period (62.5 weeks) is deductible, but the board errs when it deducts the full 100 weeks. As stated above if the board had begun the award for the permanent partial loss of 50 per cent. use of the arm on November 24, 1942, as it should have done, then from that date until the claimant's change in condition on November 26, 1943 (a period of 52.5 weeks), the claimant would be entitled to these payments of $15 per week for 52.5 weeks, and the only deduction in weeks which the employer was entitled to make; or to put it another way, the only credit under this award, under § 114-406, which the claimant was due the employer, was the 47.5 weeks of the 100 weeks for which he was overpaid. He would, of course, also have to credit the employer for (or rather the employer would be entitled to deduct) the 3 weeks for which he was overpaid under the award under § 114-404 when the claimant later changed to the award under § 114-406, as indicated above. However, the mere credit of this number of weeks during which he was overpaid will not *Page 584 effect the proper credit to the employer, since the claimant was overpaid 47.5 weeks for the arm, and 3 weeks for total incapacity, or a total of 50.5 weeks at $15 per week, making a total amount of $757.50, and to deduct this number of weeks during which time he will be receiving $11.25 per week gives the employer a credit of only $568.13, or an actual loss of $189.37. Therefore, a sufficient number of weeks at $11.25 must be deducted to amount to $757.50. This number of weeks is 67.3 ($757.50 divided by $11.25). The correct and proper number of weeks to be deducted are: 62.5 weeks during which time the claimant was receiving compensation to which he was legally entitled and 67.3 weeks (50.5 weeks at $15 converted to 67.3 at $11.25) for overpayment for the arm and total incapacity, or a total deduction of 129.8 weeks. Therefore the claimant is entitled, in the absence of a change in condition, under the award of May 12, 1944, to the 24 weeks at $9.50 awarded, and to 146.2 (300 weeks less 129.8 weeks equals 170.2 weeks less 24 weeks equals 146.2 weeks) at $11.25. Another way of stating it is as follows:
300 weeks. Total number of weeks provided in the Code, § 114-405,
under which last award was made.
62.5 weeks. Compensation already paid the claimant prior to the
last award, leaving 237.5 weeks to be accounted for.
____________
237.5 weeks.
50.5 weeks. The employer had also, at the time of the last award,
in accordance with the order of the board, not only
paid the 50.5 weeks for which the employer should
187 weeks. be entitled to a deduction, leaving 187 weeks to be
accounted for.
but
16.8 weeks. the employer was entitled to another deduction to
the last award of 16.8 weeks, which he had paid in
___________ accordance with the order of the board, thus leaving
160.2 weeks. 160.2 weeks to be accounted for.
24 weeks. Under the last award the board having awarded
___________ compensation for 24 weeks immediately following
thereafter, we deduct 24 weeks leaving 146.2 weeks
146.2 weeks. to be accounted for.
*Page 585
The claimant, under our interpretation, thus would receive compensation for the following number of weeks:
62.5 weeks. These two items, amounting to 67.3 weeks at $11.25 50.5 weeks. per week, are the equivalent of 50.5 weeks at $15 16.8 weeks. per week. 24 weeks. 146.2 weeks. ____________ 300 weeks.We think that the board, in the award of May 12, 1944 (the last one), after the expiration of 24 weeks at the rate of $9.50 per week, which immediately followed the date of this award, intended to award compensation at $11.25 per week for the remainder of the 300 weeks, as provided in the Code, § 114-405, for which the claimant had not already received compensation, and that the number of weeks remaining for which compensation was to be paid was erroneously calculated to be 112.5 weeks, when it should have been 146.2 weeks. In order to show the figures which will result from an application of the provisions of the workmen's compensation act, and particularly of the ruling made in Liberty Mutual Ins. Co. v. Clay, supra, and Fidelity Casualty Co., supra, we have submitted the above calculations, and under these the claimant is entitled, under the award of May 12, 1944, to 24 weeks at $9.50 per week, which, when paid, would leave a balance of 146.2 weeks at $11.25 per week; provided, of course, that the claimant has undergone no change of condition in the interim.
Another striking reason for our belief that the board did not intend (or if it did so intend it was erroneous) to begin the award on November 12, 1943, for the permanent partial loss of the use of the claimant's arm is, that nowhere in the award does it state that the award should begin on that date, and there is no provision made to pay the claimant for the two weeks between November 12, 1943 (the date of the award), and November 26, 1943, for the permanent partial loss of the use of his arm to which he is unquestionably entitled, as it was not until November 26, 1943, that he showed the change in condition which brought his award under the provisions of the Code, § 114-405. *Page 586