Sears, Roebuck & Co. v. Wilson

Mobley, Justice,

concurring specially. I concur in the judgment of reversal but not for the reasons stated in the opinion.

I do not agree with the ruling that this was a continuing award under which the claimant was entitled to draw compensation until a new -award was entered by the board, as the original award ordered payment “during disability,” and when the claimant returned to her work, the disability, within the meaning of the judgment, ceased. Blue Bell Globe Mfg. Co. v. Baird, 61 Ga. App. 298, 299 (6 S. E. 2d 83). For the claimant to draw compensation again, there would have to be a new award based on change in condition.

I agree with the judge of the superior court, who reversed the award of the Workmen’s Compensation Board awarding compensation to the claimant for total disability from the date she left her job at Sears, in his conclusion that there was no> competent evidence to support the award.

The evidence of the claimant in support of her application based on change in condition was evasive, self-contradictory, and equivocal. She admitted that she told her employer that she was leaving her job to take care of her children, and that this was shown on her employment card. She testified that she also told him that she was sick and did not feel well. She admitted that she applied for employment at Davison’s, Rich’s, and Sears, knowing that they were not hiring anyone, and that she would not be *755able to get a job and that she applied for these jobs, not to get a job, but that she might draw unemployment compensation. Her claim for unemployment compensation was predicated upon her ability to work. The evidence shows that she, in addition to looking after her children, helped her husband in his store; and the claimant made no contention that she was entitled to draw compensation for some two years after she left her job, and then only when the carrier called on her for a final settlement receipt. Construing the evidence of the claimant most strongly against her, which must be done where the evidence is evasive, self-contradictory, equivocal, etc. (Southern Ry. Co. v. Hobbs, 121 Ga. 428 (1), 49 S. E. 294; Steele v. Central of Georgia Ry. Co., 123 Ga. 237, 51 S. E. 438; Weatherford v. Weatherford, 204 Ga. 553, 554, 50 S. E. 2d 323), I do not think that there is any competent evidence in the record to sustain the award of the board that the claimant was suffering total disability at the time she left her employment with Sears and up to the date of the hearing. Medical evidence would support a finding that the claimant was 15 to 25 °/o permanently, partially disabled. The evidence does not support a finding that this degree of disability has rendered it impossible for the claimant to hold a job, such as she is capable of holding, from the date she left her job at Sears.