On Motion for Rehearing.
Bell, Judge.The movant insists that the court in its opinion has misconstrued the decision in Arnold v. Indemnity Ins. Co., 94 Ga. App. 493 (95 S. E. 2d 29). In the Arnold case the effect of the holding is that the prior award is res adjudicata in the absence of fraud, accident, or mistake, and the board’s subsequent jurisdiction “is confined to the question of whether there has been a change in condition under the terms of Code § 114-709.” There, this court held that the board was without jurisdiction to reopen the case in order to determine the extent of the claimant’s disability and whether or not he was justified in refusing an operation where the hearing was requested by the claimant “to determine the extent of his disability and the propriety of his refusal of the laminectomy” (an operation to correct a herniated intervertebral disc).' In the Arnold case it seems clear that the issue was limited as to whether the refusal to accept the operation was unjustified, thus causing the insurer’s discontinuance of payments to be proper. We see no conflict between that opinion and this one, for here the board found a change in the condition of the claimant from total to partial incapacity.
Movant urges that the case of Hartford Accident Ac. Co. v. Brennan, 85 Ga. App. 163 (1) (68 S. E. 2d 170), conflicts with the present holding. In the Brennan case the claimant returned to work but refused to sign settlement receipts, and it was held that the claimant may, at any time within two years from the date the board was notified of his refusal to'sign the receipts, “apply to the Board ‘to determine the amount of compensation to which . . ' . [the claimant] is entitled and for a review of any award or settlement which may have been made between the parties ... on the ground of a change in condition.’ ” There, after hearing, the board made an award granting compen*615sation for permanent partial loss of use, under Code § 114-406, and’for partial incapacity to work, under Code § 114-405. While the implication of the Brennan case is that the application for hearing must be stipulated to be on the ground of a change in condition, we do not agree with movant’s interpretation as to the requirements to be stated in the notice of hearing. Although here the magic words, “change of condition,” were not used in the facts as found, nor in the application for a hearing, th.e award as rendered shows a change in condition of the claimant from his previous incapacity to work to a capacity for light work. Accordingly, since the probable length of disability was stated as indeterminate in the agreement previously approved by the board, we think the board under the facts here had authority to make -an award for partial incapacity based on diminished earnings under Code § 114-405. The case of Allen v. Queen Ins. Co., 101 Ga. App. 9 (112 S. E. 2d 772), does not require a different conclusion, since there it was expressly found by the director that no change in the employee’s condition had occurred. But here the finding of the board supported by the evidence was that the claimant returned to work at his former employment after a period of total disability to work but “from the medical evidence herein . . . that the claimant has had an impairment of his physical condition due to his previous accidental injury in that he cannot do heavy work or strenuous work as he did prior to the operation,” and that the claimant had to change to light work. Viewing the findings of fact as a whole, it is clear that the board concluded that a change in condition had occurred in that the claimant was no longer totally disabled as he was at the beginning from his injury, but was at the latter hearing only partially disabled. Certainly, this finding is one of a change in condition. The cases of Georgia Marine Salvage Co. v. Merritt, 82 Ga. App. 111 (60 S. E. 2d 419) and Fortson v. American Surety Co., 92 Ga. App. 625 (89 S. E. 2d 671), are harmonious with the holding here, as are the other cases cited in the motion for rehearing.
The motion for rehearing is denied.