Argonaut Insurance v. Burkhart

Deen, Presiding Judge,

concurring specially on rehearing.

1. I am concerned over this case because it points up a distinct hiatus in workmen’s compensation law. Code § 114-709 deals with hearings on change of condition, which this is not. In Williamson v. Gulf Ins. Co., 137 Ga. App. 79 (222 SE2d 885), we held that a mistake as to amount of wages in the original approved agreement could be corrected where a 709 hearing was proper. Here we have exactly the same situation except that the claimant is permanently disabled and therefore there is no change of condition. Had it been otherwise, the finding of mistake by the administrative law judge would undoubtedly have been affirmed. It is my personal opinion that such situations were intended to be taken care of by the first sentence of Code Ann. § 114-706 referring to requests for hearing upon a disagreement arising after the approval of an agreement, but unfortunately such an interpretation was wiped out by the judicial requirement that 706 and 709 cases be construed in pari materia. Arnold v. Indem. Ins. Co., 94 Ga. App. 493 (4) (95 SE2d 29). We have thus reached an impasse where the board may correct a mistake in an approved agreement as to the amount of average weekly wage if the claimant is temporarily disabled and goes back to work, but not if he is permanently disabled and cannot do so.

2. I also take most seriously the contention that this claimant was a minor at the time of the hiring, the injury, and the agreement to pay compensation, along with other alleged facts such as that the accident he sustained so injured his spinal cord that he has lost the use of his lower extremities and will remain a paraplegic for the rest of his life. Assuming that the agreement for payment of compensation was prepared by the employer and presented to him for signature shortly after the injury when he was awaiting an operation and was probably sedated, and assuming but not deciding that the average *298weekly wage typed into such agreement was in error, as the administrative law judge found, the decision here represents a failure of justice. The contracts of infants are usually voidable. Code § 20-201. Under the provisions of Code §§ 114-307 and 114-420 it is clearly the intent of compensation law to have the infant protected by a guardian, guardian ad litem, or trustee, none of which occurred in this case. I would therefore assume his remedy lies under Code § 81A-160 (e).