United States Fidelity & Guaranty Co. v. Davis

Nichols, Presiding Judge.

1. The motion of the employer and insurance carrier to remand the case to the State Board of Workmen’s Compensation sought to have an adjudication made by the board that the original award, based upon an agreement between the parties, was not res judicata in that the claimant was not entitled to the accrued compensation because the original award showed an injury to a specific member and the extent of disability had not been determined by the board. Under the numerous decisions that an agreement to pay compensation approved by the board is res judicata and could only be ended or modified upon a hearing to determine a change in condition, except where a new agreement is approved by the board or all payments ordered by such award are paid, the motion to remand was properly dismissed. See Employees Mut. &c. Ins. Co. v. Derwael, 105 Ga. App. 54 (123 SE2d 345). It was there held that even though the original award, based upon an agreement, showed an injury to a specific member such award continued to be effective and res judicata the same as an award based on a total incapacity to labor.

2. The answer of the employer and insurancé' carrier was properly stricken on the claimant’s oral motion to dismiss. In *78Sanders v. American Mut. Liab. Ins. Co., 105 Ga. App. 472 (124 SE2d 923), Presiding Judge Carlisle said, speaking for the court, that upon a hearing in the superior court, in which a claimant was seeking to have a judgment rendered on an approved agreement, it was error to admit in evidence stipulations which showed the claimant had been pronounced able to return to work, that he had had unemployment benefits postponed five weeks because he voluntarily quit his former employer, and that he had gone to work for another employer before a hearing based upon a change in condition had been requested.

In Bituminous Cas. Corp. v. Vaughn, 103 Ga. App. 660 (120 SE2d 190), it was held, Judge Eberhardt writing the opinion, that even an equitable defense was properly stricken which sought to show the claimant had been pronounced “recovered” by the attending physician, that he had gone to work for another employer and had acquiesced in the decision of the insurer and employer to stop compensation payments by not objecting for over two years. In that opinion it was said: “Under such circumstances the employer or its insurance carrier can have no defense except by virtue of (1) a final settlement receipt or other like agreement between the parties changing the terms of the original agreement, approved by the board, or (2) evidence that the statutory amount, or the amount called for by the agreement, has been paid in full, or (3) an order of the board changing or allowing a discontinuance of the compensation. American Cas. Co. v. Herron, 102 Ga. App. 658 (117 SE2d 172). An answer setting up the equitable defense such as here will not avail, for ‘equity aids the vigilant, not the slothful.’ Raines v. Clay, 161 Ga. 574, 578 (131 SE 499). No sufficient reason appears why, if a final disposition of the matter was desired, the employer or the insurance carrier did not request a hearing by the board, as it was authorized by law to do, and failure so to do was at their own peril. City of Hapeville v. Preston, 67 Ga. App. 350 (20 SE2d 202). See also Complete Auto Transit v. Davis, 101 Ga. App. 849 (115 SE2d 482). There was no error in striking the answer on motion and entering up judgment for the unpaid installments.”

These decisions follow and adhere to the principles announced *79in the decision of the Supreme Court in Sears, Roebuck & Co. v. Wilson, 215 Ga. 746 (113 SE2d 611), which authorize credit for wages paid during the continuance of a prior award but which prohibit a showing that the claimant’s condition changed at a time prior to the time a hearing is requested on a “change in condition,” and the decision of this court in Lumbermen’s Mut. Cas. Co. v. Cook, 69 Ga. App. 131 (25 SE2d 67), which approved findings which in effect held that the claimant’s condition changed prior to the filing of the application for a “change in condition” hearing being in conflict with the decision of the Supreme Court, supra, can not be followed.

As further evidence of the fact that only wages paid by the employer (for whom the claimant worked at the time he was injured), are deductible from the amount due under the original award it should be noted that in Butler v. Lee, 97 Ga. App. 184 (102 SE2d 498), it was held that benefits paid the employee under an accident insurance policy maintained by the employer are not deductible. In Utica Mut. Ins. Co. v. Pioda, 90 Ga. App. 593 (83 SE2d 627), it was held that the fact that the claimant was receiving unemployment benefits would not estop him from receiving compensation benefits under the Workmen’s Compensation Act, and in Ocean Acc. &c. Co. v. Hulsey, 105 Ga. App. 479 (125 SE2d 115), it was held that benefits received under the “so-called G. I. Bill” would not estop him from receiving workmen’s compensation benefits.

The reason for the above holdings, we believe, are well stated by the Louisiana Court of Appeals in McKenzie v. Standard Motor Car Co. (La. App.) 15 S2d 115, 118, as follows: “We are of the .opinion . . . that there is a difference in the matter of allowing wages to take the place of compensation depending on whether the injured employee continued to work for the same employer he was working for at the time he was injured or was working for someone else. As long as he is receiving wages from the same employer which are the equivalent of or in excess of the amount of compensation he is entitled to, he is getting that from the party who insured him against his disability and who owes him compensation. On the other hand, when he goes to work for some other employer, under the same circumstances, he is receiv*80ing wages from a party who owes him nothing in the way of compensation as he had never insured him against disability on the job he was injured on, and the total amount he receives therefore bears no relation whatever to the compensation he is entitled to recover from the original employer, or his insurer, and which has already been established.”

The Supreme Court in Sears, Roebuck & Co. v. Wilson, 215 Ga. 746, supra, did not hold that the employer would be entitled to credit for wages earned by the employee, but that the employer would be entitled to “credit for wages paid.”

Moreover, to permit the “liable” employer to show that the claimant has gone to work and earned compensation from another employer (and then to take credit for such compensation earned by the claimant), would be to allow the employer to show that there had been a change in condition without a hearing on such issue even though such original award or approved agreement is res judicata. This would permit the employer to circumvent the original award indirectly when he cannot (under the decision of the Supreme Court in Sears, Roebuck & Co. v. Wilson, 215 Ga. 746, supra), do it directly.

The superior court did not err in striking the employer’s and insurance carrier’s answer which sought to set up as credits against the accrued compensation items other than wages paid by the employer, and in entering a final judgment for the accrued compensation.

Juagment affirmed.

Carlisle, P. J., concurs. Bell, Hall and Eberhardt, JJ., concur specially. Felton, C. J., Frankum, Jordan and Russell, JJ., dissent.