United States Fidelity & Guaranty Co. v. Davis

Felton, Chief Judge,

dissenting. I concur in Judge Jordan’s dissent. However, I would like to try to make several things a little clearer which I think have been left in a state of doubt and confusion by both the majority views and the dissent.

I would like to give my conception of the meaning of the words “less credit for wages paid,” used by the Supreme Court in Sears, Roebuck & Co. v. Wilson, 215 Ga. 746, supra. I think that these words mean that the employer is given credit for a status oc*86cupied by an employee when he has an agreement or award in his favor and goes back to work and earns wages before the agreement or award is changed. There is no dispute about the fact that an employee must suffer economic loss before he is entitled to compensation. So, if an employee is injured and an agreement or award for total disability is made and the employee goes back to work for the same employer at half wages, in my view he is entitled to the full half-wage pay plus 50% of the compensation fixed in the agreement or award because he is then only % economically disabled. If the words “less credit for wages paid” mean literally that the employer can take credit for the amount of wages paid against the amount of compensation due, the employee in most instances would not receive any compensation at all because even half wages would exceed the compensation. In the situation just stated when an employee with an agreement or award in his favor, unchanged, goes back to work he voluntarily makes an election to reduce his economic disability and when he goes back to work he elects to waive all compensation, or part of it during the time he works, and the waiver operates automatically and there need not be an award to declare the election since there is no change in the award or agreement. The conclusion above is recognized in Complete Auto Transit v. Davis, 106 Ga. App. 369, supra, but not nearly so clearly as I would have liked. I would like to put the matter as follows: When an employee in whose favor an approved agreement to pay compensation for total disability or an award is made therefor, goes back to work before the agreement or award is changed, for less wages than he received before his injury, he voluntarily and automatically disqualifies himself from receiving the full amount of the agreement or award during the time he works after going back and is only entitled to compensation proportionate to his new economic status. If he gets as much wages on return to work as before the injury he no longer suffers an economic disability, during the time he works. If he gets half as much wages as before the injury he disqualifies himself from 50% of the compensation but he has the right to receive the wages plus 50% of the compensation. I submit that the situation as to disqualification by election of a new status is perfectly illustrated by the *87ruling in White v. Murden, 190 Ga. 536 (9 SE2d 745). The court there ruled that an allowance of money in an alimony decree (not based on an agreement), made for the sole use of the wife and payable in monthly installments automatically ceases upon the remarriage of the former wife. The Supreme Court, in Allen v. Withrow, 215 Ga. 388, 390 (110 SE2d 663), disapproved the White case but in my opinion such disapproval is obiter because it was not necessary to overrule White to reach its decision as in the latter case the alimony judgment was based on an agreement which was made a part of the decree. In this view it is immaterial whether the employee goes back to work for his former employer or a different one. The election to go back to work changes his economic status regardless of who the employer is and the notion that a different employer cuts any figure with “credit for wages paid” goes out of the picture.