New Amsterdam Casualty Co. v. McFarley

Where the award of the Industrial Board denies compensation, the employee, after the expiration of the time for appeal from such award, is not entitled to make application for a review on the ground of a change in condition, under the Code, § 114-709. This rule is not altered by the fact that the order of the board on the original hearing shows that compensation was denied solely on the ground that the disability resulting from accidental injury existed for a period of time less than seven days, which is the minimum period of time for which the statute authorizes compensation, except medical aid as provided in § 114-501.

No. 13514. NOVEMBER 15, 1940. REHEARING DENIED DECEMBER 5, 1940. On November 26, 1936, LeRoy McFarley, an employee of M. J. Carroll, was engaged in unloading loose cement from a freight-car for his employer. Loose cement dust caused an irritation or inflammation of his eyes. On August 9, 1937, McFarley filed with the Industrial Board a claim for compensation against M. J. Carroll and the New Amsterdam Casualty Company, insurance carrier, based upon the injury to his eyes. On October 11, 1937, the director who heard the evidence made the following finding: "It is the finding of this director that the claimant, LeRoy McFarley, sustained an accident on the 26th day of November, 1936, by getting some cement dust in his eye, which irritated eyes for two or three days. It is the further finding by this director that the accident arose out of and in the course of the employment, and that his average weekly wage was $12 per week. It is the further finding of fact that the claimant was only disabled for some four or five days as the result of the accident, and the claimant returned to work, the loss of time not being a sufficient length of time to entitle the claimant to compensation. We find from the medical evidence on the date of the hearing, by the two doctors testifying, that the claimant is not suffering any disability or loss of vision and from their examination they find nothing wrong with the claimant's eyes. Therefore the claim for compensation is denied, and the case is dismissed." There was no appeal from this finding or award. Thereafter, on March 25, 1939, the employee made an application to the Industrial Board for a hearing on the ground of a change in his condition. Counsel for the employer and the insurance carrier moved to dismiss the application, on the ground that the board did not have jurisdiction to entertain it. The director before whom the case was argued sustained the motion, and ordered the application dismissed. Without filing an application for a review by the board, the employee appealed to the superior court. That court sustained the appeal, and entered an order remanding the case to the Industrial Board for a hearing on the merits. The Court of Appeals affirmed this judgment, and the employer and insurance carrier brought a petition for certiorari, assigning error upon the judgment of the Court of Appeals. The record presents the specific question as to whether or not an award of the Industrial Board denying compensation on account of disability resulting from accidental injury arising out of and in the course of employment, but enduring for less than seven days, may be reviewed under the Code, § 114-709. The Court of Appeals held that the application of the employee for such a review should have been considered on its merits by the Industrial Board, and the petition for certiorari assigns error on this ruling. In Davis v. AEtnaLife Insurance Co., 41 Ga. App. 113 (151 S.E. 812), this question was dealt with, and the decision by the Court of Appeals, that the employee was entitled to a review, was reversed on certiorari. AEtna Life Insurance Co. v. Davis, 172 Ga. 258 (157 S.E. 449). This court pointed out that the Industrial Board was a mere creature of the statute, brought into being by the legislature as an administrative body. It therefore has no inherent powers, and consequently has no lawful right to act except as directed by law. In ruling on the question now before us this court said: "The Industrial Commission has not the power and authority, under section 45 [Code, § 114-709] or other provisions of that act, after a full hearing and rendition of an award denying compensation, to which no appeal is entered, to entertain another application by the employee, filed after the time provided in the act for entering an appeal, for compensation for the same injury, based upon an alleged change in the condition of such employee." It appeared that the employee had been the victim of an accident arising out of and in the course of his employment, but the Industrial Board denied compensation, because it was found that the accident produced only superficial wounds and did not result in compensable disability. Thus it is undeniably apparent that the sole ground upon which the award denying compensation was based was "physical condition." Yet, without quibbling over that fact, this court ruled that the award denying compensation could not be reviewed under section 45 of the act. In the present case the award denying compensation was based upon "physical condition." The facts in the two cases are so similar that no reasonable distinction can be drawn. That decision is controlling authority here, and we should either overrule it or follow it; and being convinced of its soundness, we approve and follow it. The argument is advanced, because of the mere fact that in making preliminary rulings the Industrial Board found that disability resulting from the accidental injury existed for a period of time short of the minimum of seven days, which under the Code, § 114-401, is not compensable except for medical aid as provided in § 114-501, that this constituted an award in favor of the employee, notwithstanding the fact that the award in this case was one denying compensation. If this argument is meritorious, and if it is accepted, then it inevitably must follow that the employer had a legal right to appeal, although the award of the Industrial Board denying any compensation was in favor of the employer. Such an appeal would have been instantly dismissed by any court of law, on the ground that the appellant had suffered no injury. This clear fact can not be circumvented by the argument that the Industrial Board has the power to render an advisory opinion, or an opinion that in the first instance is one "favorable to the employee" and in the second is one of uncertainty, indefiniteness, the true meaning of which must await future examination and determination.

To make an award either allowing or disallowing compensation, aside from medical aid as provided in section 114-501, the Industrial Board must under the law determine the preliminary questions whether or not there was an accidental injury resulting in disability for more than seven days, and whether or not it arose out of and in the course of employment. If these preliminary questions are decided in the affirmative, then the employee is entitled to compensation in some amount. On the other hand, a negative decision on any one of these facts requires an award denying compensation. The only award that the Industrial Board has the power under the law to make is either to deny or to grant compensation. No authority is to be found anywhere for the board to make an award simply finding that disability does or does not exist. Any award that does not deal with the question of compensation is a legal nullity, and can not be styled either for or against any one. We have seen that the ruling of the board in the present case to the effect that disability did not exist for a period of time to be compensable could not have been appealed from by the employer; and certainly it can not be held that the employer would be bound by an adverse ruling, and at the same time be denied the right of appeal.

This question is of vital importance, and we believe an examination of the unambiguous statute will remove uncertainties and prevent future confusion. If the statute is clear and unambiguous, no court has a right to construe it to mean other than what it declares. Neal v. Moultrie, 12 Ga. 104, 110;Standard Steel Works Co. v. Williams, 155 Ga. 177 (2), 181 (116 S.E. 636); State v. Camp, 189 Ga. 209 (6 S.E.2d 299). If the statute is unambiguous, its wisdom is a matter exclusively reserved to the legislative branch of the government, and is no legitimate concern of the judiciary. The only authority which the Industrial Board possesses to make a review is found in the Code, § 114-709. Under this section, it may upon its own motion or upon the application of any party in interest, before judicial determination, review any award or settlement made between the parties and filed with the department, on the ground of a "change in condition." It should be observed that this portion of the statute clearly and unmistakably identifies the thing that can be reviewed, in these words: "any award or any settlement made between the parties and filed with the department." We are not here concerned with "any settlement made between the parties," for the reason that no such settlement "has been filed with the department." Hence the question of compensation in the form of medical aid under section 114-501 is not involved. But if the statute stopped here, in view of the meaning of the word "award" as used in the statute, it would appear that the award denying compensation was subject to review on a change of condition. Thus far, apparently the purpose of the statute is to keep open the question of the extent of disability, in order that either party may later have that question re-examined for the protection of their respective rights. But the statute does not stop here; and under the well-recognized rule of construction applicable alike to statutes and contracts, they must be construed as a whole, and the law will not sanction a construction of an isolated portion apart from the whole. As an inseparable part of the same legislative intention and enactment the statute declares in simple and unambiguous language what the Industrial Board can lawfully do on such review, the exact language being as follows: "on such review, may make an award ending, diminishing or increasing the compensation previously awarded or agreed upon." To say that the first portion, providing for review, can not be nullified by the latter portion defining the full scope of what can be done on review, does not amount to a legal interpretation of the statute, but is simply arguing the legislative wisdom in thus limiting the review. The legislature had the legal right and power to deny any review whatever. Consequently it had the unchallengeable right to limit and restrict that review to any issue which it chose.

An award denying compensation is an award granting to the employee precisely nothing, and despite any attempt to end, diminish, or increase it, it will remain the same nothing. To propose making a new award allowing compensation on review, by suggesting that something added to nothing would constitute "increasing," is to juggle with words and ignore the inescapable fact that nothing remains nothing always. The legislature having clearly stated what could be done on such review, and there being nothing that the board could lawfully do in the present case, a review would be meaningless. Since there was no "compensation previously awarded or agreed upon," manifestly the board could not have ended, decreased, or increased something that had never existed. An award by the board denying compensation, after the expiration of the time in which same can be appealed from, stands as an absolute legal bar to any action either on motion of the board or on application of interested parties under the Code, § 114-709. In its opinion the Court of Appeals cited Home Accident InsuranceCo. v. McNair, 173 Ga. 566 (161 S.E. 131), where approval was given to the following language in South v. IndemnityInsurance Co., 39 Ga. App. 47 (3) (146 S.E. 45): "Upon an application for such review, the essentials leading up to the award are to be taken as res judicata, but the physical condition of the employee remains open to inquiry." This rule was properly applied in both of those cases, for the reason that in both an amount of compensation had been awarded to the employee. In all such cases there is "compensation previously awarded or agreed upon," which the Industrial Board on review because of a changed condition may "end, diminish, or increase," as provided by the statute. But that part of the rule stating that "the physical condition of the employee remains open to inquiry" does not obtain in those cases where the award of the board denies any compensation. It would be useless to keep open and inquire into the physical condition of the employee, since there is no authority under the law for the board to do anything about it, regardless of what such inquiry might disclose. The board in the present case correctly held that it had no authority to consider the application for review on the ground of a change in condition. The ruling of the Court of Appeals that the board had such authority is erroneous.

Judgment reversed. All the Justices concur, except Bell andJenkins, JJ., who dissent.