St. Paul Fire & Marine Insurance v. Seay
St. Paul Fire & Marine Insurance v. Seay
Opinion of the Court
In this workmen’s compensation case, the board found that the claimant suffered a compensable injury on November 14, 1966. The board further found that subsequent to December 14, 1966, the claimant "has been capable of performing at least light work” and is therefore partially disabled since that time and should be compensated under Code Ann. § 114-405 after the later date. The board awarded compensation to the claimant for total incapacity for the period of November 14, 1966, to December 14, 1966, and compensation after Decern
1. It is true that the board did not specifically find as a fact that claimant was totally disabled initially for the period of November 14, 1966, to December 14, 1966. Nonetheless the finding that subsequent to December 14, 1966, she was capable of performing at least light work and was partially disabled can be construed as containing by implication a finding that she was not able to perform "light work” from the date of injury up to December 14, 1966, and thus, was totally disabled for that period.
Also while the board did not specifically find that the duties of her employment prior to injury exceeded "light work,” the finding that subsequent to December 14, 1966, she was partially disabled and capable of performing "light work” contains by implication a finding that her required work prior to injury was more than mere light work and thus was beyond her present capability. Both of these implications of fact were authorized by the evidence.
Legal precision and nicety are not to be insisted upon in the findings of fact of the Compensation Board. After the award that construction of the findings which would render the judgment valid should be adopted in preference to a construction which would render the award invalid where the construction is reasonable and can be fairly applied. Maryland Cas. Corp. v. Mitchell, 83 Ga. App. 99 (62 SE2d 415).
2. The findings of fact relating to that part of the award granting compensation for total incapacity are authorized by the evidence. The judgment of the lower court affirming this part of the award is affirmed.
3. Although the evidence authorized the finding of subsequent partial incapacity, that part of the award granting compensation on this basis is erroneous. There has been no finding or determination made as to the weekly wages which the claimant
4. Other assertions of error are all without merit.
Judgment affirmed in part; reversed in part with direction.
Dissenting Opinion
dissenting. I disagree with Division 3 of the opinion, which reverses the case so far as an award of compensation for permanent partial disability under Code Ann. § 114-405 is concerned.
1. The award of the hearing director found temporary total disability and entered an award under Code Ann. § 114-404 until a given date; then found a change of condition from total to partial disability and continued the award under § 114-405 instead of § 114-404 "not to . . . continue for a period of more than 350 weeks from the date of the accident.” Since § 114-405 allows a maximum of 350 weeks while § 114-404 gives a maximum of 400 weeks it is obvious that Code Ann. § 114-405 has been complied with, especially that part which states: "In the event partial incapacity shall follow a period of total incapacity, the number of
2. I also disagree with the statement in Headnote 3 that "There has been no finding or determination made as to the weekly wages which the claimant is able to earn upon which an intelligent calculation can be made of the compensation to be paid.” The evidence in the case, the award of the hearing director, and the award of the full board amending it, all clearly show that the claimant is not working hut that she does have some capacity to work. This has been one of the troubled areas in compensation claims from the beginning. Early cases required hearings to determine "maximum improvement,” and were full of allusions to percentage of physical impairment, but as courts began to understand the nature of the problem better both these concepts gradually faded out of the picture. As early as Austin Bros. Bridge Co. v. Whitmire, 31 Ga. App. 560 (121 SE 345), it was established both that "capacity” meant earning capacity, not physical impairment, and that "total incapacity” existed "while he remains unable, as a result of his injury, either to resume his former occupation or to procure remunerative employment at a different occupation suitable to his impaired capacity.” We applied this concept in many cases, among them Employers Liability Assur. Corp. v. Hollifield, 93 Ga. App. 51 (90 SE2d 681), where we held that a 30 percent disability to the back resulted in a 100 percent loss of capacity to labor, and directed payment under Code Ann. § 114-404. Soon thereafter, however, in Sears, Roebuck & Co. v. Wilson, 215 Ga. 746 (113 SE2d 611), the Supreme Court reversed under somewhat similar facts where it found from the evidence that the claimant had
As stated in Code Ann. § 114-709, change of condition "insofar as it relates to sections 114-404 and 114-405 shall mean solely an economic change in condition occasioned by the employee’s return or ability to return to work for the same or any other employer; or inability to work or continue to work for the same or any other employer, which inability is proximately caused by the accidental injury.” There is a finding supported by the evidence to the effect that the employee can do unspecified "light work.” It is extremely unlikely that either side could produce further evidence on remand as to the identity or value of such work, however, and as a matter of fact the claimant’s economic condition right now is that, although she has some capacity to work, her wages are zero. This, in my opinion, authorizes an award under § 114-405 for partial disability rather than under § 114-404 for total disability, and the amount to be paid is that sum arrived at by the use of the yardstick in § 114-405, 60% of the difference between the wage prior to the accident and the present wage (zero), not exceeding the
I am authorized to state that Presiding Judge Hall concurs in this dissent.
Reference
- Full Case Name
- ST. PAUL FIRE & MARINE INSURANCE COMPANY Et Al. v. SEAY
- Cited By
- 6 cases
- Status
- Published