Sears, Roebuck & Co. v. Wilson
Sears, Roebuck & Co. v. Wilson
Opinion of the Court
A compensable injury under the State Workmen’s Compensation Law is one arising out of and in the course of employment. Code (Ann.) § 114-102. Where a claim for compensation is filed, the burden is upon the claimant to show that the injury arose out of and in the course of employment. Aetna Casualty & Surety Co. v. Watson, 91 Ga. App. 657 (86 S. E. 2d 656); Roberts v. Lockheed Aircraft Corp., 93 Ga. App. 440, 441 (2) (92 S. E. 2d 51); Francis v. Liberty Mutual Insurance Co., 95 Ga. App. 225, 226 (97 S. E. 2d 553). In the present case an agreement executed by the employer and the employee on April 22, 1955, providing for compensation of $22.50 per week (which amount was 50% of the employee’s weekly wage), was filed with the State Board of Workmen’s Compensation, and approved by the board on May 5, 1955. This agreement, which provided that it was to continue “until terminated in accordance with the provisions of the Workmen’s Compensation Law,” was in compliance with the requirements of the law as to amount under the amendment of 1949 (Ga. L. 1949, pp. 1357, 1358).
It is strongly urged in this court that the employee’s testimony was vague, contradictory, and equivocal, that it should be construed most strongly against her, and that, so construed, she would not be entitled to recover. See Davis v. Akridge, 199 Ga. 867 (2) (36 S. E. 2d 102), and cases cited. In a case where the plaintiff’s testimony is subject to the objection here insisted upon, he may still recover if there is other testimony tending to establish his case. Ray v. Green, 113 Ga. 920 (39 S. E. 470); Steele v. Central of Georgia Ry. Co., 123 Ga. 237 (51 S. E. 438); Smaha v. George, 195 Ga. 412, 420 (24 S. E. 2d 385); Clark v. Bandy, 196 Ga. 546, 561 (27 S. E. 2d 17). The rule insisted upon by counsel for the employer is applicable in claims arising under the Workmen’s Compensation Law where the testimony of the claimant is germane to the questions to be decided. In the present case the liability of the employer prior to the hearing before the Deputy Director of the Board of Workmen’s Compensation is controlled by the applicable rules of law.
Where the employer and employee enter into an agreement for the payment of compensation, which is duly approved by the board, as in the present case, the award can not be thereafter amended, vacated, modified, or set aside by agreement of the parties or otherwise by any act of the parties. “No contract or agreement, written, oral, or implied, nor any rule, regulation or other device, shall in any manner operate to relieve any employer in whole or in part from any obligation created by this Title, except as herein otherwise expressly provided.” Code § 114-111; Tillman v. Moody, 181 Ga. 530 (182 S. E. 906).
The sole method whereby the award may be modified or terminated is upon a review by the board upon an application on the ground of a change in condition. In Lumbermen’s Mutual Casu
It having been determined by this court in a 'full-bench decision that an award of the Workmen’s Compensation Board stands on the same basis, whether by agreement of the parties, or an award by the board after a hearing and the introduction of evidence (Lumbermen’s Mutual Casualty Co. v. Cook, 195 Ga. 397, supra), the employer in the present case was bound to
The requirement of the Workmen’s Compensation Law that payments under an award by the board continue until a new award is made is not a strange or novel requirement, but is in entire harmony with the presumption of continuity recognized by the courts of the State. In Anderson v. Blythe, 54 Ga. 507, 508, it is stated: “The doctrine that a state of things once existing is presumed to continue until a change or some adequate cause of change appears, or until a presumption of change arises out of the nature of the subject, is an element of universal law. Without such a principle we could count upon the stability of nothing, and to assure ourselves of a set of conditions at one period of time would afford no ground for inferring the same conditions at any other period. This presumption of continuance is a well recognized principle of evidence: 1 Greenleaf, section 41; and we think its application was rightfully invoked by counsel in the, present case.” See also Coleman & Burden Co. v. Rice, 105 Ga. 163 (31 S. E. 424); American Nat. Bank v. Lee, 124 Ga. 863, 865 (53 S. E. 268); Tippins v. Lane, 184 Ga. 331 (191 S. E. 134); Clark v. Baker, 186 Ga. 65, 74 (196 S. E. 750); Glenn v. Tankersley, 187 Ga. 129 (7) (200 S. E. 709); Wilkins v. Georgia Casualty Co., 19 Ga. App. 162, 165 (91 S. E. 224); Griffin v. Miller, 29 Ga. App. 585 (116 S. E. 339); Salter v. Salter, 80 Ga. App. 263, 267 (55 S. E. 2d 868); Roberts v. Hill, 81 Ga. App. 185 (2) (58 S. E. 2d 465); Green’s Georgia Law of Evidence, 95, §27.
The testimony of the physicians shows a partial permanent physical disability of the employee within the range of 15 to 25%, two of the physicians placing the physical disability at 25%. The word disability as used in the compensation law means impairment of earning capacity. Blue Bell Globe Mfg. Co.
Judgment reversed.
Concurring Opinion
concurring specially. I concur in the judgment of reversal but not for the reasons stated in the opinion.
I do not agree with the ruling that this was a continuing award under which the claimant was entitled to draw compensation until a new -award was entered by the board, as the original award ordered payment “during disability,” and when the claimant returned to her work, the disability, within the meaning of the judgment, ceased. Blue Bell Globe Mfg. Co. v. Baird, 61 Ga. App. 298, 299 (6 S. E. 2d 83). For the claimant to draw compensation again, there would have to be a new award based on change in condition.
I agree with the judge of the superior court, who reversed the award of the Workmen’s Compensation Board awarding compensation to the claimant for total disability from the date she left her job at Sears, in his conclusion that there was no> competent evidence to support the award.
The evidence of the claimant in support of her application based on change in condition was evasive, self-contradictory, and equivocal. She admitted that she told her employer that she was leaving her job to take care of her children, and that this was shown on her employment card. She testified that she also told him that she was sick and did not feel well. She admitted that she applied for employment at Davison’s, Rich’s, and Sears, knowing that they were not hiring anyone, and that she would not be
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