Fidelity & Casualty Co. v. Leckie

Jenkins, P. J., The claimant received an arm injury on February 13, 1934. Beginning February 20, 1934, and continuing for 10 weeks to May 1, 1934, the employer and his insurance [592] carrier paid to the claimant $9 a week, representing one half of the weekly wages of $18 a week, and covering the amount recoverable for temporary total disability under the Code of 1933, §§ 114-404, 114-406. These $9 weekly payments were continued from May 1 through October 8, 1934, with the understanding by the employer and the insurance company that such payments should be taken as advances against the compensation which might be awarded by the department, rather than as for compensation for the then-existing condition of the claimant. A hearing was had on October 11, 1934, when the department made the following award: “That the claimant had a total loss of use of his right arm from the date of the accident until July 25, 1934. Allowing one week for the waiting period, compensation is therefore awarded the claimant in the sum of $9 per week as temporary total disability from the 20th of February, 1934, for a period of ten weeks, This total disability period ended on May 1st, 1934. Compensation is further awarded the claimant in the sum of $9 per week from May 1st, 1934, until July 24, 1934, a period of 12 weeks in the sum of $9 per week for the total loss of use of the said arm. The director finds that on and after July 24, 1934, the claimant had a permanent partial loss of use of said arm of 33%%. Compensation is therefore further awarded the claimant in the sum of $3 per week for a period of 188 weeks for the partial loss of use of said right arm. . . All money now due the claimant as compensation under the terms of this award is payable at once.” It was further ordered that, “instead of paying the sum of $3 per week for a period of 188 weeks, the compensation shall be increased to $9 per week, and the number of weeks shall be decreased to 62%.” On exceptions by the employer and insurer to a judgment of the superior court affirming this award, they make no attack on the method of payment by shortening the number of weeks and increasing the weekly payment ; but, apparently ignoring the twelve-weeks -period of compensation for the total loss of use of the arm, from May 1 to July 24, 1934, contend that, the claimant being entitled only to the $3 a week for 200 weeks as for a one-third partial loss of use of his arm, amounting to $600, the plaintiffs in error are entitled to a credit on that amount of the sums already paid, $9 a week for 23 weeks from May 1, 1934 to October 8, 1934. [593] No exception being taken by any of the parties as to the failure to allow the $4 weekly minimum fixed by the statute, or as to the method of payment by shortening the final 188 weeks period, no adjudication as to these questions is made. See, in this connection, United States Fidelity & Guaranty Co. v. Edmondson, 179 Ga. 590, 594 (176 S. E. 406). It appears, however, without dispute, that while the plaintiffs in error, prior to July 25, 1934, in their $9 weekly payments only satisfied the provisions of the award during that period, during the subsequent period of 10 weeks from July 25 and up to October 8, 1934, they continued to pay $9 a week instead of the $3 due under the terms of the award; and that, subject to the approval of the department, they were therefore entitled to a credit for this $60 excess, which does not appear to have been passed on or determined by the department. As to the $60 of payments already made in excess of the award, the department would be authorized, under the provisions of the Code, § 114-415, to deduct this amount from the compensation awarded “by shortening the period during which compensation must be paid,” rather than “by reducing the amount of the weekly payments.” Therefore the judgment is affirmed with direction that, upon the remand of the award to the department, it shall pass on and determine the question whether the $60 excess payment be allowed. Under the ruling in Liberty Mutual Ins. Co. v. Clay, 180 Ga. 294 (178 S. E. 736), “an award should not be withheld' for the purpose of adjusting the compensation on the basis of the condition of such member after maximum improvement has been reached.” The direction here given is not to be construed as in contravention of that rule, but merely as a recognition of the right of the department under the Code, § 114-415, to approve excess emergency payments made prior to any request for an adjudication on account of total or partial loss of use of a member. Judgment affirmed, with direction. Stephens and Sutton, JJ., concur.