2020 Georgia Code
Title 34 - Labor and Industrial Relations
Chapter 9 - Workers' Compensation
Article 7 - Compensation Schedules
§ 34-9-262. Compensation for Temporary Partial Disability

Except as otherwise provided in Code Section 34-9-263, where the disability to work resulting from the injury is partial in character but temporary in quality, the employer shall pay or cause to be paid to the employee a weekly benefit equal to two-thirds of the difference between the average weekly wage before the injury and the average weekly wage the employee is able to earn thereafter but not more than $450.00 per week for a period not exceeding 350 weeks from the date of injury.

(Ga. L. 1920, p. 167, § 31; Code 1933, § 114-405; Ga. L. 1949, p. 1357, § 2; Ga. L. 1955, p. 210, § 2; Ga. L. 1963, p. 141, § 6; Ga. L. 1968, p. 3, § 2; Ga. L. 1973, p. 232, § 4; Ga. L. 1974, p. 1143, § 4; Ga. L. 1975, p. 190, § 2; Ga. L. 1978, p. 2220, § 4; Ga. L. 1985, p. 727, § 9; Ga. L. 1990, p. 1409, § 15; Ga. L. 1992, p. 1942, § 22; Ga. L. 1994, p. 887, § 15; Ga. L. 1997, p. 1367, § 9; Ga. L. 1999, p. 817, § 8; Ga. L. 2000, p. 1321, § 6; Ga. L. 2001, p. 748, § 7; Ga. L. 2003, p. 364, § 7; Ga. L. 2005, p. 1210, § 8/HB 327; Ga. L. 2007, p. 616, § 7/HB 424; Ga. L. 2013, p. 651, § 6/HB 154; Ga. L. 2015, p. 1079, § 4/HB 412; Ga. L. 2016, p. 287, § 4/HB 818; Ga. L. 2019, p. 798, § 5/SB 135.)

The 2015 amendment, effective July 1, 2015, substituted "$367.00" for "$350.00" near the end of this Code section.

The 2016 amendment, effective July 1, 2016, substituted "$383.00" for "$367.00" near the end of this Code section.

The 2019 amendment, effective July 1, 2019, substituted "$450.00" for "$383.00" near the end of this Code section.

- For article surveying Georgia cases in the area of workers' compensation from June 1979 through May 1980, see 32 Mercer L. Rev. 261 (1980). For article, "Workers' Compensation," see 53 Mercer L. Rev. 521 (2001). For survey article on workers' compensation law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 459 (2003). For annual survey of law of worker's compensation, see 56 Mercer L. Rev. 479 (2004). For annual survey of workers' compensation law, see 57 Mercer L. Rev. 419 (2005). For survey article on workers' compensation law, see 59 Mercer L. Rev. 463 (2007). For article on the 2013 amendment of this Code section, see 30 Ga. St. U.L. Rev. 185 (2013). For annual survey on worker's compensation, see 71 Mercer L. Rev. 345 (2019). For note on the 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 285 (1992).

ANALYSIS

• General Consideration
• Scope of Section
• Definitions
• Incapacity for Work
• Permanency
• Impairment of Earning Capacity

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, annotations taken from former versions of Code 1933, §§ 114-404, 114-405, and 114-406, which contained different language and provisions are included in the annotations for this Code section.

Term "weekly benefits" under O.C.G.A. § 34-9-82(a) does not refer to only those weekly benefits provided under O.C.G.A. §§ 34-9-261 and34-9-262, which compensate for income loss, but also includes permanent partial disability benefits paid pursuant to O.C.G.A. § 34-9-263 so as to extend the statute of limitation period for filing a claim to two years after the date of the last such payment. Mickens v. Western Probation Detention Ctr., 244 Ga. App. 268, 534 S.E.2d 927 (2000).

- Injured employee may receive compensation for a permanent partial physical disability, while at the same time receiving compensation for a temporary partial economic disability for separate injuries to the same part of the body. City of Atlanta v. Gentry, 184 Ga. App. 8, 360 S.E.2d 611 (1987).

O.C.G.A. § 34-9-262 is midway between "total disability" (O.C.G.A. § 34-9-261) and "permanent partial disability" (O.C.G.A. § 34-9-263) and involves both economic and medical evaluation. Blevins v. Atlantic Steel Co., 172 Ga. App. 557, 323 S.E.2d 861 (1984); Holt's Bakery v. Hutchinson, 177 Ga. App. 154, 338 S.E.2d 742 (1985).

Claimant was not entitled to temporary total disability and temporary partial disability benefits when claimant had already collected a lump sum payment for permanent partial disability, and the method of crediting the overpayment was not set forth with sufficient specificity. Universal Ceramics, Inc. v. Watson, 177 Ga. App. 345, 339 S.E.2d 304 (1985).

Superior court erred in affirming the finding of the state board of workers' compensation appellate division that a worker suffered a change of condition for the worse, under O.C.G.A. § 34-9-104, not a new injury, and that the worker's change of condition claim against the employer was not time-barred by § 34-9-104 (b); in fact, the worker's claim for additional TTD benefits was time-barred because the claim was filed more than two years after the employer last paid the worker TTD benefits. Mech. Maint., Inc. v. Yarbrough, 264 Ga. App. 181, 590 S.E.2d 148 (2003).

- Administrative law judge correctly ruled that the statute of limitations did not begin to run until the last day on which income benefits were actually paid to the employee, including the penalty payments as income payments for such purposes. Tube v. Hurston, 261 Ga. App. 525, 583 S.E.2d 198 (2003).

- O.C.G.A. § 34-9-104(b) is clear and unambiguous, and its plain and ordinary meaning is that the statute bars claims for permanent partial disability benefits made more than four years from the last payment of either temporary total disability benefits or temporary partial disability benefits. Bell v. Gilder Timber Co., 337 Ga. App. 47, 785 S.E.2d 682 (2016).

- Because sufficient evidence supported a finding that the decedent's tinnitis resulted from an automobile accident which occurred in the course of employment, and that such deprived the decedent of normal judgment, the trial court did not err in awarding the surviving spouse both outstanding TTD and statutory death benefits based on the decedent's suicide. Moreover: (1) the question of whether the decedent's suicide was a reasonably foreseeable result of the automobile accident was irrelevant; and (2) any finding that the decedent's suicide constituted an unforeseeable intervening cause would serve only to relieve the tortfeasor of liability, but would not bear on the question of whether the death was compensable. Bayer Corp. v. Lassiter, 282 Ga. App. 346, 638 S.E.2d 812 (2006).

Cited in Maryland Cas. Co. v. Smith, 45 Ga. App. 82, 163 S.E. 247 (1932); Wilkins v. Travelers Ins. Co., 52 Ga. App. 142, 182 S.E. 628 (1935); London Guarantee & Accident Co. v. Boynton, 54 Ga. App. 419, 188 S.E. 265 (1936); Moore v. American Liab. Ins. Co., 67 Ga. App. 259, 19 S.E.2d 763 (1942); London Guarantee & Accident Co. v. Pittman, 69 Ga. App. 146, 25 S.E.2d 60 (1943); United States Fid. & Guar. Co. v. Garner, 76 Ga. App. 87, 45 S.E.2d 109 (1947); Hartford Accident & Indem. Co. v. Brennan, 85 Ga. App. 163, 68 S.E.2d 170 (1951); Allstate Ins. Co. v. Starnes, 95 Ga. App. 274, 97 S.E.2d 624 (1957); Yates v. United States Rubber Co., 100 Ga. App. 583, 112 S.E.2d 182 (1959); Sears, Roebuck & Co. v. Wilson, 215 Ga. 746, 113 S.E.2d 611 (1960); St. Paul Fire & Marine Ins. Co. v. White, 103 Ga. App. 607, 120 S.E.2d 144 (1961); United States Fid. & Guar. Co. v. Wilson, 103 Ga. App. 674, 120 S.E.2d 198 (1961); Cardin v. Riegel Textile Corp., 217 Ga. 797, 125 S.E.2d 62 (1962); Travelers Ins. Co. v. Boyer, 105 Ga. App. 830, 126 S.E.2d 280 (1962); Complete Auto Transit, Inc. v. Davis, 106 Ga. App. 369, 126 S.E.2d 909 (1962); Collins v. Kiker, 106 Ga. App. 513, 127 S.E.2d 489 (1962); Employers Mut. Liab. Ins. Co. v. Dyer, 108 Ga. App. 623, 134 S.E.2d 49 (1963); Liberty Mut. Ins. Co. v. Archer, 108 Ga. App. 563, 134 S.E.2d 204 (1963); GMC v. Boggs, 109 Ga. App. 839, 137 S.E.2d 569 (1964); Waters v. NABISCO, 113 Ga. App. 170, 147 S.E.2d 676 (1966); Gulf Am. Fire & Cas. Co. v. Herndon, 113 Ga. App. 678, 149 S.E.2d 404 (1966); Travelers Ins. Co. v. Floyd, 114 Ga. App. 487, 151 S.E.2d 816 (1966); Waters v. Aetna Cas. & Sur. Co., 114 Ga. App. 744, 152 S.E.2d 754 (1966); Smith v. Liberty Mut. Ins. Co., 114 Ga. App. 755, 152 S.E.2d 782 (1966); Aetna Cas. & Sur. Co. v. Beauchamp, 114 Ga. App. 834, 152 S.E.2d 898 (1966); Argonaut Ins. Co. v. Wilson, 119 Ga. App. 121, 166 S.E.2d 641 (1969); McMullen v. Liberty Mut. Ins. Co., 119 Ga. App. 410, 167 S.E.2d 360 (1969); Hartford Accident & Indem. Co. v. Hale, 119 Ga. App. 565, 168 S.E.2d 204 (1969); Hartford Accident & Indem. Co. v. Carroll, 121 Ga. App. 78, 172 S.E.2d 869 (1970); Mull v. Aetna Cas. & Sur. Co., 226 Ga. 462, 175 S.E.2d 552 (1970); Hopper v. Continental Ins. Co., 121 Ga. App. 850, 176 S.E.2d 109 (1970); Jenkins Enters., Inc. v. Williams, 122 Ga. App. 840, 178 S.E.2d 926 (1970); Home Indem. Co. v. Tanksley, 123 Ga. App. 435, 181 S.E.2d 390 (1971); Argonaut Ins. Co. v. Allen, 123 Ga. App. 741, 182 S.E.2d 508 (1971); Travelers Ins. Co. v. Buice, 124 Ga. App. 626, 185 S.E.2d 549 (1971); King v. Pacific Employers Ins. Co., 124 Ga. App. 792, 186 S.E.2d 156 (1971); Employers Mut. Liab. Ins. Co. v. Turner, 126 Ga. App. 24, 189 S.E.2d 862 (1972); Fidelity & Cas. Co. v. Funderburk, 128 Ga. App. 395, 196 S.E.2d 695 (1973); Liberty Mut. Ins. Co. v. Williams, 129 Ga. App. 354, 199 S.E.2d 673 (1973); Pack v. Insurance Co. of N. Am., 129 Ga. App. 589, 200 S.E.2d 300 (1973); Massey v. Thiokol Chem. Corp., 368 F. Supp. 668 (S.D. Ga. 1973); Allstate Ins. Co. v. Prance, 130 Ga. App. 735, 202 S.E.2d 832 (1974); West Point Pepperell, Inc. v. Springfield, 140 Ga. App. 530, 231 S.E.2d 811 (1976); Nance v. Argonaut Ins. Co., 143 Ga. App. 537, 239 S.E.2d 156 (1977); Wills v. St. Paul Fire & Marine Ins. Co., 143 Ga. App. 562, 239 S.E.2d 219 (1977); Newton v. Liberty Mut. Ins. Co., 148 Ga. App. 224, 251 S.E.2d 138 (1978); Hart v. Owens-Illinois, Inc., 161 Ga. App. 831, 289 S.E.2d 544 (1982); Georgia Power Co. v. Brown, 169 Ga. App. 45, 311 S.E.2d 236 (1983); GMC v. Summerous, 170 Ga. App. 338, 317 S.E.2d 318 (1984); Georgia Mental Health Inst. v. Padgett, 171 Ga. App. 353, 319 S.E.2d 524 (1984); Caraway v. ESB, Inc., 172 Ga. App. 349, 323 S.E.2d 197 (1984); Smith v. Lockheed-Georgia Co., 185 Ga. App. 869, 366 S.E.2d 178 (1988).

Ga. L. 1920, p. 167, § 30 (see now O.C.G.A. § 34-9-262) provided for compensation in all cases of partial incapacity, whether temporary or permanent, unless such incapacity was caused by the loss of one of the members of the body enumerated in Ga. L. 1920, p. 167, § 32 (see now O.C.G.A. § 34-9-263); in such a case, that section applied exclusively. Georgia Cas. Co. v. Jones, 156 Ga. 664, 119 S.E. 721 (1923).

Construction of §§ 34-9-262 and 34-9-263. - For the succeeding period of partial disability, if resulting solely from one or more of the injuries specifically mentioned in Ga. L. 1920, p. 167, § 32 (see now O.C.G.A. § 34-9-263), the compensation must be as prescribed by that section and not otherwise; but if such partial disability results solely from such injuries as are covered only by Ga. L. 1920, p. 167, § 30 (see now O.C.G.A. § 34-9-262), then the compensation must be as provided by that section; if, however, such partial disability results in part from injuries specifically mentioned in Ga. L. 1920, p. 167, § 32, then the aggregate compensation is that amount for both classes of injuries, the amount allowed for each injury being dependent upon the section providing for it and the aggregate amount being kept within the maximum allowed. Austin Bros. Bridge Co. v. Whitmire, 31 Ga. App. 560, 121 S.E. 345 (1924).

If injury not to specific member, compensation determined by § 34-9-261 or § 34-9-262. - If the injury is not to a specific member, compensation must be determined under former Code 1933, § 114-404 (see now O.C.G.A. § 34-9-261) when the incapacity to work resulting from an injury was total, or under former Code 1933, § 114-405 (see now O.C.G.A. § 34-9-262) if the incapacity for work resulting from the injury was partial. Employers Liab. Assurance Corp. v. Hollifield, 93 Ga. App. 51, 90 S.E.2d 681 (1955).

- O.C.G.A. § 34-9-263(b)(2) merely provides that an employee who suffers a single compensable injury shall not be entitled to permanent partial disability benefits for that injury, so long as the employee would be entitled to receive temporary total disability or temporary partial disability benefits as the result of that same injury. Cedartown Nursing Home v. Dunn, 174 Ga. App. 720, 330 S.E.2d 905 (1985).

- Injured employee is not precluded from receipt of compensation for a permanent partial physical disability, while at the same time receiving compensation for a temporary total or partial economic disability which results from an entirely separate injury. Cedartown Nursing Home v. Dunn, 174 Ga. App. 720, 330 S.E.2d 905 (1985).

- When employee sustained a work-related injury which resulted in a fracture of the head of the humerus and a permanent partial loss of the use of the employee's left arm, an award of compensation for specific member injury, rather than bodily disability, was proper. Owens-Illinois, Inc. v. Douglas, 151 Ga. App. 408, 260 S.E.2d 509 (1979).

- Compensation payable to a claimant who lost the trumpet part of claimant's ear in an accident under the workers' compensation provisions was not governed by former Code 1933, § 114-406 (see now O.C.G.A. § 34-9-263), inasmuch as that section related to loss of bodily members and loss of hearing in both ears, and it has been held that an ear is not embraced in the term "member," but whatever compensation the claimant was entitled to must be determined by former Code 1933, § 114-404 (see now O.C.G.A. § 34-9-261), relating to total incapacity, and former Code 1933, § 114-405 (see now O.C.G.A. § 34-9-262), relating to partial incapacity. Lumbermens Mut. Cas. Co. v. Cook, 69 Ga. App. 131, 25 S.E.2d 67 (1943) (decided under former Code 1933, § 114-406, prior to revision by Ga. L. 1971, p. 895, § 1).

§ 34-9-263 when superadded injury affects body portions other than specific member. - If there was a permanent loss of use, either total or partial, resulting from an injury to a specific member, compensation may be had under former Code 1933, § 114-406 (see now O.C.G.A. § 34-9-263), and this is exclusive of compensation under former Code 1933, § 114-404 (see now O.C.G.A. § 34-9-261) and former Code 1933, § 114-405 (see now O.C.G.A. § 34-9-262), unless in consequence of the injury to the member the claimant suffered a superadded injury or disease affecting other portions of the claimant's body, as a result of which the claimant was either totally or partially disabled to work at gainful employment, in which event compensation is payable under those former provisions. Clark v. Liberty Mut. Ins. Co., 108 Ga. App. 806, 134 S.E.2d 534 (1963).

- If the accident to the claimant resulted in multiple injuries to claimant, an award of compensation for a permanent partial loss of the use of a member specified in former Code 1933, § 114-406 (see now O.C.G.A. § 34-9-263) and for partial incapacity to work in accordance with former Code 1933, § 114-405 (see now O.C.G.A. § 34-9-262), if there was evidence to support such an award, was not contrary to law or in excess of the powers of the board. Hartford Accident & Indem. Co. v. Brennan, 85 Ga. App. 163, 68 S.E.2d 170 (1951).

Total loss of use of both legs requires compensation as for total, not partial, incapacity; further, when the claimant suffered only a 60 percent loss of use to each of claimant's legs, the award of compensation for "incapacity", rather than for an "industrial handicap," was not error. Armour & Co. v. Walker, 99 Ga. App. 64, 107 S.E.2d 691 (1959).

- If an award of the maximum amount for total incapacity was made under former Code 1933, § 114-404 (see now O.C.G.A. § 34-9-261), a subsequent modification for partial incapacity under former Code 1933, § 114-405 (see now O.C.G.A. § 34-9-262) was the later, and therefore the final, award. Neal v. Insurance Co. of N. Am., 134 Ga. App. 854, 216 S.E.2d 626 (1975).

- Neither the estimate of the witnesses nor the conclusion of the director as to the time in the future to which the disability may extend affects the compensation payable. Brazier v. United States Fid. & Guar. Co., 99 Ga. App. 588, 109 S.E.2d 309 (1959).

- If an employee was injured in 1926 and received full compensation for total disability until February, 1927, and until May, 1927, partial compensation due to a change in condition, the employee's application for additional compensation in October, 1935, could not authorize a finding of continuous disability since October, 1934, since under the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) the employee's maximum period of compensation was exhausted prior to that date. Travelers Ins. Co. v. Anderson, 185 Ga. 105, 194 S.E. 193 (1937).

- If an employee was injured during the course of employment, returned to the job to perform light-duty work, and was then discharged for a cause unrelated to the employee's injury, the employee was entitled to receive temporary partial disability benefits for the period that the employee engaged in light-duty work following the accident, if the employee produced evidence to show that the employee earned less after the employee's return to work than the employee did before injury. Augusta Coca-Cola Bottling Co. v. Carter, 172 Ga. App. 195, 322 S.E.2d 365 (1984).

Definitions

"Average weekly wages."

- Term "average weekly wages" had same meaning as definition of term in former Code 1933, § 114-402 (see now O.C.G.A. § 34-9-260). Lumbermen's Mut. Cas. Co. v. Cowart, 81 Ga. App. 423, 59 S.E.2d 15 (1950).

- When the injury came within former Code 1933, § 114-404 or § 114-405 (see now O.C.G.A. § 34-9-261 or O.C.G.A. § 34-9-262), "change in condition" meant 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. Morrison Assurance Co. v. Hodges, 130 Ga. App. 436, 203 S.E.2d 629 (1973).

- Word "disability," as used in the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.), means impairment of earning capacity. Blue Bell Globe Mfg. Co. v. Baird, 61 Ga. App. 298, 6 S.E.2d 83 (1939).

The loss of earning power is the basis for an allowance of compensation. Incapacity has been said to exist by reason of the inability to procure employment, as well as the incapacity to perform the service. Compensation under the workers' compensation provisions depends on diminution of earning capacity. The word "disability," as used in the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.), means impairment of earning capacity. Lumbermens Mut. Cas. Co. v. Cook, 69 Ga. App. 131, 25 S.E.2d 67 (1943).

"Disability," within the meaning of this section, meant an incapacity for work, or earning capacity. The question of what constitutes incapacity for work is one of fact. Riegel Textile Corp. v. Vinyard, 88 Ga. App. 753, 77 S.E.2d 760 (1953).

Under former Code 1933, §§ 114-404 and 114-405 (see now O.C.G.A. §§ 34-9-261 and34-9-262), "disability" meant not the percentage of physical impairment, but the percentage of impairment of earning capacity. Employers Liab. Assurance Corp. v. Hollifield, 93 Ga. App. 51, 90 S.E.2d 681 (1955); Hall v. Saint Paul-Mercury Indem. Co., 96 Ga. App. 567, 101 S.E.2d 94 (1957).

Care should be taken in construing the word "disability," which in former Code 1933, § 114-406 (see now O.C.G.A. § 34-9-263) was specifically measured by the specific physical impairment, when in former Code 1933, § 114-404 (see now O.C.G.A. § 34-9-261) and former Code 1933, § 114-406 (see now O.C.G.A. § 34-9-262), it was measured by the decreased economic return resulting from a general physical impairment. Brazier v. United States Fid. & Guar. Co., 99 Ga. App. 588, 109 S.E.2d 309 (1959).

Total disability is the antithesis of partial disability. Travelers' Ins. Co. v. Hurt, 176 Ga. 153, 167 S.E. 175 (1932).

- The nature and extent of the disability resulting from the injury received is not dependent upon the employee's ability to find employment. Travelers' Ins. Co. v. Hurt, 176 Ga. 153, 167 S.E. 175 (1932).

- When the evidence demands a finding that the employee is not by reason of the employee's physical impairment totally disabled from engaging in remunerative employment, compensation should be based on former Code 1933, § 114-405 (see now O.C.G.A. § 34-9-262) for permanent partial disability, rather than on former Code 1933, § 114-404 (see now O.C.G.A. § 34-9-261) for total disability. GMC v. Harrison, 107 Ga. App. 667, 131 S.E.2d 234 (1963).

- If the employee, while physically able to perform remunerative labor at an occupation different from that in which the employee was injured, fails to accept employment suitable to such impaired condition when it is offered the employee, or does not obtain such employment by reason of the employee's unwillingness so to do, or by reason of economic or other conditions in no way chargeable to or occasioned by the employee's injury, the employee is not to be considered as totally disabled, and the amount of compensation payable to the employee is limited to two-thirds of the difference between the employee's average weekly wages before the injury, and the average weekly wages which the employee is capacitated to earn thereafter. General Accident Fire & Life Assurance Corp. v. McDaniel, 44 Ga. App. 40, 160 S.E. 554 (1931).

When there was no evidence that the plaintiff's condition worsened after the plaintiff's job terminated at the close of the season so that the plaintiff could not resume the plaintiff's former or similar employment, the plaintiff was entitled only to an award for partial disability under this section. City of Augusta v. Rosier, 119 Ga. App. 192, 166 S.E.2d 378 (1969).

- Administrative law judge (ALJ) should have considered a claimant's entitlement to temporary partial disability benefits in a case when the claimant was fired from the job at which the disabling injury was incurred and, after a diligent job search, the claimant took a lesser paying job as a waitress for a continuing disability incident to the compensable one; the ALJ improperly imposed an additional burden of proof on the claimant by requiring the claimant to prove that the acceptance of lower-paying employment was proximately caused by the compensable work-related injury. Roberts v. Jones Co., 277 Ga. App. 517, 627 S.E.2d 139 (2006).

- In order for disability to be accounted total, the inability of an employee to procure and to perform work at a different occupation suitable to the employee's impaired physical condition must not be due merely to a lack of diligent effort on the part of the employee to obtain such other employment, or to the employee's unwillingness to accept such different employment, or to conditions of general unemployment which are disconnected with the employee's injury, such as might render the employee unable to find any such different employment. General Accident Fire & Life Assurance Corp. v. McDaniel, 44 Ga. App. 40, 160 S.E. 554 (1931).

- The incapacity for work resulting from injury is total not only so long as the injured employee is unable to do any work of any character, but also while the employee remains unable, as a result of injury, either to resume the employee's former occupation or to procure remunerative employment at a different occupation suitable to the employee's impaired capacity. Employers Liab. Assurance Corp. v. Hollifield, 93 Ga. App. 51, 90 S.E.2d 681 (1955).

The incapacity is total so long as the injured employee, by reason of and on account of the employee's injury, is unable to do any work of any character, and so long as the employee remains, for such reason, unable either to resume the employee's former occupation or to procure any other sort of remunerative employment suitable to the employee's impaired physical condition. City of Augusta v. Rosier, 119 Ga. App. 192, 166 S.E.2d 378 (1969).

- When a claimant has a period of unemployment resulting from the injury and due to no fault of the claimant, the claimant should be awarded compensation for total disability during this period. Reeves v. Echota Cotton Mills, 123 Ga. App. 649, 182 S.E.2d 126 (1971).

Period of total incapacity may be, and usually is, followed by period of partial incapacity, during which the injured employee is able both to procure and to perform work at some occupation suitable to the employee's then existing capacity but less remunerative than the work in which the employee was engaged at the time of injury. That situation determines the period of the employee's partial incapacity. Lumbermens Mut. Cas. Co. v. Cook, 69 Ga. App. 131, 25 S.E.2d 67 (1943).

- State board of workers' compensation's refusal to consider the reasons for the employee's lost time from work was based on an erroneous legal theory and had the effect of reducing the substantive rights of the employer under O.C.G.A. § 34-9-262. Shaw Indus. v. Shaw, 262 Ga. App. 586, 586 S.E.2d 80 (2003).

- If the claimant applied for an increase in compensation on account of an alleged change in conditions, and if it appeared, without dispute, that the claimant had been engaged in remunerative labor up to a few days before the application, and had lost the claimant's position because of the closing down of the plant in which the claimant was employed, and not by reason of the claimant's previous injury, this finding did not authorize an award of compensation as for total disability. General Accident Fire & Life Assurance Corp. v. McDaniel, 44 Ga. App. 40, 160 S.E. 554 (1931).

Awards for partial incapacity, under this section, were payable only during such incapacity. Hartford Accident & Indem. Co. v. Fuller, 102 Ga. App. 384, 116 S.E.2d 628 (1960).

Partial incapacity terminates when the employee again becomes capable of earning the same wage the employee earned before injury, whether at the same or at a different occupation, and without regard to such personal inconveniences as may result to the employee solely from the employee's injury. Columbia Cas. Co. v. Whiten, 51 Ga. App. 42, 179 S.E. 630 (1935).

Except as specifically provided in former Code 1933, § 114-406 (see now O.C.G.A. § 34-9-263) partial incapacity terminated when the employee again became capable of earning the same wage the employee earned before injury, whether at the same or at a different occupation, and without regard to such personal inconveniences as may result to the employee solely from the employee's injury, and which are not caused or aggravated by the employee's new employment. Castle v. Imperial Laundry & Dry Cleaning Co., 62 Ga. App. 184, 8 S.E.2d 547 (1940); Lumbermens Mut. Cas. Co. v. Cook, 69 Ga. App. 131, 25 S.E.2d 67 (1943).

- Claimant for resumption of temporary partial disability benefits, who had been terminated from a salesperson's position and who had not sought other employment after termination, failed to prove a change in condition entitling the salesperson to a resumption of benefits. Whether the cause of termination was due to any compensable disability was not determinative; the burden was on the claimant to show that claimant's inability to secure suitable employment elsewhere was proximately caused by the claimant's previous accidental injury. Gilbert/Robinson, Inc. v. Meyers, 214 Ga. App. 510, 448 S.E.2d 246 (1994).

- In determining what a claimant was "able" to earn, it was error to conclude that claimant was "able" to earn $0 simply because claimant was not working; when a claimant is able to earn, but is not earning, the employer may reasonably theorize, based upon proof of available jobs for which the claimant is qualified, what the claimant is able to earn. Mountainside Medical Center/Pickens Healthcare v. Tanner, 225 Ga. App. 722, 484 S.E.2d 706 (1997).

Permanency

Award res judicata until change of condition.

- As to former Code 1933, §§ 114-404 and 114-405 (see now O.C.G.A. §§ 34-9-261 and34-9-262), when no mention of the word "permanent" was made, the question of whether maximum improvement had been reached at the time of the hearing had no effect on the award at that time; the award went into effect and was res judicata until the condition changed and a new agreement, or a request for a hearing based on a change of condition, was made. Brazier v. United States Fid. & Guar. Co., 99 Ga. App. 588, 109 S.E.2d 309 (1959).

Impairment of Earning Capacity

Provisions provide for different bases for compensation.

- Former Code 1933, §§ 114-404 and 114-405 (see now O.C.G.A. §§ 34-9-261 and34-9-262) provided for compensation on the basis of a decrease in earnings; former Code 1933, § 114-406 (see now O.C.G.A. § 34-9-263) provided compensation for the loss, or loss of use, of a member, irrespective of the earning ability of a claimant after an accident was sustained. Roddy v. Hartford Accident & Indem. Co., 65 Ga. App. 632, 16 S.E.2d 81 (1941).

- If claimant is suffering physical impairment resulting from an injury claimant is not entitled to compensation for loss of use of any member, but is entitled to compensation for whatever loss of earning capacity claimant has sustained as a permanent result of the accident. Employers Liab. Assurance Corp. v. Hollifield, 93 Ga. App. 51, 90 S.E.2d 681 (1955).

Recovery under both §§ 34-9-262 and 34-9-263. - Former Code 1933, § 114-406 (see now O.C.G.A. § 34-9-263) provided that the compensation to be paid for the injury shall be in lieu of all other compensation. If the employee can recover compensation for such an injury under both former Code 1933, §§ 114-405 and 114-406 (see now O.C.G.A. §§ 34-9-262 and 34-9-263), then the employee's compensation under the latter is not in lieu of all other compensation. Massey v. Aetna Cas. & Sur. Co., 86 Ga. App. 211, 71 S.E.2d 103 (1952).

- With the exception of the specific members dealt with in former Code 1933, § 114-406 (see now O.C.G.A. § 34-9-263), the amount of compensation which an employee was entitled to receive for an injury is determined by the employee's diminished earning capacity as provided in former Code 1933, §§ 11-404 and 11-405 (see now O.C.G.A. §§ 34-9-261 and34-9-262). Therefore, if any injury to the employee, by an accident arising out of and in the course of employment, either totally or partially, impairs the employee's earning capacity, such injury was compensable. Blue Bell Globe Mfg. Co. v. Baird, 61 Ga. App. 298, 6 S.E.2d 83 (1939).

Physical disability not specified in former Code 1933, § 114-406 (see now O.C.G.A. § 34-9-263), resulting in the total or partial loss of earning capacity, was compensable under former Code 1933, §§ 114-404 and 114-405 (see now O.C.G.A. §§ 34-9-261 and34-9-262). United States Cas. Co. v. Young, 104 Ga. App. 373, 121 S.E.2d 680 (1961).

- The incapacity referred to in former Code 1933, §§ 114-404 and 114-405 (see now O.C.G.A. §§ 34-9-261 and34-9-262) was loss of earning capacity due to the injury and not due to the employee's unwillingness to work or to the economic conditions of unemployment. Federated Mut. Implement & Hdwe. Ins. Co. v. Whiddon, 88 Ga. App. 12, 75 S.E.2d 830 (1953).

- It has been held that the disability for which compensation was payable under former Code 1933, §§ 114-404 and 114-405 (see now O.C.G.A. §§ 34-9-261 and34-9-262) was the economic disability which the employee suffered as the result of an injury, this economic disability to be measured solely by the difference in the earning capacity of the employee before and after the injury. Ocean Accident & Guar. Co. v. Hulsey, 105 Ga. App. 479, 125 S.E.2d 115 (1962).

- Extent of disability is not computed on physical disability alone, for a partial physical disability may result in a total loss of earning capacity, nor is it computed alone on what the claimant is actually earning, for the board must determine to the best of its ability the earning capacity, and extent of decrease, if any. Smith v. Liberty Mut. Ins. Co., 117 Ga. App. 308, 160 S.E.2d 535 (1968).

- Only method of computing compensation for a partially disabled claimant is 60 percent (now two-thirds) of the difference between claimant's average weekly wages prior to the injury and the average weekly wages claimant is able to earn thereafter, but not to exceed $20.00 (now $80.00) per week. The only formula for determining this difference is to compare claimant's average weekly wages prior to the injury with wages earned each individual week thereafter until the time of the hearing, because claimant may have earned varying amounts during the period prior to the hearing, and if there are periods of unemployment, through no fault of the claimant, due to the injury, then claimant would be entitled to temporary total disability for this period. Liberty Mut. Ins. Co. v. Goins, 96 Ga. App. 887, 101 S.E.2d 920 (1958).

Only formula for determining the claimant's compensation is to compare claimant's average weekly wages prior to the injury with wages earned each individual week thereafter until the time of the hearing. This is so because claimant may have earned varying amounts during the period prior to the hearing. If there are periods of unemployment, through no fault of the claimant, due to the injury, then claimant would be entitled to temporary total disability for this period. Mauldin v. Georgia Cas. & Sur. Co., 119 Ga. App. 406, 167 S.E.2d 371 (1969).

- When a claimant was given an award for partial incapacity under this section, but no finding or determination was made as to the percentage of the loss of capacity to work or the average weekly wages which the claimant was able to earn thereafter upon which to base the amount of compensation to which the claimant was entitled under the award, it is not an error to refuse to enter a judgment for unpaid compensation thereunder against the employer and insurance carrier. Colbert v. Fireman's Fund Ins. Co., 112 Ga. App. 187, 144 S.E.2d 470 (1965).

Part of an award granting compensation on the bases of partial incapacity is erroneous when 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. St. Paul Fire & Marine Ins. Co. v. Seay, 123 Ga. App. 828, 182 S.E.2d 705 (1971).

- Claimant who, because of claimant's partial disability, was working longer hours at a lesser hourly rate, but who nonetheless had an earning capacity at the time of the hearing in excess of claimant's average weekly wages prior to the original injury, was not entitled by law to any differential compensation under this section. Reeves v. Echota Cotton Mills, 123 Ga. App. 649, 182 S.E.2d 126 (1971).

- Worker experienced change from total disability to temporary partial disability as the worker's ability to run almost all aspects of the worker's production company showed that the worker's prior injury was partial in character and the worker had regained the capacity to perform work, even if the worker was not receiving a net income from the worker's production company as it was the worker's capacity for work, not whether the worker was actually receiving an income, that determined the worker's temporary partial disability status. WAGA-TV, Inc. v. Yang, 256 Ga. App. 224, 568 S.E.2d 58 (2002).

- When the finding of fact of the hearing director, approved by the state board, to the effect that the claimant's average weekly wages were $80.00 prior to the accident, was not authorized by the evidence and the law applicable thereto, but when, the claimant's average weekly wages for the period of 13 weeks immediately prior to the accident were in fact $52.02, and when the finding of fact of the hearing director, approved by the board, was authorized under the evidence, to the effect that the claimant had been able to earn as much as $60.00 per week in claimant's employment since recovering from total disability, there was no compensable loss of earning capacity on account of partial disability under the provisions of this section. Lumbermen's Mut. Cas. Co. v. Cowart, 81 Ga. App. 423, 59 S.E.2d 15 (1950).

- When the hearing director found as a fact that the claimant sustained an injury resulting in a 30 percent disability for performing any regular gainful employment involving stooping or bending, and the record failed to show that claimant was fitted for, was offered, or could have procured, any work other than claimant's previous work which did involve stooping and bending, a finding was authorized and was made by the board that a disability for this type of work existed, and a finding was demanded under the evidence that the disability, if it existed, resulted in a total impairment of earning capacity. Employers Liab. Assurance Corp. v. Hollifield, 93 Ga. App. 51, 90 S.E.2d 681 (1955).

Pain itself is not compensable; disability was not compensable under this section regardless of pain except when there was a decrease in monetary return. Williamson v. Aetna Cas. & Sur. Co., 101 Ga. App. 220, 113 S.E.2d 208 (1960).

With the exceptions indicated in this section, the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) failed to provide for compensation in cases of partial incapacity, except when the average weekly wages after the injury were less than those prior thereto. There was no recognition of the elements of pain and suffering, or of the increased discomfort and difficulty in performing the labors for which wages were paid after the injury, and as long as the average of these remain the same or more than those previously received, the law allowed no compensation. American Mut. Liab. Ins. Co. v. Hampton, 33 Ga. App. 476, 127 S.E. 155 (1925).

Disability was not compensable under former Code 1933, §§ 11-404 and 11-405 (see now O.C.G.A. §§ 34-9-261 and34-9-262) regardless of pain except when there was a decrease in monetary return. Davis v. Fireman's Fund Ins. Co., 106 Ga. App. 519, 127 S.E.2d 481 (1962).

- Income received by the employee from outside sources and in no way attributable to the employee's earning capacity is not to be taken into account in fixing the amount of compensation for the period of disability which the employee suffers. Ocean Accident & Guar. Co. v. Hulsey, 105 Ga. App. 479, 125 S.E.2d 115 (1962).

- When, on the application of the claimant, the board makes an award finding a change in the claimant's condition from an industrial handicap, as provided for in former Code 1933, § 114-406 (see now O.C.G.A. § 34-9-263), to a partial incapacity to work, as provided by former Code 1933, § 114-405 (see now O.C.G.A. § 34-9-262), the board was authorized to order compensation paid under that section during the partial incapacity, even though the benefits previously awarded under former Code 1933, § 114-406 had been paid in a lump-sum settlement, and the period therefor represented had not expired; and the board properly deducted from the maximum period allowed for the partial disability the period during which the claimant was paid for total incapacity, and the time during which claimant had no incapacity, as found by the board, and the interval for which claimant was paid the lump-sum settlement on account of the industrial handicap under former Code 1933, § 114-406. Hardware Mut. Cas. Co. v. Wilson, 72 Ga. App. 574, 34 S.E.2d 634 (1945).

- When there was an adjudication of a change of condition the board may, as provided in this section, order a different payment of compensation suited to the change, and the order became effective from the time an application for a hearing based upon a change in condition was filed. Bump v. Continental Cas. Co., 109 Ga. App. 228, 136 S.E.2d 14 (1964).

- Superior court properly remanded an employee's workers' compensation case to the Workers' Compensation Board's Appellate Division to consider whether the employee had pre-existing cognitive dysfunctions that were worsened by the employee's work until the conditions became disabling because in its failure to do so the Appellate Division made an error of law; regardless of whether the employee suffered a work-related head injury, if the employee's employment aggravated a pre-existing condition to the point when the employee could no longer work, the employee was entitled to workers' compensation benefits. Home Depot v. McCreary, 306 Ga. App. 805, 703 S.E.2d 392 (2010).

- When there is a change of condition, an employer and insurance carrier are entitled to credit for any advance payments of compensation made prior to the filing of the application for the change of condition hearing in excess of the amount due the claimant under the original award. Ingram v. Bituminous Cas. Corp., 109 Ga. App. 87, 134 S.E.2d 861 (1964).

- It was error to shift payments from total disability under former Code 1933, § 114-404 (see now O.C.G.A. § 34-9-261) to partial disability under former Code 1933, § 114-405 (see now O.C.G.A. § 34-9-262), when there had been no finding or determination made as to the weekly wages which the claimant was able to earn upon which an intelligent calculation can be made of the compensation to be paid, even though the evidence on change of condition showed an amelioration of the employee's condition and that the employee was no longer totally disabled. Hardeman v. Liberty Mut. Ins. Co., 124 Ga. App. 710, 185 S.E.2d 789 (1971).

- Average weekly wage stipulated in an approved agreement for compensation for total incapacity to work is res judicata, which precludes the employer from contradicting or challenging the average weekly payments at a further change of condition hearing. Reeves v. Echota Cotton Mills, 123 Ga. App. 649, 182 S.E.2d 126 (1971).

- After more than 300 (now 350) weeks elapsed between the date of the injury and the date of request for another hearing, the evidence demanded a finding that the right to compensation ceased. Strickland v. Metropolitan Cas. Ins. Co., 54 Ga. App. 866, 189 S.E. 424 (1936).

OPINIONS OF THE ATTORNEY GENERAL

Injured employee receiving additional benefits not ineligible for total incapacity rating.

- The fact that an injured employee was receiving additional benefits would not make the employee ineligible for a total incapacity rating under former Code 1933, § 114-404 (see now O.C.G.A. § 34-9-261), and switch the employee to eligibility for partial disability under former Code 1933, § 114-405 (see now O.C.G.A. § 34-9-262), since partial incapacity was determined by the difference between the wages which an employee earns before injury and which the employee was able to earn thereafter. 1971 Op. Att'y Gen. No. 71-136.

RESEARCH REFERENCES

ALR.

- Right to take rise or fall in wages since date of accident into account in fixing workman's compensation, 2 A.L.R. 1642; 92 A.L.R. 1188.

Workmen's compensation: right of employer or insurance carrier to discontinue, without an order or ruling in that regard, payments provided for by agreement, 129 A.L.R. 418.

Compensability of specially equipped van or vehicle under workers' compensation statutes, 63 A.L.R.5th 163.