Carpenter v. NEWCOMB DEVILBISS COMPANY

111 Ga. App. 472 (1965)

142 S.E.2d 381

CARPENTER, Administrator v. NEWCOMB DEVILBISS COMPANY et al.

41067.

Court of Appeals of Georgia.

Decided March 4, 1965.

Rehearing Denied March 23 And April 1, 1965.

Robert S. Whitelaw, for plaintiff in error.

Smith, Ringel, Martin, Ansley & Carr, Hoke Smith, contra.

PANNELL, Judge.

1. Where, under the Workmen's Compensation Act, an injured employee has obtained an award of weekly compensation, and the employer or insurance carrier ceases making the payments provided for, the employee may present a certified copy of the award to the superior court of the county in which the injury occurred, or if the injury occurred without this State, then to the superior court of the county in which the original hearing was had, "whereupon said court shall render judgment in accordance therewith, . . ." Code § 114-711; Savannah Lumber Co. v. Burch, 165 Ga. 706 (142 SE 83).

2. In such a proceeding there cannot lawfully be set off against the unpaid installments of the award the amount paid in settlement of a judgment obtained by the employee against a third party because of a claim of subrogation under the provisions of Code § 114-403 prior to the amendment of 1963 (Ga. L. 1963, pp. 141, 145). This section does not provide for the notice of, or for a hearing on, the proceedings in the superior court. Taylor v. Woodall, 183 Ga. 122, 125 (187 SE 697). If the insurer is entitled to credits on the award because of subrogation under Code § 114-403 prior to the amendment of 1963, the remedy lies under Code § 114-715 before the State Board of Workmen's Compensation *473 and upon the change in the award, if any there be, the superior court shall revoke or modify the judgment to conform to such decision of the Board (Code § 114-711), or the insurer may proceed by affidavit of illegality upon levy of the execution based on the judgment. See Complete Auto Transit Inc. v. Davis, 106 Ga. App. 369, 371 (2) (126 SE2d 909).

3. Accordingly, it was error for the judge of the superior court to refuse to enter judgment on the certified copy of the award presented.

Judgment reversed. Nichols, P. J., and Eberhardt, J., concur.