2020 Georgia Code
Title 34 - Labor and Industrial Relations
Chapter 9 - Workers' Compensation
Article 6 - Payment of Compensation
Part 3 - Limitations on Payment
§ 34-9-241. Effect of Subsequent Injury on Compensation

1. Limitation on simultaneous compensation. If an employee received an injury for which income benefits are payable while still entitled to or receiving income benefits for a previous injury, the employee shall not be entitled to income benefits at the same time for both injuries unless because of the later injury the employee is entitled to income benefits for a permanent partial disability under Code Section 34-9-263; but the employee shall be entitled to income benefits for that injury and from the time of that injury which will cover the longest period and the largest amount of income benefits payable. Compensation for other than income benefits shall be apportioned upon a determination of whether the need for such is attributable to the first or second injury.
2. Limitation on compensation for permanent partial disability. If an employee received an injury for which income benefits are payable under Code Section 34-9-263 and has a preexisting bodily loss or loss of use as described under Code Section 34-9-263 which was increased by reason of the injury, the employee shall be entitled to income benefits under Code Section 34-9-263 only for the loss or loss of use as increased by the injury. This limitation, however, shall not prevent the employee from continuing to receive income benefits for the preexisting loss or loss of use to which the employee is otherwise entitled under Code Section 34-9-263.
3. Total disability by subsequent injury.
   1. An employee who has a prior disability as described in Article 9 of this chapter and who sustains a subsequent injury which combines with the prior injury to produce total disability shall be entitled to income benefits as provided in Code Section 34-9-261. The loss of both hands, feet, arms, legs, or the loss of any two of them or the total loss of vision of both eyes shall be presumed to be total disability, subject to rebuttal.
   2. An employer who makes payment under this subsection shall be entitled to reimbursement as determined under Article 9 of this chapter.

(Ga. L. 1920, p. 167, § 34; Code 1933, § 114-408; Ga. L. 1978, p. 2220, § 6.)

- For note discussing compensation under the Georgia Workers' Compensation Act of original injuries aggravated by subsequent injury, continued employment or ordinary activity, see 31 Mercer L. Rev. 325 (1979).

JUDICIAL DECISIONS

Legislative intent.

- It was not the intention of the legislature by enacting this section to provide a means by which an employee might collect compensation just as if the employee had never been injured or a previous disability had never existed, and thereby receive compensation just as if the prior injury had never been sustained. Georgia Ins. Serv. v. Lord, 83 Ga. App. 28, 62 S.E.2d 402 (1950).

This section showed a legislative intent to subject an employer to liability only for an accident, misfortune, or injury during the time of service or employment. Argonaut Ins. Co. v. Wilson, 119 Ga. App. 121, 166 S.E.2d 641 (1969).

Rule for injuries in different employments is set out in this section. Fox v. Hartford Accident & Indem. Co., 130 Ga. App. 104, 202 S.E.2d 568 (1973).

"Earlier disability or injury" referred to was in the terms of this section, a "permanent disability" or injury which the employee had sustained elsewhere. Federated Mut. Implement & Hdwe. Ins. Co. v. Whiddon, 88 Ga. App. 12, 75 S.E.2d 830 (1953).

Former Code 1933, § 114-408 (see now O.C.G.A. § 34-9-241) dealt with second specific member injuries stated in former Code 1933, § 114-406 (see now O.C.G.A. § 34-9-263) and not to injuries to the body as a whole which come within the provisions of the former provisions. Minter Naval Stores v. Bell, 133 Ga. App. 114, 210 S.E.2d 331 (1974).

This section provided if a claimant, prior to claimant's accident arising out of claimant's employment, has suffered a partial permanent loss of use of one of claimant's specific members claimant may only recover workers' compensation benefit for that portion of the permanent loss of use of the specific member which resulted from the employment connected injury. The compensation benefits for an injury to the body as a whole are determined by the claimant's loss of earning capacity and not the percent of physical disability. Minter Naval Stores v. Bell, 133 Ga. App. 114, 210 S.E.2d 331 (1974).

Former Code 1933, § 114-408 (see now O.C.G.A. § 34-9-241) applied to prior injuries which were not specified handicaps under former Code 1933, § 114-406 (see now O.C.G.A. § 34-9-263). Hunt v. State, 133 Ga. App. 548, 211 S.E.2d 601 (1974).

- Apportionment of permanent partial disability benefits is required by O.C.G.A. § 34-9-241 when a claimant has a preexisting degeneration infirmity described in O.C.G.A. § 34-9-263; thus, denial of benefits was authorized when medical records showed that claimant had a preexisting hearing loss and claimant failed to show the percentage of disability, if any, attributable to claimant's compensable injury. Metro Interiors, Inc. v. Cox, 218 Ga. App. 396, 461 S.E.2d 570 (1995).

This section did not apply to determine whether an injury was entirely separate or an aggravation of a previous injury on a claim brought on a second injury by an employee in the same employment. Argonaut Ins. Co. v. Wilson, 119 Ga. App. 121, 166 S.E.2d 641 (1969).

If an employee has sustained two permanent injuries superimposed one upon the other, and the injuries have been sustained in different employments, in determining the extent of the employee's disability attributable to the injury received during the employee's last (current) employment, the board should first determine the total disability found to exist after the last injury, determine the disability found to exist after the earlier injury sustained elsewhere and subtract the latter from the former, thereby arriving at the extent of disability to be attributed to the last injury and compensated by the last employer. Dunn v. Hartford Accident & Indem. Co., 81 Ga. App. 283, 58 S.E.2d 245 (1950), overruled on other grounds, Lee Connell Constr. Co. v. Swann, 172 Ga. App. 305, 322 S.E.2d 736 (1984); Barry v. Aetna Life & Cas. Co., 133 Ga. App. 527, 211 S.E.2d 595 (1974).

- No matter how many times a specific member is injured, the claimant cannot recover a total of more than 100 percent disability, nor charge the employer with a greater percentage of disability than that attributable to the injury for which an award is sought. Georgia Cas. & Sur. Co. v. Speller, 122 Ga. App. 459, 177 S.E.2d 491 (1970).

- When claimant insisted that claimant experienced no trouble with claimant's wrist during the time between the initial fracture and the later injury, and a physician, who estimated that claimant had a 12 percent disability of the left arm, testified, "I would think he probably had some symptoms, I don't think that you could attribute more than half of his figured disability or impairment to the operation of the air gun," this was evidence of disability resulting from the prior injury which, if relied upon by the board, would have authorized an award only for a second injury under this section. GMC v. Hargis, 114 Ga. App. 143, 150 S.E.2d 303 (1966).

Cited in Wisham v. Employers Liab. Assurance Corp., 55 Ga. App. 778, 191 S.E. 489 (1937); Miller v. Independent Life & Accident Ins. Co., 86 Ga. App. 538, 71 S.E.2d 705 (1952); Maryland Cas. Co. v. Smith, 122 Ga. App. 262, 176 S.E.2d 666 (1970); Liberty Mut. Ins. Co. v. Williams, 129 Ga. App. 354, 199 S.E.2d 673 (1973); Reliance Ins. Co. v. Cushing, 132 Ga. App. 179, 207 S.E.2d 664 (1974).

RESEARCH REFERENCES

ALR.

- Workmen's compensation: injury or death to which preexisting physical condition of employee causes or contributes, 19 A.L.R. 95; 28 A.L.R. 204; 60 A.L.R. 1299.

Workmen's compensation: aggravation by particular condition or equipment of plant of injury which in its inception was not connected with the employment, 37 A.L.R. 771.

Extraterritorial operation of Workmen's Compensation Acts; conflict of laws, 59 A.L.R. 735, 82 A.L.R. 709; 90 A.L.R. 119.

Workmen's compensation: construction and effect of provisions in relation to new or new and further disability, 72 A.L.R. 1125.

Workmen's compensation: computation of compensation as affected by compensation allowed for previous injury, 96 A.L.R. 1080.

Workmen's Compensation Act as affecting liability of or remedy against employer for injury due to medical or surgical treatment of employee after injury, 127 A.L.R. 1108.

Workers' compensation: compensability of injuries incurred traveling to or from medical treatment of earlier compensable injury, 83 A.L.R.4th 110.

Construction and application of state workers' compensation laws to claim for hearing loss - resulting from single traumatic accident or event, 90 A.L.R.6th 425.