2020 Georgia Code
Title 34 - Labor and Industrial Relations
Chapter 9 - Workers' Compensation
Article 7 - Compensation Schedules
§ 34-9-261. Compensation for Total Disability

While the disability to work resulting from an injury is temporarily total, the employer shall pay or cause to be paid to the employee a weekly benefit equal to two-thirds of the employee's average weekly wage but not more than $675.00 per week nor less than $50.00 per week, except that when the weekly wage is below $50.00, the employer shall pay a weekly benefit equal to the average weekly wage. The weekly benefit under this Code section shall be payable for a maximum period of 400 weeks from the date of injury; provided, however, that in the event of a catastrophic injury as defined in subsection (g) of Code Section 34-9-200.1, the weekly benefit under this Code section shall be paid until such time as the employee undergoes a change in condition for the better as provided in paragraph (1) of subsection (a) of Code Section 34-9-104.

(Ga. L. 1920, p. 167, § 30; Ga. L. 1922, p. 185, § 3; Ga. L. 1923, p. 92, § 3; Code 1933, § 114-404; Ga. L. 1937, p. 528; Ga. L. 1949, p. 1357, § 1; Ga. L. 1955, p. 210, § 1; Ga. L. 1963, p. 141, § 5; Ga. L. 1968, p. 3, § 1; Ga. L. 1973, p. 232, § 3; Ga. L. 1974, p. 1143, § 3; Ga. L. 1975, p. 190, § 4; Ga. L. 1978, p. 2220, § 3; Ga. L. 1981, p. 842, § 2.1; Ga. L. 1982, p. 2485, §§ 1, 7; Ga. L. 1985, p. 727, § 8; Ga. L. 1990, p. 1409, § 14; Ga. L. 1992, p. 1942, § 21; Ga. L. 1994, p. 887, § 14; Ga. L. 1996, p. 1291, § 11; Ga. L. 1997, p. 1367, § 8; Ga. L. 1999, p. 817, § 7; Ga. L. 2000, p. 1321, § 6; Ga. L. 2001, p. 748, § 6; Ga. L. 2003, p. 364, § 6; Ga. L. 2005, p. 1210, § 7/HB 327; Ga. L. 2007, p. 616, § 6/HB 424; Ga. L. 2013, p. 651, § 5/HB 154; Ga. L. 2015, p. 1079, § 3/HB 412; Ga. L. 2016, p. 287, § 3/HB 818; Ga. L. 2019, p. 798, § 4/SB 135.)

The 2015 amendment, effective July 1, 2015, substituted "$550.00" for "$525.00" in the middle of the first sentence.

The 2016 amendment, effective July 1, 2016, substituted "$575.00" for "$550.00" in the first sentence of this Code section.

The 2019 amendment, effective July 1, 2019, substituted "$675.00" for "$575.00" in the first sentence.

- For article surveying developments in Georgia workers' compensation law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 323 (1981). For annual survey of workers' compensation, see 38 Mercer L. Rev. 431 (1986). 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 annual survey of law on workers' compensation, see 62 Mercer L. Rev. 383 (2010). 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). For note on the 1994 amendments of Code Sections34-9-261 and34-9-262 of this article, see 11 Ga. St. U.L. Rev. 204 (1994). For comment criticizing Hartford Accident & Indem. Co. v. Braswell, 85 Ga. App. 487, 69 S.E.2d 385 (1952), see 4 Mercer L. Rev. 215 (1952). For comment on Hartford Accident & Indem. Co. v. Braswell, 85 Ga. App. 487, 69 S.E.2d 385 (1952), see 15 Ga. B. J. 229 (1952). For comment on Bethlehem Steel Co. v. Dempsey, 94 Ga. App. 408, 94 S.E.2d 749 (1956), see 20 Ga. B. J. 267 (1957). For comment discussing constitutional amendment to establish a subsequent injury fund under workers' compensation, see 13 Ga. St. B. J. 50 (1976).

ANALYSIS

• General Consideration
• Total Disability
• Temporary Partial Disability
• Permanent Partial Disability

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, annotations decided under Ga. L. 1937, p. 806, and former versions of Code 1933, §§ 114-404, 114-405, 114-406, and 114-408, 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).

- Except in cases involving the loss of or loss of use of a member, the workers' compensation provisions do not contemplate the payment of compensation to an employee except in cases of actual total or partial disability. Pacific Employers Ins. Co. v. Shoemake, 105 Ga. App. 432, 124 S.E.2d 653 (1962).

- 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).

- O.C.G.A. § 34-9-200.1 permits the Workers' Compensation Board to require the employer to provide handicap-accessible housing to an injured employee. Pringle v. Mayor of Savannah, 223 Ga. App. 751, 478 S.E.2d 139 (1996).

- 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).

Appellate Division of the State Board of Workers' Compensation properly denied an employee's request for catastrophic injury payments under O.C.G.A. § 34-9-261 because the employee did not experience a "change in condition" within the limitations period under O.C.G.A. § 34-9-104(b) for purposes of additional disability income benefits. Williams v. Conagra Poultry of Athens, Inc., 295 Ga. App. 744, 673 S.E.2d 105 (2009), cert. denied, No. S09C0832, 2009 Ga. LEXIS 337 (Ga. 2009).

- 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).

- Driver's claim for catastrophic designation of an injury was time-barred under O.C.G.A. § 34-9-104(b) because, inasmuch as the driver sought additional income benefits, the driver had two years from the date of the last income benefits payment to file the WC-R1CATEE claim form for a catastrophic injury designation, but failed to do so; the driver's earlier filing of a WC-14 form did not toll the statute of limitation because the only benefits sought in the driver's WC-14 form were temporary disability benefits. There was no request for a catastrophic injury designation in the WC-14 form. Kroger Co. v. Wilson, 301 Ga. App. 345, 687 S.E.2d 586 (2009), cert. denied, No. S10C0606, 2010 Ga. LEXIS 341 (Ga. 2010).

- 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 an employer failed to carry its burden of showing that the combination of workers' compensation benefits and a personal injury claim settlement fully and completely compensated an injured person for injuries sustained in a work related auto accident, a trial court's ruling that the employer was not entitled to recover on its subrogation lien for the workers' compensation benefits paid was affirmed. Ga. Elec. Mbrshp. Corp. v. Garnto, 266 Ga. App. 452, 597 S.E.2d 527 (2004).

- Employee's weekly amount of temporary total disability benefits was properly increased to the amount that reflected two-thirds of what was deemed the weekly wage, pursuant to O.C.G.A. § 34-9-261, and the employee failed to show entitlement to more than that amount; accordingly, pursuant to the standard of review of the State Board of Workers' Compensation's appellate division, pursuant to O.C.G.A. § 34-9-103(a), and the substantial evidence standard to be applied on judicial review, the wage amount required affirmance. Dallas v. Flying J, Inc., 279 Ga. App. 786, 632 S.E.2d 389 (2006).

- Superior court erred in reversing the decision of the State Board of Workers' Compensation denying an employee's claim for temporary total disability benefits because the superior court failed to conduct an "any evidence" standard of review; the board did not reach a decision based upon an erroneous legal theory because the board concluded that the employee failed to engage in a diligent job search based upon factors that were within the employee's control. Brown Mech. Contrs., Inc. v. Maughon, 317 Ga. App. 106, 728 S.E.2d 757 (2012).

Cited in McBrayer v. Columbia Cas. Co., 44 Ga. App. 59, 160 S.E. 556 (1931); Whitfield v. American Mut. Liab. Ins. Co., 44 Ga. App. 478, 162 S.E. 297 (1932); Home Accident Ins. Co. v. McNair, 44 Ga. App. 659, 162 S.E. 635 (1932); Keel v. American Employers' Ins. Co., 44 Ga. App. 773, 162 S.E. 847 (1932); Maryland Cas. Co. v. Smith, 45 Ga. App. 82, 163 S.E. 247 (1932); Travelers' Ins. Co. v. Reid, 178 Ga. 399, 173 S.E. 376 (1934); United States Fid. & Guar. Co. v. Edmondson, 50 Ga. App. 157, 177 S.E. 352 (1934); Columbia Cas. Co. v. Whiten, 51 Ga. App. 42, 179 S.E. 630 (1935); Tillman v. Moody, 181 Ga. 530, 182 S.E. 906 (1935); Fralish v. Royal Indem. Co., 53 Ga. App. 557, 186 S.E. 567 (1936); London Guarantee & Accident Co. v. Boynton, 54 Ga. App. 419, 188 S.E. 265 (1936); Liberty Mut. Ins. Co. v. Holloway, 58 Ga. 542, 199 S.E. 334 (1938); Bituminous Cas. Co. v. Dyer, 62 Ga. App. 279, 7 S.E.2d 415 (1940); Castle v. Imperial Laundry & Dry Cleaning Co., 62 Ga. App. 184, 8 S.E.2d 547 (1940); Googe v. United States Fid. & Guar. Co., 63 Ga. App. 678, 11 S.E.2d 803 (1940); Dunn v. American Mut. Liab. Ins. Co., 64 Ga. App. 509, 13 S.E.2d 902 (1941); City of Hapeville v. Preston, 67 Ga. App. 350, 20 S.E.2d 202 (1942); New Amsterdam Cas. Co. v. Davis, 67 Ga. App. 518, 21 S.E.2d 256 (1942); Maryland Cas. Co. v. Morris, 68 Ga. App. 639, 22 S.E.2d 627 (1942); London Guarantee & Accident Co. v. Pittman, 69 Ga. App. 146, 25 S.E.2d 60 (1943); Mays v. Glens Falls Ins. Co., 81 Ga. App. 478, 59 S.E.2d 286 (1950); National Sur. Corp. v. Martin, 86 Ga. App. 77, 71 S.E.2d 666 (1952); Miller v. Hartford Accident & Indem. Co., 86 Ga. App. 503, 71 S.E.2d 782 (1952); Refrigerated Transp. Co. v. Shirley, 93 Ga. App. 334, 92 S.E.2d 26 (1956); Rutland v. Vaughn, 96 Ga. App. 499, 100 S.E.2d 609 (1957); Yates v. United States Rubber Co., 100 Ga. App. 583, 112 S.E.2d 182 (1959); St. Paul Fire & Marine Ins. Co. v. White, 103 Ga. App. 607, 120 S.E.2d 144 (1961); General Accident, Fire & Life Assurance Corp. v. Titus, 104 Ga. App. 85, 121 S.E.2d 196 (1961); Employers Mut. Liab. Ins. Co. v. Carlan, 104 Ga. App. 170, 121 S.E.2d 316 (1961); Travelers Ins. Co. v. Boyer, 105 Ga. App. 830, 126 S.E.2d 280 (1962); Surmiak v. Standard Accident Ins. Co., 106 Ga. App. 479, 127 S.E.2d 334 (1962); Complete Auto Transit, Inc. v. Baggett, 107 Ga. App. 415, 130 S.E.2d 271 (1963); GMC v. Boggs, 109 Ga. App. 839, 137 S.E.2d 569 (1964); Hackel v. Fidelity & Cas. Co., 111 Ga. App. 190, 140 S.E.2d 923 (1965); Pittsburgh Plate Glass Co. v. Bailey, 111 Ga. App. 609, 142 S.E.2d 388 (1965); Travelers Ins. Co. v. Floyd, 114 Ga. App. 487, 151 S.E.2d 816 (1966); Smith v. Liberty Mut. Ins. Co., 114 Ga. App. 755, 152 S.E.2d 782 (1966); Turner v. Travelers Ins. Co., 114 Ga. App. 729, 152 S.E.2d 783 (1966); Noles v. Mills, 116 Ga. App. 560, 158 S.E.2d 261 (1967); McMullen v. Liberty Mut. Ins. Co., 119 Ga. App. 410, 167 S.E.2d 360 (1969); Mauldin v. Georgia Cas. Sur. Co., 119 Ga. App. 406, 167 S.E.2d 371 (1969); 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); National Union Fire Ins. Co. v. Johnston, 122 Ga. App. 332, 177 S.E.2d 125 (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); Employers Mut. Liab. Ins. Co. v. Carter, 125 Ga. App. 407, 188 S.E.2d 146 (1972); Employers Mut. Liab. Ins. Co. v. Turner, 126 Ga. App. 24, 189 S.E.2d 862 (1972); New Hampshire Ins. Co. v. Riddle, 126 Ga. App. 96, 190 S.E.2d 100 (1972); Employers Commercial Union Ins. Co. v. Palmer, 127 Ga. App. 54, 192 S.E.2d 439 (1972); Continental Ins. Cos. v. Johnson, 127 Ga. App. 826, 195 S.E.2d 284 (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); American Mut. Liab. Ins. Co. v. Williams, 133 Ga. App. 257, 211 S.E.2d 193 (1974); West Point Pepperell, Inc. v. Baggett, 139 Ga. App. 813, 229 S.E.2d 666 (1976); Florida Plywood, Inc. v. Boyette, 140 Ga. App. 383, 231 S.E.2d 79 (1976); Emory Univ. v. Cannup, 144 Ga. App. 607, 241 S.E.2d 482 (1978); Argonaut Ins. Co. v. Stephens, 146 Ga. App. 601, 247 S.E.2d 126 (1978); West Point Pepperell v. Green, 148 Ga. App. 625, 252 S.E.2d 55 (1979); Insurance Co. of N. Am. v. Hartl, 149 Ga. App. 859, 256 S.E.2d 153 (1979); Harrison v. Southern Talc Co., 245 Ga. 212, 264 S.E.2d 2 (1980); Hart v. Owens-Illinois, Inc., 161 Ga. App. 831, 289 S.E.2d 544 (1982); Coosa Baking Co. v. Thomas, 165 Ga. App. 313, 299 S.E.2d 145 (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); J & M Transp. Co. v. Crowe, 173 Ga. App. 13, 325 S.E.2d 412 (1984); Price v. Lithonia Lighting Co., 256 Ga. 49, 343 S.E.2d 688 (1986); Howard v. Superior Contractors, 180 Ga. App. 68, 348 S.E.2d 563 (1986); Smith v. Lockheed-Georgia Co., 185 Ga. App. 869, 366 S.E.2d 178 (1988); Collins v. Grafton, Inc., 263 Ga. 441, 435 S.E.2d 37 (1993); Ware County Bd. of Educ. v. Taft, 350 Ga. App. 848, 830 S.E.2d 326 (2019).

Total Disability

1. Scope of Section

Ga. L. 1920, p. 167, § 30 (see now O.C.G.A. § 34-9-261) covered all total capacities, whether permanent or temporary, except total incapacity arising from the loss of one of the members enumerated in Ga. L. 1920, p. 167, § 32 (see now O.C.G.A. § 34-9-263); in such case that section was exclusively applicable. Georgia Cas. Co. v. Jones, 156 Ga. 664, 119 S.E. 721 (1923); Jones v. Georgia Cas. Co., 31 Ga. App. 196, 120 S.E. 558 (1923).

- Injured employee is entitled to receive maximum workers' compensation benefits in the form of income disability benefits until such time as there is a change in the employee's condition. Hensel Phelps Constr. Co. v. Manigault, 167 Ga. App. 599, 307 S.E.2d 79 (1983).

- Employee who suffered a leg amputation following a work accident and who received temporary total disability payments (TTD) until the employee returned to a light duty position in 1994 did not file a claim for the resumption of TTD benefits until 18 years later; the employee's claim was time barred under O.C.G.A. § 34-9-104(b). This was true even if the employee's workplace injury was categorized as catastrophic under O.C.G.A. § 34-9-261 and the employee asserted a right to receive TTD indefinitely. Roseburg Forest Prods. Co. v. Barnes, 299 Ga. 167, 787 S.E.2d 232 (2016).

- Limit referred to in this section was the limit for which compensation may be paid as the result of one injury and not the limit that an employee can draw regardless of the number of injuries the employee may be unfortunate enough to suffer. Bethlehem Steel Co. v. Dempsey, 94 Ga. App. 408, 94 S.E.2d 749 (1956), for comment, see 20 Ga. B.J. 267 (1957).

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).

Superior court erred in affirming the finding of the State Board of Workers' Compensation Appellate Division that a worker had 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).

- 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).

2. Definitions

"Disability" means impairment of earning capacity.

- Loss of earning power is the basis for an allowance of compensation. Incapacity has been said to exist by reason of inability to procure employment, as well as 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).

- If the injury comes 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), a 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).

- Employee's timely filing of a request for catastrophic designation, Form WC-R1CATEE, constituted a timely application for additional temporary total disability (TTD) income benefits under O.C.G.A. § 34-9-104(b), although the form contained no request for additional TTD benefits, because the request would entitle the employee to additional benefits pursuant to O.C.G.A. § 34-9-261. Ga. Inst. of Tech. v. Hunnicutt, 303 Ga. App. 536, 694 S.E.2d 190, cert. denied, No. S10C1299, 2010 Ga. LEXIS 721 (Ga. 2010).

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

Under former Code 1933, § 114-404 or § 114-405 (see now O.C.G.A. §§ 34-9-261 and34-9-262), "disability" meant not percentage of physical impairment but 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).

3. Compensable Injuries

Specific disability related to general disability.

- Compensation may be awarded for a disability resulting from an injury to a specific member of the body as a change in condition from a related general disability stemming from an accident. There may be a change in condition from a specific to a general disability or vice versa, provided, of course, that the claimant's total compensation did not exceed the limit prescribed by this section. GMC, Fisher Body Div. v. Bowman, 107 Ga. App. 335, 130 S.E.2d 163 (1963).

- If there was a causal relationship between claimant's original specific disability under former Code 1933, § 114-709 (see now O.C.G.A. § 34-9-104) and a later general disability, the claimant was entitled to compensation for total incapacity under former Code 1933, § 114-404 (see now O.C.G.A. § 34-9-261), irrespective of the fact that the result of the injury at first amounted merely to a specific disability. Waters v. NABISCO, 113 Ga. App. 170, 147 S.E.2d 676 (1966).

This section did not say in what part of body the injury must be located to produce total incapacity for work. Travelers Ins. Co. v. Reid, 54 Ga. App. 13, 186 S.E. 887 (1936).

- A disability and an injury to claimant's leg alone, although serious and apparently permanent, would not entitle claimant to disability benefits for the maximum period or until a change of condition. Globe Indem. Co. v. Brooks, 84 Ga. App. 687, 67 S.E.2d 176 (1951).

- When an employee suffers an injury involving a specific member which also affects other portions of the body and results in an incapacity to labor, the employee is entitled to compensation for the general disability. Liberty Mut. Ins. Co. v. Hayes, 117 Ga. App. 500, 160 S.E.2d 902 (1968).

- When a person received an injury which was confined solely to the leg and when, because of this injury, an existing diabetic condition was aggravated and there was a relationship between this injury to the leg and the diabetic state, and from such a condition the person was totally disabled, an award for total incapacity to work under this section was proper. American Employers' Ins. Co. v. Haygood, 48 Ga. App. 663, 173 S.E. 377 (1934).

- When the claimant had not been able to return to work, and hence was temporarily totally incapacitated to work, and the extent of claimant's disability could not be determined at that time in order to make a specific member injury award under former Code 1933, § 114-406 (see now O.C.G.A. § 34-9-263), the award was properly based on the provisions of former Code 1933, § 114-404 (see now O.C.G.A. § 34-9-261). Blackwell v. Liberty Mut. Ins. Co., 128 Ga. App. 614, 197 S.E.2d 404 (1973).

- A finding that the disability of the claimant resulted from multiple or superadded injuries and was not confined entirely to a leg injury was authorized by the evidence. Globe Indem. Co. v. Brooks, 84 Ga. App. 687, 67 S.E.2d 176 (1951).

- Psychological disability as a result of injuries received in an accident is compensable. Liberty Mut. Ins. Co. v. Archer, 108 Ga. App. 563, 134 S.E.2d 204 (1963).

- While it is true that pain alone is not compensable, when the pain is so severe that the human mechanism must cease rather than bear the pain, a compensable loss occurs. Bouldware v. Delta Corp., 160 Ga. App. 100, 286 S.E.2d 333 (1981).

- Claimant underwent an operation known as a cross leg flap grafting procedure in which tissue is taken from the healthy leg by raising a flap and suturing it onto the defective area; pins are placed in both legs, and the pins are connected with metal bolts such that both legs are immobilized. When there was uncontradicted evidence of total disability to the right leg for this period, the board erred in finding no disability or incapacity to the leg. Sanders v. Georgia-Pacific Corp., 181 Ga. App. 757, 353 S.E.2d 849 (1987).

- Court did not err in affirming the denial of workers' compensation benefits because the evidence linking stress to the employee's stroke was conflicting; the evidence supported the conclusion that stress - whether job-related or otherwise - did not contribute to the employee's condition. Pitts v. City of Rome, 256 Ga. App. 278, 568 S.E.2d 167 (2002).

4. Total Incapacity for Work

"Total incapacity" defined.

- Incapacity for work resulting from an 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 the employee's 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. Austin Bros. Bridge Co. v. Whitmire, 31 Ga. App. 560, 121 S.E. 345 (1924); Lumbermens Mut. Cas. Co. v. Cook, 69 Ga. App. 131, 25 S.E.2d 67 (1943); United States Fid. & Guar. Co. v. Brazier, 96 Ga. App. 743, 101 S.E.2d 625 (1957), later appeal, 99 Ga. App. 588, 109 S.E.2d 309 (1959); Travelers Ins. Co. v. Boyer, 102 Ga. App. 248, 116 S.E.2d 6 (1960); GMC v. Harrison, 107 Ga. App. 667, 131 S.E.2d 234 (1963).

- One may have a physical disability which was less than 100 percent but which resulted in a total incapacity to work, thus constituting total disability under this section. Brazier v. United States Fid. & Guar. Co., 99 Ga. App. 588, 109 S.E.2d 309 (1959).

Regardless of the percentage of an employee's physical disability, so long as the employee suffers a total impairment of the employee's earning capacity the employee is "totally disabled" and entitled to income compensation benefits under O.C.G.A. § 34-9-261. Hensel Phelps Constr. Co. v. Manigault, 167 Ga. App. 599, 307 S.E.2d 79 (1983); Holt's Bakery v. Hutchinson, 177 Ga. App. 154, 338 S.E.2d 742 (1985).

- It is not the ability to perform the particular job in which one was engaged at the time of injury which is the determining factor, but rather whether the claimant's inability to find any work for which claimant is suited by training and experience is a result of the injury suffered. United States Fid. & Guar. Ins. Co. v. Giles, 177 Ga. App. 684, 340 S.E.2d 284 (1986).

- Superior court did not err in reversing the finding of the State Board of Workers' Compensation that a workers' compensation claimant performed a diligent job search because the claimant gave uncontroverted testimony that the claimant followed the Georgia Department of Labor's instructions during the job search; the appellate division's decision imposed an additional burden upon the claimant with respect to matters that were beyond the claimant's control and inconsistent with the instructions that the claimant was given during the hiring process. R.R. Donnelley v. Ogletree, 312 Ga. App. 475, 718 S.E.2d 825 (2011), cert. denied, No. S12C0480, 2012 Ga. LEXIS 659 (Ga. 2012).

- When an employee has received an injury compensable under the compensation law, but is not thereby rendered totally unable to perform the work for which the employee was employed, but because of such partial incapacity the employee is not employed and is unable to obtain work, the employee has not suffered total incapacity compensable under that law. GMC v. Harrison, 107 Ga. App. 667, 131 S.E.2d 234 (1963).

- Employee was entitled to continue to receive temporary total disability payments for a legitimate job-related injury past the employee's voluntary retirement date, even though the employee stated that the employee no longer intended to work after retirement even if the employee were able to. Thomaston Mills, Inc. v. Kierbow, 185 Ga. App. 57, 363 S.E.2d 276 (1987).

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

Limitations in workers' compensation law are intended to apply only in cases when total incapacity is permanent, and the legislature never intended that an employee should continue to be compensated thereunder after the employee's disability has terminated and the employee has gone back to work. Atlanta Coca Cola Bottling Co. v. Gates, 225 Ga. 824, 171 S.E.2d 723 (1969).

- When the finding that the claimant was "totally incapacitated" was demanded, but a finding that the incapacity was permanent was not demanded, since it appeared from the evidence that there were certain positions that the claimant may have been capable of holding, the superior court erred in reversing the award of the full board, which found only temporary total incapacity. United States Fid. & Guar. Co. v. Brazier, 96 Ga. App. 743, 101 S.E.2d 625 (1957).

- Compensation for total disability is necessarily open-ended according to the terms of O.C.G.A. § 34-9-261, which sets no ceiling on the number of weeks such benefits may be required to be paid. Such an award is, however, subject to modification on the application of either party based on a change in condition. Diers v. House of Hines, Inc., 168 Ga. App. 282, 308 S.E.2d 611 (1983).

6. Determination of Compensation

Dependents' benefits computed by provisions in effect when deceased sustained accident.

- Compensation benefits payable to dependents should be computed by the provisions which were in effect at the time the deceased sustained an accident. Zurich Ins. Co. v. Spence, 122 Ga. App. 464, 177 S.E.2d 503 (1970).

Incapacity referred to in O.C.G.A. § 34-9-261 is loss of earning capacity due to the injury and not due to the employee's unwillingness to work or to economic conditions of unemployment. Scandrett v. Talmadge Farms, Inc., 174 Ga. App. 547, 330 S.E.2d 772 (1985); Dasher v. City of Valdosta, 217 Ga. App. 351, 457 S.E.2d 259 (1995).

Change in the employee's physical condition does not authorize a change in an employee's benefits from temporary total to permanent partial. In order to change an employee's benefits from those already being received under O.C.G.A. § 34-9-261 to those authorized under O.C.G.A. § 34-9-263, it is necessary to show that the employee's earning capacity has changed and that the employee no longer suffers a total impairment of the employee's earning capacity as the result of the employee's work-related injury. Hensel Phelps Constr. Co. v. Manigault, 167 Ga. App. 599, 307 S.E.2d 79 (1983).

- When an award is based on an erroneous legal theory which precludes the consideration of evidence that would authorize a contrary result, it is harmful error. Insurance Co. of N. Am. v. Schwandt, 151 Ga. App. 842, 261 S.E.2d 755 (1979).

- When it appears affirmatively that an award by the board is based upon an erroneous legal theory, and that for this reason the board has not considered all of the evidence in the light of correct and applicable legal principles, the case would be remanded to the board for further findings. Bouldware v. Delta Corp., 160 Ga. App. 100, 286 S.E.2d 333 (1981).

- When there is any evidence to support the conclusion of the administrative law judge of total disability in a workers' compensation proceeding, trial or appellate courts cannot substitute findings of fact. Rains v. Ford Motor Co., 158 Ga. App. 808, 282 S.E.2d 346 (1981).

- When a claimant, under a previous unreversed award, was, as a matter of law, totally incapacitated and entitled to compensation under former Code 1933, § 114-404 (see now O.C.G.A. § 34-9-261), and the employer ceased to make compensation payments, any hearing requested by the claimant was under former Code 1933, § 114-706 (see now O.C.G.A. § 34-9-100), and the burden of showing a "change in condition" was on the employer. Complete Auto Transit, Inc. v. Davis, 101 Ga. App. 849, 115 S.E.2d 482 (1960).

- This section does not provide that a lump-sum settlement is res adjudicata. However, there are many decisions of the appellate courts to the effect that all facts of an agreement or award are res adjudicata except the condition of the claimant. Miller v. Independent Life & Accident Ins. Co., 86 Ga. App. 538, 71 S.E.2d 705 (1952).

Any present adjudication under former Code 1933, § 114-404 (see now O.C.G.A. § 34-9-261) was not res judicata and binding on the parties in case of an alleged change in condition subsequently arising under former Code 1933, § 114-709 (see now O.C.G.A. § 34-9-104). Brazier v. United States Fid. & Guar. Co., 99 Ga. App. 588, 109 S.E.2d 309 (1959).

An approved agreement or an award of the board providing for the payment of compensation on account of total disability is res judicata as to the existence of such disability and the compensation due thereunder, until such time as it is set aside either by an approved final settlement receipt or by a subsequent award finding a change in condition. Pacific Employers Ins. Co. v. Shoemake, 105 Ga. App. 432, 124 S.E.2d 653 (1962).

- For case illustrating applicability of federal wage and hour provisions to determine compensation for disability, see Bituminous Cas. Corp. v. Sapp, 196 Ga. 431, 26 S.E.2d 724, answer conformed to, 69 Ga. App. 669, 26 S.E.2d 726 (1943).

- Medical evidence supported a finding that a worker was temporarily totally disabled because the fact that a form stating the worker was disabled was signed by a physician's assistant did not require exclusion of the form as the standard of proof imposed upon a worker seeking temporary total disability benefits under O.C.G.A. § 34-9-261 did not impose a requirement that the form be signed by a physician. Ready Mix USA, Inc. v. Ross, 314 Ga. App. 775, 726 S.E.2d 90 (2012), cert. denied, No. S12C1202, 2012 Ga. LEXIS 664 (Ga. 2012).

- Appellate Division of the State Board of Workers' Compensation did not err in reversing the administrative law judge's finding that the claimant was entitled to temporary total disability benefits because the primary cause of the claimant's termination was insubordination, and not work-related injuries or limitations, as the record showed that, after the claimant's first claimed injury, the claimant's manager instructed the claimant in writing not to lift anything and to ask other employees for assistance; that the claimant had a meeting with management about not lifting anything heavy while at work to keep the claimant from re-injuring the claimant's back; and that, despite those instructions, the claimant continued to lift heavy items. Burch v. STF Foods, Inc., 353 Ga. App. 172, 836 S.E.2d 573 (2019).

7. Effect of Claimant's Death

Surviving spouse allowed to receive payment for compensation deceased entitled to.

- When a surviving spouse may properly be allowed to continue the prosecution of a claim originally filed by the deceased, and it is shown by the evidence and the law that on the day of death the deceased was entitled to compensation, the surviving spouse is entitled to receive the payment for such an award as the representative of the deceased's estate. Hartford Accident & Indem. Co. v. Braswell, 85 Ga. App. 487, 69 S.E.2d 385 (1952), for comment, see 4 Mercer L. Rev. 215 (1952); 15 Ga. B.J. 229 (1952).

- Practically all workers' compensation awards are contingent upon one or more of many varying conditions. Thus, an award for permanent total disability under this section was contingent upon the continuance of "total incapacity," and if death resulted from causes other than the injury sustained by the worker, the benefits cease. Hartford Accident & Indem. Co. v. Fuller, 102 Ga. App. 384, 116 S.E.2d 628 (1960).

Temporary Partial Disability

1. Scope of Section

If injury not to specific member, compensation determined by § 34-9-261 or § 34-9-262. - If the injury was 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).

- When 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).

- Period of total incapacity may be followed by a 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 the employee's injury; that situation constitutes "partial incapacity." Austin Bros. Bridge Co. v. Whitmire, 31 Ga. App. 560, 121 S.E. 345 (1924).

- While under the provisions of Ga. L. 1937, p. 806 (see now O.C.G.A. § 34-8-158) a worker who was receiving remuneration in the form of compensation for temporary partial disability under the workers' compensation act was disqualified to receive unemployment compensation, there was no prohibition against the receipt by a worker of unemployment compensation for "total disability" within the meaning of the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.). Utica Mut. Ins. Co. v. Pioda, 90 Ga. App. 593, 83 S.E.2d 627 (1954) (decided under Ga. L. 1937, p. 806, as amended, prior to amendment by Ga. L. 1956, pp. 481, 485).

- 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).

- When 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).

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).

2. Incapacity for Work

If employee not rendered totally unable to perform work, compensation for partial, not total, disability.

- If the evidence demanded a finding that the employee was 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 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. City of Augusta v. Rosier, 119 Ga. App. 192, 166 S.E.2d 378 (1969).

- 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).

- 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 the employee's 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).

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 the claimant applied for an increase in compensation on account of an alleged change in conditions, and when 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 employee's position because of the closing down of the plant in which the employee was employed, and not by reason of the employee'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).

- 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 becomes capable of earning the same wage the employee earned before the employee's injury, whether at the same or at a different occupation, and without regard to 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. Austin Bros. Bridge Co. v. Whitmire, 31 Ga. App. 560, 121 S.E. 345 (1924).

- 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).

Use of words "temporary" or "permanent" have no legal significance in determining amount of award in either 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). Brazier v. United States Fid. & Guar. Co., 99 Ga. App. 588, 109 S.E.2d 309 (1959).

Question of whether maximum improvement is reached at time of hearing has no effect on the award at that time; the award goes into effect and is res judicata until the condition changes and a new agreement, or a request for a hearing based on a change of condition is made. Brazier v. United States Fid. & Guar. Co., 99 Ga. App. 588, 109 S.E.2d 309 (1959).

4. Impairment of Earning Capacity

Incapacity is loss of earning capacity due to injury.

- 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).

- Former Code 1933, §§ 114-404 and 114-405 (see now O.C.G.A. §§ 34-9-261 and34-9-262) allowed compensation for any injury by an accident arising out of and in the course of the employment of the injured employee, based on the extent of the impairment of the employee's earning capacity, whether partial or total, caused by the injury. Blue Bell Globe Mfg. Co. v. Baird, 61 Ga. App. 298, 6 S.E.2d 83 (1939).

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

- It has been held that the disability for which compensation is 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 was 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).

- 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 the claimant was fitted for, was offered, or could have procured, any work other than the 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 was 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); 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).

- 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 a 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).

Permanent Partial Disability

1. Specific or General Disability

Section distinguished from § 34-9-263. - The compensation allowable under former Code 1933, § 114-404 (see now O.C.G.A. § 34-9-261) for a total incapacity was distinguished from a disability, such as the loss of a member for which compensation was allowed under former Code 1933, § 114-406 (see now O.C.G.A. § 34-9-263). Bethlehem Steel Co. v. Dempsey, 94 Ga. App. 408, 94 S.E.2d 749 (1956), for comment, see 20 Ga. B.J. 267 (1957).

Former Code 1933, §§ 114-404 and 114-406 (see now O.C.G.A. §§ 34-9-261 and34-9-263) were not mutually exclusive. Employers Mut. Liab. Ins. Co. v. Derwael, 105 Ga. App. 54, 123 S.E.2d 345 (1961).

§ 3 (see now O.C.G.A. § 34-9-263), permanent partial industrial handicaps shall be compensated by payments for periods specified. - The compensation for permanent partial industrial handicaps shall be as specified, and the compensation shall be in lieu of all other compensation. Home Accident Ins. Co. v. McNair, 173 Ga. 566, 161 S.E. 131 (1931), answer conformed to, 44 Ga. App. 659, 162 S.E. 635 (1932).

Former Code 1933, § 114-404 (see now O.C.G.A. § 34-9-261) was inapplicable to any injury included in schedule of specific injuries in former Code 1933, § 114-406 (see now O.C.G.A. § 34-9-263), compensation for which, in the amounts provided therein, was in lieu of any other compensation. New Amsterdam Cas. Co. v. Brown, 81 Ga. App. 790, 60 S.E.2d 245 (1950).

Compensation for specific members determined by § 34-9-263. - When an employee suffers an injury which results in a partial or total disability (industrial handicap) to one member of the employee's body only, the employee is entitled only to compensation for an industrial handicap. Armour & Co. v. Walker, 99 Ga. App. 64, 107 S.E.2d 691 (1959).

When an agreement showed that the claimant's injury was to a specific member, the period for which compensation was payable was determined by former Code 1933, § 114-406 (see now O.C.G.A. § 34-9-263). Nation v. Pacific Employers Ins. Co., 112 Ga. App. 380, 145 S.E.2d 265 (1965).

- When an employee received an injury only to a specific member, as specified in former Code 1933, § 114-406 (see now O.C.G.A. § 34-9-263), and there was no superadded injury or disease affecting other portions of the employee's body, as a result of which the employee becomes totally disabled, the employee's compensation was determined by that section, and the employee was not entitled to receive the compensation for total incapacity to work allowed by former Code 1933, § 114-404 (see now O.C.G.A. § 34-9-261), for other injuries in addition to the specific compensation for total or partial loss of use of the member. London Guarantee & Accident Co. v. Ritchey, 53 Ga. App. 628, 186 S.E. 863 (1936).

A disability resulting from loss or loss of use of a specific member, when there was no superadded injury or disease affecting other portions of the body, should be computed under former Code 1933, § 114-406 (see now O.C.G.A. § 34-9-263), providing schedules of compensation relating to loss of specific members, rather than former Code 1933, § 114-404 (see now O.C.G.A. § 34-9-261), providing for total incapacity to work, and this was true even though the claimant is totally incapacitated at the time. Globe Indem. Co. v. Brooks, 84 Ga. App. 687, 67 S.E.2d 176 (1951).

When an employee suffers an injury to a specific member which causes a superadded incapacity due to some cause produced by the injury to the specific member, resulting in an incapacity to labor, compensation is not so limited. Armour & Co. v. Walker, 99 Ga. App. 64, 107 S.E.2d 691 (1959).

When one sustains a disabling injury to a specific member of the body and thereafter the condition of other parts of the body change because of the accident so that there is a generalized disability, as contrasted with a specific disability to a body member such as an arm or leg, upon an application for compensation based upon such a change in condition from a specific to a general disability, additional compensation may be awarded. GMC, Fisher Body Div. v. Bowman, 107 Ga. App. 335, 130 S.E.2d 163 (1963).

When there is 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 was exclusive of compensation under former Code 1933, §§ 114-404 and 114-405 (see now O.C.G.A. §§ 34-9-261 and34-9-262), unless in consequence of the injury to the member the claimant suffered a superadded injury or disease affecting other portions of claimant's body, as a result of which claimant was either totally or partially disabled to work at gainful employment, in which event compensation was payable under those previous provisions. Clark v. Liberty Mut. Ins. Co., 108 Ga. App. 806, 134 S.E.2d 534 (1963).

Superadded injury or disease is one which occurs to a specific member of the body subsequent to a job-related injury and affects other portions of the body, resulting in the claimant's total disability and, thus, eligibility for compensation under former Code 1933, § 114-404 (see now O.C.G.A. § 34-9-261) for total incapacity to work, rather than under former Code 1933, § 114-406 (see now O.C.G.A. § 34-9-263) relating to specific member injuries. Bond v. Employers Ins. Co., 154 Ga. App. 244, 268 S.E.2d 354 (1980).

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. Minter Naval Stores v. Bell, 133 Ga. App. 114, 210 S.E.2d 331 (1974) (decided under former Code 1933, § 114-408, prior to revision by Ga. L. 1978, p. 2220, § 6).

- Although employee had applied for temporary total disability, the administrative law judge awarded permanent partial disability, which was in error and properly reversed, as the employer was not given notice that the employee was seeking permanent partial disability benefits. Holliday v. Jacky Jones Lincoln Mercury, 251 Ga. App. 493, 554 S.E.2d 286 (2001).

2. Compensable Injuries

Related injuries from identical accident compensable.

- Two related injuries, such as an injury to the back which first became disabling, and an injury to the leg, which stems from the back injury but was not disabling at first, may properly be held to result from the identical accident and may be compensated for, even though the disability from both does not develop, arise, or become known at the same time. GMC, Fisher Body Div. v. Bowman, 107 Ga. App. 335, 130 S.E.2d 163 (1963).

Injury to leg compensated under § 34-9-263. - When an injury sustained by an employee is confined solely to the employee's leg, the employee was entitled, under former Code 1933, § 114-406 (see now O.C.G.A. § 34-9-263) to compensation. Travelers' Ins. Co. v. Reid, 49 Ga. App. 317, 175 S.E. 414 (1934), later appeal, 54 Ga. App. 13, 186 S.E. 887 (1936).

When an injury is sustained by an employee under the provisions of the workers' compensation provisions which results in total loss of use of a leg and total incapacity to work at the time, the injury is scheduled under former Code 1933, § 114-406 (see now O.C.G.A. § 34-9-263). National Sur. Corp. v. Nelson, 99 Ga. App. 95, 107 S.E.2d 718 (1959).

- When disability was confined to two fingers of the left hand, claimant was entitled to receive compensation based only on a specific member injury. Nance v. Argonaut Ins. Co., 143 Ga. App. 537, 239 S.E.2d 156 (1977).

- 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 was 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. 795, § 1).

3. Benefits Awarded

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) provide 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).

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, while in former Code 1933, §§ 114-404 and 114-405 (see now O.C.G.A. §§ 34-9-261 and34-9-262) 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).

- If the claimant is suffering physical impairment resulting from claimant's 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).

Compensation for injury to body as whole is determined by 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).

- When the employee is totally disabled, the employee may not receive an award of compensation for total disability under former Code 1933, § 114-404 (see now O.C.G.A. § 34-9-261) without any consideration for the weeks during which compensation had theretofore been paid for specific member injury under former Code 1933, § 114-406 (see now O.C.G.A. § 34-9-263). Benton v. United States Cas. Co., 118 Ga. App. 804, 165 S.E.2d 473 (1968).

- 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 the former provisions during the partial incapacity, even though the benefits previously awarded under the preceding provision had been paid in a lump-sum settlement, and the period 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 (see now O.C.G.A. § 34-9-263). Hardware Mut. Cas. Co. v. Wilson, 72 Ga. App. 574, 34 S.E.2d 634 (1945).

- An award based on an agreement between an employer and an employee for maximum weekly payments "until terminated in accordance with the provisions of the Workers' Compensation Act," showing on its face that the employee received multiple injuries, must be construed as an award under former Code 1933, § 114-404 (see now O.C.G.A. § 34-9-261) for total disability, rather than one under former Code 1933, § 114-406 (see now O.C.G.A. § 34-9-263) for an injury to a specific member, and such an award is res judicata. Accordingly, when a later award is made for permanent disability of a specific member, the employer is not entitled to credit against the later award for weekly payments made under the original award, even though at the hearing there is no evidence that there has been any disability from any injury other than that to the specific member. St. Paul Fire & Marine Ins. Co. v. Durden, 104 Ga. App. 541, 122 S.E.2d 262 (1961).

OPINIONS OF THE ATTORNEY GENERAL

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

- The fact that an injured employee is 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 earned before the employee's injury and those wages which the employee was able to earn thereafter. 1971 Op. Att'y Gen. No. 71-136.

RESEARCH REFERENCES

ALR.

- Accident and disability insurance: when insured deemed to be totally and continuously unable to transact all business duties, 37 A.L.R. 151; 39 A.L.R.3d 1026.

What amounts to total incapacity within Workmen's Compensation Acts, 67 A.L.R. 785; 98 A.L.R. 729.

Workmen's compensation: right to compensation for temporary total disability in addition to compensation for permanent partial disability, 88 A.L.R. 385.

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.

What constitutes total or permanent disability within the coverage of disability insurance coverage issued to farmer or agricultural worker, 26 A.L.R.3d 714.

Validity and construction of accident insurance policy provision making benefits conditional on disability occurring immediately, or at once, or within specified time of accident, 39 A.L.R.3d 1026.

Admissibility of opinion evidence as to employability on issue of disability in health and accident insurance and workers' compensation cases, 89 A.L.R.3d 783.

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