2020 Georgia Code
Title 34 - Labor and Industrial Relations
Chapter 9 - Workers' Compensation
Article 7 - Compensation Schedules
§ 34-9-263. Compensation for Permanent Partial Disability

Universal Citation: GA Code § 34-9-263 (2020)
  1. Definition. As used in this chapter, "permanent partial disability" means disability partial in character but permanent in quality resulting from loss or loss of use of body members or from the partial loss of use of the employee's body.
  2. Payment of benefits.
    1. In cases of permanent partial disability, the employer shall pay weekly income benefits to the employee according to the schedule included within this Code section. These benefits shall be payable without regard to whether the employee has suffered economic loss as a result of the injury, except as herein provided.
    2. Income benefits due under this Code section shall not become payable so long as the employee is entitled to benefits under Code Section 34-9-261 or 34-9-262.
    3. If any employee is receiving benefits under this Code section and experiences a change in condition qualifying the employee for income benefits under Code Section 34-9-261 or 34-9-262, any payments under this Code section shall cease until further change of the employee's condition occurs.

(c) Schedule of income benefits. Subject to the maximum and minimum limitations on weekly income benefits specified in Code Section 34-9-261, the employer shall pay weekly income benefits equal to two-thirds of the employee's average weekly wage for the number of weeks determined by the percentage of bodily loss or loss of use times the maximum weeks as follows:

Bodily Loss

Maximum Weeks

(1) Arm ...............................................................225 (2) Leg ...............................................................225 (3) Hand ..............................................................160 (4) Foot ..............................................................135 (5) Thumb ............................................................. 60 (6) Index finger ...................................................... 40 (7) Middle finger ..................................................... 35 (8) Ring finger ....................................................... 30 (9) Little finger ..................................................... 25 (10) Great toe ........................................................ 30 (11) Any toe other than the great toe ................................. 20 (12) Loss of hearing, traumatic One ear ............................................................. 75 Both ears ...........................................................150 (13) Loss of vision of one eye ........................................150 (14) Disability to the body as a whole ................................300

Impairment ratings. In all cases arising under this chapter, any percentage of disability or bodily loss ratings shall be based upon Guides to the Evaluation of Permanent Impairment, fifth edition, published by the American Medical Association.

Loss of more than one major member. Loss of both arms, hands, legs, or feet, or any two or more of these members, or the permanent total loss of vision in both eyes shall create a rebuttable presumption of permanent total disability compensable as provided in Code Section 34-9-261.

(Ga. L. 1920, p. 167, § 32; Ga. L. 1923, p. 92, § 3; Code 1933, § 114-406; Ga. L. 1945, p. 485, § 1; Ga. L. 1955, p. 210, § 3; Ga. L. 1958, p. 360, §§ 1, 2; Ga. L. 1963, p. 141, § 7; Ga. L. 1971, p. 895, § 1; Ga. L. 1973, p. 232, § 5; Ga. L. 1974, p. 1143, §§ 5, 6; Ga. L. 1978, p. 2220, § 5; Ga. L. 1982, p. 3, § 34; Ga. L. 1985, p. 149, § 34; Ga. L. 1985, p. 727, § 10; Ga. L. 1996, p. 1291, § 12; Ga. L. 2001, p. 748, § 8.)

Law reviews.

- 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).

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Scope of Section
  • Definitions
  • Specific or General Disability
  • Compensable Injuries
  • Benefits Awarded
General Consideration

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 for member loss, only actual total or partial disability compensated.

- 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 since claimant 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).

No compensation for nondisability producing disfigurement.

- Georgia is among a minority of states which does not allow workers' compensation for nondisability producing disfigurement. Nowell v. Stone Mt. Scenic R.R., 150 Ga. App. 325, 257 S.E.2d 344 (1979).

Pre-existing condition aggravated.

- 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 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).

Untimely claim is barred.

- 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).

Cited in Taylor v. Lumbermen's Mut. Cas. Co., 43 Ga. App. 292, 158 S.E. 623 (1931); 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, 179 Ga. 590, 176 S.E. 406 (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); Continental Cas. Co. v. Haynie, 51 Ga. App. 650, 181 S.E. 126 (1935); Fidelity & Cas. Co. v. Clements, 53 Ga. App. 622, 186 S.E. 764 (1936); Travelers Ins. Co. v. Reid, 54 Ga. App. 13, 186 S.E. 887 (1936); London Guarantee & Accident Co. v. Boynton, 54 Ga. App. 419, 188 S.E. 265 (1936); Miller v. Indemnity Ins. Co., 55 Ga. App. 644, 190 S.E. 868 (1937); Rourke v. U.S. Fid. & Guar. Co., 187 Ga. 636, 1 S.E.2d 728 (1939); Bituminous Cas. Corp. v. Lockett, 65 Ga. App. 829, 16 S.E.2d 614 (1941); London Guarantee & Accident Co. v. Pittman, 69 Ga. App. 146, 25 S.E.2d 60 (1943); Bituminous Cas. Corp. v. Sapp, 196 Ga. 431, 26 S.E.2d 724 (1943); New Amsterdam Cas. Co. v. Brown, 81 Ga. App. 790, 60 S.E.2d 245 (1950); Georgia Ins. Serv. v. Lord, 83 Ga. App. 28, 62 S.E.2d 402 (1950); Miller v. Independent Life & Accident Ins. Co., 86 Ga. App. 538, 71 S.E.2d 705 (1952); Yates v. United States Rubber Co., 100 Ga. App. 583, 112 S.E.2d 182 (1959); Brown v. General Accident Fire & Life Assurance Corp., 101 Ga. App. 208, 113 S.E.2d 215 (1960); Davis v. Cobb County, 106 Ga. App. 336, 126 S.E.2d 710 (1962); Surmiak v. Standard Accident Ins. Co., 106 Ga. App. 479, 127 S.E.2d 334 (1962); Employers Mut. Liab. Ins. Co. v. Shipman, 108 Ga. App. 184, 132 S.E.2d 568 (1963); Hackel v. Fidelity & Cas. Co., 111 Ga. App. 190, 140 S.E.2d 923 (1965); Surmiak v. Standard Accident Ins. Co., 113 Ga. App. 3, 147 S.E.2d 56 (1966); 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); Reliance Ins. Co. v. Oliver, 117 Ga. App. 466, 160 S.E.2d 615 (1968); Liberty Mut. Ins. Co. v. Hayes, 117 Ga. App. 500, 160 S.E.2d 902 (1968); Argonaut Ins. Co. v. Wilson, 119 Ga. App. 121, 166 S.E.2d 641 (1969); Bituminous Cas. Corp. v. Willingham, 119 Ga. App. 761, 168 S.E.2d 910 (1969); Medley v. Hartford Accident & Indem. Co., 121 Ga. App. 54, 172 S.E.2d 461 (1970); Bush v. Fidelity & Cas. Co., 121 Ga. App. 718, 175 S.E.2d 114 (1970); Argonaut Ins. Co. v. Allen, 123 Ga. App. 741, 182 S.E.2d 508 (1971); Employers Commercial Union Ins. Co. v. Palmer, 127 Ga. App. 54, 192 S.E.2d 439 (1972); Blackwell v. Liberty Mut. Ins. Co., 128 Ga. App. 614, 197 S.E.2d 404 (1973); Massey v. Thiokol Chem. Corp., 368 F. Supp. 668 (S.D. Ga. 1973); Georgia Cas. & Sur. Co. v. Rainwater, 132 Ga. App. 170, 207 S.E.2d 610 (1974); Reliance Ins. Co. v. Cushing, 132 Ga. App. 179, 207 S.E.2d 664 (1974); Pope v. Aetna Life & Cas. Co., 132 Ga. App. 798, 209 S.E.2d 246 (1974); Fidelity & Cas. Co. v. Singleton, 133 Ga. App. 31, 209 S.E.2d 684 (1974); American Mut. Liab. Ins. Co. v. Williams, 133 Ga. App. 257, 211 S.E.2d 193 (1974); Blankenship v. Atlantic Steel Co., 137 Ga. App. 282, 223 S.E.2d 479 (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); Johnson v. Allstate Ins. Co., 241 Ga. 234, 244 S.E.2d 851 (1978); Rowell v. Transport Ins. Co., 153 Ga. App. 456, 265 S.E.2d 364 (1980); Hart v. Owens-Illinois, Inc., 161 Ga. App. 831, 289 S.E.2d 544 (1982); 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); Edgeman v. Organic Chem. Corp., 173 Ga. App. 4, 325 S.E.2d 400 (1984); Holt's Bakery v. Hutchinson, 177 Ga. App. 154, 338 S.E.2d 742 (1985); State v. Birditt, 181 Ga. App. 356, 352 S.E.2d 203 (1986); Sanders v. Georgia-Pacific Corp., 181 Ga. App. 757, 353 S.E.2d 849 (1987); Horizon Indus., Inc. v. Carter, 188 Ga. App. 194, 372 S.E.2d 301 (1988); Sutton v. Quality Furn. Co., 191 Ga. App. 279, 381 S.E.2d 389 (1989); Crider's Furs, Inc. v. Atkinson, 221 Ga. App. 681, 472 S.E.2d 507 (1996).

Scope of Section

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).

Section covers industrial employees injured in course of employment.

- This section was related to industry and made provision for compensation to employees in industry who have suffered injuries in the course of employment. Shipman v. Employers Mut. Liab. Ins. Co., 105 Ga. App. 487, 125 S.E.2d 72 (1962).

This section conclusively presumed partial incapacity from losses herein named. Blue Bell Globe Mfg. Co. v. Baird, 64 Ga. App. 347, 13 S.E.2d 105 (1941).

When compensation is allowed under Ga. L. 1920, p. 167, § 32 (see now O.C.G.A. § 34-9-263), it is barred under Ga. L. 1920, p. 167, §§ 30 and 31 (see now O.C.G.A. §§ 34-9-261 and34-9-262) for the same injury. Georgia Cas. Co. v. Jones, 156 Ga. 664, 119 S.E. 721 (1923).

When an award for a partial permanent handicap was given under former Code 1933, § 114-406 (see now O.C.G.A. § 34-9-263), it was proper not to consider claims for compensation under former Code 1933, §§ 114-404 and 114-405 (see now O.C.G.A. §§ 34-9-261 and34-9-262). Black v. American & Foreign Ins. Co., 123 Ga. App. 133, 179 S.E.2d 679 (1970).

Preceding sections compensate earning capacity losses.

- 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 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).

Certain physical disabilities not compensable.

- Physical disabilities other than those specified in this section unaccompanied by impairment of earning capacity were not compensable. United States Cas. Co. v. Young, 104 Ga. App. 373, 121 S.E.2d 680 (1961).

Limitation on compensation as result of one injury.

- 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).

Compensation for separate injuries.

- 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 worker was totally disabled by respiratory impairment resulting from byssinosis and other, non-work-related causes, including smoking, O.C.G.A. §§ 34-9-263 and34-9-283, provisions for a permanent partial disability, were inapposite. Computation of benefits had to be made under O.C.G.A. § 34-9-285. Whitaker v. Fieldcrest Mills, Inc., 174 Ga. App. 533, 330 S.E.2d 761 (1985).

Claimant's condition may change from total incapacity to permanent partial handicap.

- Under the provisions of the workers' compensation law, the board may find a change in the claimant's condition from total incapacity (see now O.C.G.A. § 34-9-261) to a permanent partial industrial handicap (see now O.C.G.A. § 34-9-263). Noles v. Mills, 116 Ga. App. 560, 158 S.E.2d 261 (1967).

Definitions

"Disability."

- 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).

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 measured by the specific physical impairment, and when 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).

"Injury" to specific member.

- Specific member "injury" is resulting loss of use of that member regardless of the situs of the physical impact and physical impact is not a necessary prerequisite to "injury" within the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.). Owens-Illinois, Inc. v. Douglas, 151 Ga. App. 408, 260 S.E.2d 509 (1979).

"Loss of a hand."

- Injury to the hand which was cured within 10 days after claimant returned to work was not "the loss of a hand" under this section. Castle v. Imperial Laundry & Dry Cleaning Co., 62 Ga. App. 184, 8 S.E.2d 547 (1940).

"Complete loss of hearing," as used in this section, meant the loss of industrial hearing. Shipman v. Employers Mut. Liab. Ins. Co., 105 Ga. App. 487, 125 S.E.2d 72 (1962).

"Complete loss of hearing" as used in this section did not mean complete deafness, but meant the loss of the industrial use of the ear or ears. Thus, even if one has some hearing ability in an ear but the ear has none of the hearing ability required of one's work, one was deemed to have "complete loss of hearing" in the ear for the purposes of workers' compensation. Aetna Ins. Co. v. Woody, 118 Ga. App. 819, 165 S.E.2d 469 (1968).

Word "member" does not embrace the ear. Travelers Ins. Co. v. Albin, 33 Ga. App. 666, 127 S.E. 804 (1925).

This section became operative only when "substantially all" (meaning one-half) of the phalange was removed. Pye v. Insurance Co. of N. Am., 146 Ga. App. 365, 246 S.E.2d 400 (1978) (decided prior to 1996 amendment; see O.C.G.A. § 34-9-263).

Specific or General Disability

Section distinguished from § 34-9-261. - 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. Bethlehem Steel Co. v. Dempsey, 94 Ga. App. 408, 94 S.E.2d 749 (1956).

Compensation for specific members determined by this section.

- It is necessary to ascertain the permanent partial disability before an award can be made under this section, but when permanent partial disability is ascertained, then the claimant becomes entitled to receive compensation as for permanent partial loss of use of the member, and such compensation is in lieu of all other compensation for the permanent partial handicap. American Mut. Liab. Ins. Co. v. Braden, 43 Ga. App. 74, 157 S.E. 904 (1931).

In a case involving an injury to a specified member of the body as described in this section, the amount of compensation which can be awarded for an injury to such specific member was the amount prescribed in that section, and such compensation was in lieu of all other compensation for permanent partial industrial handicap. Liberty Mut. Ins. Co. v. Holloway, 58 Ga. App. 542, 199 S.E. 334 (1938).

In a case involving an injury to a specified member of the body, as described in this section, the amount of compensation which can be awarded for such injury was the amount set out in that section, and such compensation will be in lieu of all other compensation. Bituminous Cas. Co. v. Dyer, 62 Ga. App. 279, 7 S.E.2d 415 (1940).

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 this section. Nation v. Pacific Employers Ins. Co., 112 Ga. App. 380, 145 S.E.2d 265 (1965).

When the injury is confined to a specific member injury, the right to compensation is not based on economic condition or ability to return to work but solely upon the loss of use of the specific member. Morrison Assurance Co. v. Hodges, 130 Ga. App. 436, 203 S.E.2d 629 (1973).

Section excludes any other compensation.

- Plain and unambiguous wording of this section excluded any other compensation for disability when the injury resulted and compensation was paid for the loss of a member. National Sur. Corp. v. Martin, 86 Ga. App. 77, 71 S.E.2d 666 (1952).

Compensation for the loss of a member under this section was in full for such specific injury, and excluded compensation for temporary total disability arising solely from the loss of the member. Stone v. American Mut. Liab. Ins. Co., 42 Ga. App. 271, 155 S.E. 795 (1930); American Mut. Liab. Ins. Co. v. Braden, 43 Ga. App. 74, 157 S.E. 904 (1931); Travelers' Ins. Co. v. Reid, 49 Ga. App. 317, 175 S.E. 414 (1934).

When no superadded injury or disease.

- 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 became totally disabled, the employee's compensation was determined by former Code 1933, § 114-406, 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).

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 was totally incapacitated at the time. Globe Indem. Co. v. Brooks, 84 Ga. App. 687, 67 S.E.2d 176 (1951).

Disability resulting from loss of use of a specific member must be computed under the schedule in this section when there was no superadded injury or disease affecting other portions of the body. National Sur. Corp. v. Martin, 86 Ga. App. 77, 71 S.E.2d 666 (1952).

A resulting injury to other parts of the body must be shown if other than compensation for injury to a member is to be awarded. Godbee v. American Mut. Liab. Ins. Co., 95 Ga. App. 86, 96 S.E.2d 648 (1957).

If an employee suffers an injury which results in a partial or total disability (industrial handicap) to one member of the employee's body only with no superadded injury, the employee is entitled only to compensation for an industrial handicap as provided by this section, irrespective of the employee's earning ability after the accident is sustained. Waters v. Aetna Cas. & Sur. Co., 114 Ga. App. 744, 152 S.E.2d 754 (1966).

Superadded injury following member loss.

- It might be that if one of the specific injuries in this section named should be accompanied or followed by a partial permanent or temporary disability due to some other cause, such as infection or paralysis, and not to the loss of member, whereby a superadded injury follows, the employee would be entitled to additional compensation. Georgia Cas. Co. v. Jones, 156 Ga. 664, 119 S.E. 721 (1923).

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

If 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 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).

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 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 former provisions. Clark v. Liberty Mut. Ins. Co., 108 Ga. App. 806, 134 S.E.2d 534 (1963).

Superadded injury or disease was one which occurred to a specific member of the body subsequent to a job-related injury and affected 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).

Member not "lost," but employee totally disabled by injuries.

- When an employee was totally disabled by injuries to one of the employee's feet, but the foot was not "lost," the employee's compensation was not fixed and limited by former Code 1933, § 114-406 (see now O.C.G.A. § 34-9-263). City of Waycross v. Hayes, 48 Ga. App. 317, 172 S.E. 756 (1934).

Multiple injuries.

- When the accident to the claimant resulted in multiple injuries to claimant, an award of compensation for 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 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).

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 came within the provisions of § 114-408. 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).

When injury not to specific member, compensation determined by § 34-9-261 or § 34-9-262. - When 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), where 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), when 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).

Claimant suffering from physical impairment not entitled to compensation for member loss.

- If 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 a 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) (decided prior to 1996 amendment).

Compensable Injuries

1. Injuries Considered Compensable

Related injuries from same 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).

Compensation was solely dependent upon loss of function of arm. Reliance Ins. Co. v. Oliver, 114 Ga. App. 639, 152 S.E.2d 423 (1966).

Arm fracture and permanent partial loss of left arm specific member injury.

- When employee sustained a work-related injury which resulted in a fracture of the head of the humerus and a permanent partial loss of 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).

Total loss of use of leg.

- When an injury sustained by an employee was confined solely to the employee's leg, and if there was then a total loss of use of the leg, the employee was entitled under this section 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).

Under this section, total loss of use of leg was equivalent to loss of leg. Roddy v. Hartford Accident & Indem. Co., 65 Ga. App. 632, 16 S.E.2d 81 (1941).

When the workers' compensation claimant sustained a total loss of claimant's left leg, and within 10 weeks after the injury occurred had been able to return to claimant's regular job at an increase in claimant's earnings, claimant would still be entitled to compensation for the total loss of claimant's leg. Roddy v. Hartford Accident & Indem. Co., 65 Ga. App. 632, 16 S.E.2d 81 (1941).

When an injury was sustained by an employee under the provisions of the workers' compensation provisions, which resulted in total loss of use of a leg and total incapacity to work at the time, the injury was scheduled under this section. National Sur. Corp. v. Nelson, 99 Ga. App. 95, 107 S.E.2d 718 (1959).

Permanent and total loss of use of hand.

- Under this section, an employee who suffered a permanent and total loss of the use of a hand, by reason of an accident arising out of and in the course of employment, may be allowed compensation for the permanent handicap. South v. Indemnity Ins. Co. of N. Am., 39 Ga. App. 47, 146 S.E. 45 (1928), cert. denied, 39 Ga. App. 843 (1929).

Permanent partial loss of use of hand.

- Under this section, an employee who suffers a permanent but partial loss of the use of a hand may be allowed compensation. South v. Indemnity Ins. Co. of N. Am., 39 Ga. App. 47, 146 S.E. 45 (1928), cert. denied, 39 Ga. App. 843 (1929).

Hand injury resulting from finger injury compensated on basis of finger loss.

- If the hand is injured as a result of the injury to a finger, and in no other way, the injury to the hand shall be compensated for in a certain amount for the loss of the finger, or the use thereof, or for partial loss or partial loss of use. Travelers Ins. Co. v. Colvard, 70 Ga. App. 257, 28 S.E.2d 317 (1943).

The law provides that if the hand is injured as a result of the injury to a finger, and in no other way, the injury to the hand shall be compensated for in a certain and definite manner, namely, a certain amount for the loss of the finger, or the use thereof, or for partial loss or partial loss of use. There is no other reasonable construction of the law, because if there is only an injury to a finger, and compensation as for an injury to the whole hand is allowed, it seems that uncertainty, lack of uniformity, and confusion would result in the attempted administration of the compensation law. Murray v. Hartford Accident & Indem. Co., 135 Ga. App. 870, 219 S.E.2d 472 (1975).

This section provided compensation for loss of use of the fingers separately from the hand. Therefore, when only the fingers are injured, and the use of the hand is affected only insofar as the use of the fingers is affected, compensation must be paid on the basis fixed for the fingers and not the hand. Continental Cas. Co. v. Castleberry, 147 Ga. App. 684, 250 S.E.2d 19 (1978).

When hand left less serviceable than it would have been had fingers healed properly.

- When the claimant can establish by proof that fingers for which claimant was duly compensated had apparently healed at the time of an approved settlement, and when thereafter it developed that the healing was incomplete or so that what was left of claimant's hand was less serviceable than it would have been had the healing of the fingers been complete and proper, claimant is entitled to recover for the percentage of the loss of the use of claimant's hand, less the amount claimant had already received or is entitled to receive for claimant's fingers. Wiley v. Bituminous Cas. Co., 76 Ga. App. 862, 47 S.E.2d 652 (1948).

When fingers are either totally or partially disabled, what is left of the hand is presumed to be serviceable. However, if the injured fingers fail to heal, or improperly heal, this may render useless what is left of the hand. Also, it may impair what is left of the hand to a percentage of disability far greater than the loss of the fingers when they properly healed. Murray v. Hartford Accident & Indem. Co., 135 Ga. App. 870, 219 S.E.2d 472 (1975).

Loss of multiple phalanges considered loss of entire finger.

- Total loss of use of a member shall be considered as equivalent to the loss of the member, and the loss of more than one phalange shall be considered the loss of the entire finger or thumb. Holcombe v. Fireman's Fund Ins. Co., 102 Ga. App. 587, 116 S.E.2d 891 (1960) (decided prior to 1996 amendment).

Partial foot loss concurring with toe loss.

- Fact that compensation was awarded to an employee for the loss of two toes, as provided in this section, does not preclude the employee from afterwards receiving compensation for a partial loss of the use of the employee's foot, when the loss of the toes, for which compensation had already been awarded, concurred with other injuries in the foot arising out of the same accident which caused the loss of the toes, in causing the partial loss of the use of the foot. General Accident, Fire & Life Assurance Corp. v. Beatty, 174 Ga. 314, 162 S.E. 668, answer conformed to, 45 Ga. App. 104, 163 S.E. 302 (1932).

Hearing loss at work due to very loud noises.

- If, on the trial of an application for compensation for loss of hearing, under the provisions of this section, it appeared that the claimant sustained a loss of hearing while working on a flight line as a mechanic, and that such loss was due to claimant's continued and repetitious exposure over a period of months to very loud noises emanating from the operation of jet aircraft engines in close proximity to claimant's work, a finding that claimant suffered a compensable injury was authorized. Shipman v. Employers Mut. Liab. Ins. Co., 105 Ga. App. 487, 125 S.E.2d 72 (1962).

Determining extent of vision loss.

- If claimant had perfect vision prior to accident, corrected vision formula cannot be applied. Georgia Cas. & Sur. Co. v. Speller, 122 Ga. App. 459, 177 S.E.2d 491 (1970).

Physical impairment due to paranoid schizophrenia.

- Evidence sufficient to support award for permanent partial disability based upon a 20 percent permanent physical impairment due to paranoid schizophrenia. GMC v. Summerous, 170 Ga. App. 338, 317 S.E.2d 318 (1984).

2. Injuries Not Considered Compensable

Hand loss not caused by finger injury.

- When there is no evidence that an injury to the fingers resulted in a loss of use of the hand, an award granting compensation for a 10 percent loss of the hand is not authorized. Continental Cas. Co. v. Castleberry, 147 Ga. App. 684, 250 S.E.2d 19 (1978).

Loss of hearing in one ear.

- While the law provides that compensation shall be paid for the complete loss of hearing in both ears, there is no express provision for the loss of hearing in one ear. Travelers Ins. Co. v. Albin, 33 Ga. App. 666, 127 S.E. 804 (1925) (decided under former Code 1933, § 114-406, prior to revision by Ga. L. 1971, p. 895, § 1).

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 it relates to loss of bodily members and loss of hearing in both ears, and it had been held that an ear was not embraced in the term "member," but whatever compensation the claimant is 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).

Total disability entitled to income compensation benefits only.

- 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 and not O.C.G.A. § 34-9-263. Hensel Phelps Constr. Co. v. Manigault, 167 Ga. App. 599, 307 S.E.2d 79 (1983).

Loss of foot or toes.

- When the evidence did not demand a finding that the 15 percent disability found to exist as to claimant's "right lower extremity" or the 25 percent disability found to exist as to claimant's right foot was the result of anything other than the 100 percent loss of claimant's three toes, the full board was authorized to find that claimant was not entitled to separate additional compensation for claimant's foot or claimant's leg and to award compensation based solely on the loss of the toes. UPS v. Outlaw, 190 Ga. App. 840, 380 S.E.2d 310 (1989).

3. Pain

Pain and suffering, unless so severe as to result in economic disability, are not compensable. Nowell v. Stone Mt. Scenic R.R., 150 Ga. App. 325, 257 S.E.2d 344 (1979).

Pain itself not compensable.

- Under this section, pain was not itself compensable, but when it was so severe that disability resulted, then the fact that the disability or loss of use resulted because the human mechanism must cease the use rather than bear the pain, a compensable loss of use results. Williamson v. Aetna Cas. & Sur. Co., 101 Ga. App. 220, 113 S.E.2d 208 (1960).

When the director found that no disability was shown to exist in the claimant's hip or tailbone, except for reflected pain, that pain is still compensable under this section when it prevented the claimant from any gainful employment. Clark v. Liberty Mut. Ins. Co., 108 Ga. App. 806, 134 S.E.2d 534 (1963).

A compensable loss of use results when the pain is so severe that the human mechanism must cease rather than bear the pain. Durden v. Liberty Mut. Ins. Co., 151 Ga. App. 399, 259 S.E.2d 656 (1979).

Discomfort alone not considered disability.

- Discomfort, unless it be such that it prevented the employee from performing the employee's duties, was not considered a disability within the meaning of this section. Jones v. United States Fid. & Guar. Co., 125 Ga. App. 323, 187 S.E.2d 879 (1972).

Sufficiently disabling pain compensable.

- 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).

Benefits Awarded

Right to compensation for specific member disability based upon loss of member's function.

- Right to compensation for specific body member disability under this section was based not upon permanent industrial handicap, but solely upon the loss of function of the member itself. Zurich Ins. Co. v. Robinson, 127 Ga. App. 113, 192 S.E.2d 533 (1972).

As a matter of law, a claimant is entitled to benefits for permanent partial disability for each specified individual member injured in a work-related accident. N.G. Gilbert Corp. v. Cash, 181 Ga. App. 775, 353 S.E.2d 840 (1987).

Under O.C.G.A. § 34-9-263(b)(2), it is not receipt of benefits that triggers payment, but entitlement to such benefits. Because an employee had been totally disabled from employment since the employee's injury, the employee was entitled to receive temporary total disability benefits pursuant to O.C.G.A. § 34-9-261 since that date; therefore, the employee could not receive permanent partial disability benefits under § 34-9-263(b)(2). Wet Walls, Inc. v. Ledezma, 266 Ga. App. 685, 598 S.E.2d 60 (2004).

Insufficient notice and opportunity to be heard.

- Because the record showed that a workers' compensation claimant was awarded temporary total disability benefits and that the issue of permanent partial disability benefits was not raised by either party, the insurer was not afforded notice or an opportunity to be heard on the issue of permanent partial disability benefits; thus, it was entitled to a hearing regarding such on remand. Cypress Ins. Co. v. Duncan, 281 Ga. App. 469, 636 S.E.2d 159 (2006).

Claimant's earning ability after accident irrelevant.

- 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).

An award for an industrial handicap as specifically provided for by this section was based on impairment to the member, irrespective of the earning ability of a claimant after an accident is sustained. GMC v. Sligh, 108 Ga. App. 354, 133 S.E.2d 56 (1963).

Claimant still entitled to compensation though able to return to regular job.

- This section provided compensation for the loss, or loss of use, of a member, irrespective of the earning ability of the claimant after the injury was sustained, and a claimant was still entitled to compensation for the loss or injury to a member even though claimant was able to return to claimant's regular job. Godbee v. American Mut. Liab. Ins. Co., 95 Ga. App. 86, 96 S.E.2d 648 (1957).

An 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).

Compensation payable in relationship that percentage of loss bears to total loss.

- When there was an injury to a specific member listed under this section and a percentage of loss of use of the member can be determined, compensation was payable in the relationship that the percentage of loss of use bore to the total loss of the member. Employers Liab. Assurance Corp. v. Hollifield, 93 Ga. App. 51, 90 S.E.2d 681 (1955).

Apportionment of benefits required when claimant has preexisting degeneration infirmity.

- 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).

Error to remand to board to determine loss when record's evidence supports board's finding.

- When there is evidence in the record supporting the board's implicit finding that the claimant's loss of use of the specific member involved is 100 percent, the superior court errs in remanding for the purpose of determining the percentage of loss of use. Travelers Ins. Co. v. Hogue, 130 Ga. App. 844, 204 S.E.2d 760 (1974).

Percentage of disability finding supported by evidence.

- As the percentage of disability found by the state board was within the range of all the evidence, the finding could not be said to lack evidentiary support. The claimant offered evidence showing a 15 percent disability, while claimant's employer and its self-insurer offered evidence suggesting a five percent disability, and the board determined that the claimant sustained a ten percent permanent partial disability. Mix v. Allied Readymix, 248 Ga. App. 261, 546 S.E.2d 41 (2001).

Permanent partial industrial handicaps shall be compensated by payments for periods specified.

- 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).

Weekly compensation for definite periods of time.

- This section was intended to provide weekly compensation for total or partial loss, or loss of use, of a member for definite periods of time. For partial loss, or loss of use, of a member, its language was definitively calculated to import that the lesser the loss or disability, the lesser the weekly compensation payment. Nowhere did it imply the lesser the loss, the shorter the period of payment. Pittsburgh Plate Glass Co. v. Bailey, 111 Ga. App. 609, 142 S.E.2d 388 (1965).

Award subject to review upon change in condition.

- Award granting to an employee compensation for the total loss of use of a leg is not a final and conclusive adjudication in favor of the right of the employee to recover the weekly amounts of compensation therein granted the employee for the number of weeks therein specified. Such an award is subject to review upon the application of either the employer or the employee, whenever either brings oneself within the terms of former Code 1933, § 114-709 (see now O.C.G.A. § 34-9-104). 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).

Total loss of use of a member was equivalent to the loss of that member, and compensation for such total loss of use shall be continued under former Code 1933, § 114-406 (see now O.C.G.A. § 34-9-263) until there shall be permanent or partial recovery of the use, at which time compensation should be reduced proportionately to the recovery of the use of the member under former Code 1933, § 114-709 (see now O.C.G.A. § 34-9-104). Continental Cas. Co. v. Haynie, 182 Ga. 608, 186 S.E. 683 (1936).

Award authorized for injured member restored to full use, but in danger of reinjury.

- Award to a claimant worker for permanent partial disability due to an injured member of claimant's body which has recovered sufficiently to restore full use thereof, but which is left in such tender condition that the full use thereof must be refrained from on account of the imminent danger of reinjuring it is authorized. Liberty Mut. Ins. Co. v. Thrower, 76 Ga. App. 275, 45 S.E.2d 459 (1947).

Compensation must be awarded in accordance with section's schedule.

- When the uncontradicted evidence showed that the claimant sustained complete or partial amputations or total or partial loss of use of one or more fingers and a partial amputation and/or loss of use of the thumb, the compensation must be awarded in accordance with the schedule set forth in this section. The board was not empowered in a case such as this, even though supported by sufficient competent testimony, to superimpose its views upon the clear and specific mandates of that section and render an award on a percentage basis, in lieu of the detailed directives appearing in the law. Holcombe v. Fireman's Fund Ins. Co., 102 Ga. App. 587, 116 S.E.2d 891 (1960).

Attempt by board to legislate as to measure of compensation payable was invalid. Southern Coop. Foundry Co. v. Drummond, 76 Ga. App. 222, 45 S.E.2d 687 (1947).

Payments of compensation for specific member injuries are in lieu of all other compensation. Benton v. United States Cas. Co., 118 Ga. App. 804, 165 S.E.2d 473 (1968).

Employee can recover compensation under both § 34-9-261 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, § 114-404 (see now O.C.G.A. § 34-9-261) and former Code 1933, § 114-406, then the employee's compensation under the previous section was not in lieu of all other compensation. Massey v. Aetna Cas. & Sur. Co., 86 Ga. App. 211, 71 S.E.2d 103 (1952).

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

Disability not dependent on ability to find employment.

- 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).

Impairment of earning capacity compensable.

- 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, §§ 114-404 and 114-405 (see now O.C.G.A. §§ 34-9-261 and34-9-262). Therefore, if any injury to the employee by accident arising out of and in the course of employment either totally or partially impaired 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).

Impairment determined by comparing average weekly wages prior to injury with wages earned thereafter.

- 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. The only formula for determining this difference is to compare claimant's average weekly wages prior to the injury with claimant's 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).

No compensation when claimant earns more than prior average wages.

- Partially disabled claimant will not be entitled to compensation for the period in which claimant earned more than claimant's average weekly wages prior to the injury. Liberty Mut. Ins. Co. v. Goins, 96 Ga. App. 887, 101 S.E.2d 920 (1958).

Earning capacity impairment total when claimant unable to procure any work.

- Since 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).

Compensation theretofore paid for specific member injury considered in total disability award.

- When the employee was 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).

Compensation paid under section considered in temporary partial disability award.

- When, on 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 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 (see now O.C.G.A. § 34-9-263) 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 (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).

Partial incapacity terminates when employee capable of earning same wage.

- Except as specifically provided in this section, partial incapacity terminated when the employee again became capable of earning the same wage the employee earned before the 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. Lumbermens Mut. Cas. Co. v. Cook, 69 Ga. App. 131, 25 S.E.2d 67 (1943).

Lump sum payment not conditioned upon adjudication of permanent disability and definite amount of compensation.

- Under Georgia law, it is not a condition precedent to a lump sum payment that it first be adjudicated that the disability is permanent and that a definite amount of compensation be fixed. If this were not true, there would be no lump sum payments of compensation except as compensation for the injuries enumerated in former Code 1933, § 114-406 (see now O.C.G.A. § 34-9-263). Lumbermens Mut. Cas. Co. v. McIntyre, 67 Ga. App. 666, 21 S.E.2d 446 (1942).

When the question at issue was the degree of disability, either to the claimant's whole person or to a specific member, the award was not unsupported by evidence when the trier of fact arrived at a specific percentage of disability from all of the evidence in the case. Davis v. GMC, 166 Ga. App. 401, 304 S.E.2d 402 (1983).

Proof that an existing incapacity is permanent is not necessary to support an award for either loss of earning capacity or loss of use of a specific member. Davis v. GMC, 166 Ga. App. 401, 304 S.E.2d 402 (1983).

Parties cannot contradict matters previously agreed upon.

- Entering into an agreement and causing it to receive the approval of the board, the parties thereto effectively precluded themselves from thereafter contradicting and challenging the matters thus agreed upon. Employers Mut. Liab. Ins. Co. v. Turner, 126 Ga. App. 24, 189 S.E.2d 862 (1972).

Case remanded when evidence not considered in light of correct and applicable law.

- 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, case would be remanded to the board for further findings. Bouldware v. Delta Corp., 160 Ga. App. 100, 286 S.E.2d 333 (1981).

Res judicata.

- 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 injury to a specific member, and such an award was res judicata. Accordingly, when a later award was made for permanent disability of a specific member, the employer was not entitled to credit against the later award for weekly payments made under the original award, even though at the hearing there was no evidence that there had 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).

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).

If the evidence showed that the claimant suffered temporary total disability as a result of an accident, and thereafter the disability was confined to the claimant's arm, an award finding a change of condition, discounting disability payments under former Code 1933, § 114-404 (see now O.C.G.A. § 34-9-261), and finding a percentage of disability under former Code 1933, § 114-406 (see now O.C.G.A. § 34-9-263), may be authorized if the facts support such a finding. Turner v. Travelers Ins. Co., 114 Ga. App. 729, 152 S.E.2d 783 (1966).

RESEARCH REFERENCES

ALR.

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

Workmen's compensation: what amounts to loss of member within the meaning of the acts, 18 A.L.R. 1350.

Workmen's compensation: injury while riding to or from work in employer's conveyance as arising out of, or in course of, employment, 21 A.L.R. 1223; 24 A.L.R. 1233; 62 A.L.R. 1438; 145 A.L.R. 1033.

Workmen's compensation: compensation for loss or impairment of eyesight within Workmen's Compensation Acts, 24 A.L.R. 1466; 73 A.L.R. 706; 99 A.L.R. 1499; 142 A.L.R. 822.

Accident and disability insurance: when insured deemed to be totally and continuously unable to transact all business duties, 37 A.L.R. 151; 41 A.L.R. 1376; 51 A.L.R. 1048; 79 A.L.R. 857; 98 A.L.R. 789; 39 A.L.R.3d 1026.

Workmen's compensation: compensation for disfigurement, 80 A.L.R. 970; 116 A.L.R. 712.

Workmen's compensation: mental state or nervous condition following accident or injury as compensable, or factor in determining amount or duration of period of compensation, 86 A.L.R. 961.

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

Loss or impairment of vision as within meaning of total disability clause, 1 A.L.R.2d 756.

Amount recoverable under loss of member or vision clauses of accident insurance, 44 A.L.R.2d 1233.

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.

Construction and application of re-examination clause of Seventh Amendment, 10 A.L.R.7th 1.

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