Hudson Et Al. v. v.lcan Materials Company., 179 Ga. App. 341, 346 S.E.2d 117 (1986)

Georgia Court Of Appeals

Status: DECIDED

Docket Number: 71881

Parts: BEASLEY, Judge.

Linked as:

Summary

Judgment affirmed. Deen, P. J., and Benham, J., concur.

Summary

Judgment affirmed. Deen, P. J., and Benham, J., concur.

Text

B. Randall Blackwood, for appellants.

From July 2, 1982 until his death on March 15, 1985, claimant's husband received 141 weekly payments of $135 in workers' compensation benefits, totalling approximately $19,000, for total disability due to silicosis. Upon her husband's death, dependent claimant sought 400 weeks of continued benefits less the 141 weeks of benefits her husband had received, a net of 259 weeks, under OCGA 34-9-265 (b) (4). Denial instigated this action.

The State Board of Workers' Compensation concluded that claimant's recovery was governed by former OCGA 34-9-265, which placed a $32,500 ceiling on recovery for claims under that section, [1] and not OCGA 34-9-334, as the transitory period governed by this latter section "served its purpose and came to an end" in 1966. The superior court reversed the Board's award, concluding that OCGA 34-9-334 remains in effect and thus limits claimant's recovery well below the $32,500 cap of former OCGA 34-9-265 (d). We granted claimant's application for discretionary review.

OCGA 34-9-265 (b) authorizes compensation where "during the period of disability caused by an accident death results proximately therefrom." Disablement or death resulting from an occupational disease, such as silicosis, qualifies as an injury by accident for purposes of this chapter. OCGA 34-9-280; 34-9-281 (a). Therefore, OCGA 34-9-265 is the general provision which covers injury due to occupational diseases.

U. S. Rubber Co., 100 Ga. App. 583, 588 (2) (112 SE2d 182) (1959), that "provision [in Code 114-815] was made for the Act to go into judicial effect once a period of years" relates to the latter half of Code 114-815. The statement does not imply an elimination of the citing contained at the end of Code 114-815.

OCGA 34-9-334 limits compensation on decedent's injury to $22,300, [2] of which decedent had already collected $19,000, as opposed to the $32,500 limit imposed by former OCGA 34-9-265.

Claimant advances a strong policy argument that OCGA 34-9-334's gradual $50-per-month phase-in of liability for silicosis and asbestosis, rather than the imposition of full liability at once, was intended to constitute "the transitory period" until benefits payable for these diseases became equal to those benefits payable for other injuries and diseases. This, according to the view of claimant and the Board, occurred in 1966, and Section 815 then ceased to be active inasmuch as the purpose, as they perceived it, was accomplished.

This view is foreclosed by the Supreme Court's decision in Harrison v. Southern Talc Co., 245 Ga. 212 (2) (264 SE2d 2) (1980). The court in Harrison rejected a constitutional challenge to Code Ann. 114-815 (OCGA 34-9-334), as well as the argument it had been superseded or repealed by implication by Code Ann. 114-803 (see OCGA 34-9-280). On these bases it affirmed a trial court order holding compensation for a 1974 silicosis disability to be limited by Section 815: "We recognize that the total benefits for silicosis are limited under Code Ann. 114-815 [OCGA 34-9-334] whereas there is no limitation for total disability under Code Ann. 114-404 [see OCGA 34-9-261]. This allegedly unfair disparity is a matter which addresses itself of the General Assembly and not to this court."

Although the Supreme Court noted an "allegedly unfair disparity" between recovery for silicosis and for other total disabilities, claimant is urging that we adopt the position that since 1966 no such disparity exists because the statute is no longer actively operative. We cannot, however, overlook the Supreme Court's conclusion that OCGA 34-9-334 limited recovery on a post-1966 silicosis disability. We cannot depart and hold that the same provision does not here limit recovery on this post-1966 disability. Until the legislature adopts a definition of "transitory period" as ending when the benefits payable for silicosis and asbestosis under OCGA 34-9-334 became equal to those payable for other injuries and diseases, or repeals the section altogether, the ceiling contained therein applies to silicosis or asbestosis claims and subjects them to a lower maximum recovery than disability claims due to other injuries or diseases.

Richard B. Best, for appellee.

Notes:

1. OCGA 34-9-265 (d) has since been amended, effective July 1, 1985, to provide a $65,000 ceiling on recovery. Ga. L. 1985, p. 727, 11.

2. $500 (for the first month) + [$50 (per month) X 436 (the number of months from May, 1946 to the date of disability)].