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). Inability to find any suitable work determining factor. — 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). Claimant performed diligent job search. — 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). Partially disabled employee unable to obtain work. — 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 858 34-9-261 WORKERS’ COMPENSATION not suffered total incapacity compensable under that law. GMC v. Harrison, 107 Ga. App. 667, 131 S.E.2d 234 (1963). Intention to retire from work. — 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). 5. Permanency 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 claimant may be capable of holding certain positions, total incapacity not permanent. — 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). Award subject to modification. — 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). 34-9-261 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). Illegally precluded evidence authorizing contrary result harmful error. — 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). 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, 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). Findings conclusive when supported by evidence. — When there is 859 Total Disability (Cont’d) 6. Determination of Compensation (Cont’d) 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). Burden on employer ceasing payments under unreversed award to show ‘‘change in condition.’’ — 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). Res adjudicata. — 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. 34-9-261 432, 124 S.E.2d 653 (1962). Federal wage and hour provisions. — 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). Evidence of disability properly not excluded. — 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). 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). If death results from causes other than injury sustained, benefits cease. — 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). 860 34-9-261 WORKERS’ COMPENSATION 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). Subsequent modification for partial incapacity following total incapacity final award. — 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). ‘‘Partial incapacity’’ defined. — 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). Worker receiving compensation for partial disability disqualified to receive unemployment compensation. — 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 34-9-261 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). Estimate of future extent of disability cannot affect compensation payable. — 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). Finding of continuous disability not authorized when maximum period of compensation exhausted. — 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. 861 Temporary Partial Disability (Cont’d) 2. Incapacity for Work (Cont’d) § 34-9-261) for total disability. GMC v. Harrison, 107 Ga. App. 667, 131 S.E.2d 234 (1963). Employee physically able to perform remunerative labor. — 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). Total disability cannot be due to unwillingness or inability to find different employment. — 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. 34-9-261 McDaniel, 44 Ga. App. 40, 160 S.E. 554 (1931). Total disability results from inability to do any work or to procure any suitable remunerative employment. — 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). Claimant losing job because of plant closing, not injury, cannot apply for increased compensation. — 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). Partial incapacity terminates when employee again becomes capable of earning same wage. — 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 862 34-9-261 WORKERS’ COMPENSATION 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). Temporary partial disability when claimant accepted lesser paying work. — 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). 3. Permanency 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 and 34-9-262) was loss of earning capacity due to the injury and not due to the 34-9-261 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). Provisions allow compensation based on impairment. — Former Code 1933, §§ 114-404 and 114-405 (see now O.C.G.A. §§ 34-9-261 and 34-9-262) 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). Measurement of economic disability. — 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 and 34-9-262) 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). Impairment total when claimant unable to procure any work. — 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 863 Temporary Partial Disability (Cont’d) 4. Impairment of Earning Capacity (Cont’d) 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). Treatment of outside income not attributable to earning capacity. — 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). Error to shift payments to partial disability when wages employee able to earn not determined. — 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 34-9-261 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 and 34-9-263) were not mutually exclusive. Employers Mut. Liab. Ins. Co. v. Derwael, 105 Ga. App. 54, 123 S.E.2d 345 (1961). Under Ga. L. 1923, p. 92, § 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). 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 864 34-9-261 WORKERS’ COMPENSATION 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 34-9-261 under former Code 1933, §§ 114-404 and 114-405 (see now O.C.G.A. §§ 34-9-261 and 34-9-262), 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). Employer must have notice before issuing award. — 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 865 34-9-261 Permanent Partial Disability (Cont’d) 2. Compensable Injuries (Cont’d) under former Code 1933, § 114-406, prior to revision by Ga. L. 1971, p. 795, § 1). 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). Disability confined to two fingers. — 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). Loss to trumpet part of ear. — 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 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 and 34-9-262) 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 and 34-9-262) 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). Claimant suffering from physical impairment not entitled to compensation for member loss. — 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). Compensation paid for specific member injury considered in total disability award. — 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 866 34-9-261 WORKERS’ COMPENSATION 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 for specific member injury considered in temporary partial disability award. — 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 34-9-261 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). Award for total disability res judicata. — 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).