E. B. Shaw, Essley B. Burdine, Thomas M. Stubbs, contra.John M. Williams, for plaintiff in error.

An award of the State Board of Workmen's Compensation, whether based on agreement or on evidence adduced at a hearing, is res judicata until a new agreement is entered into between the parties or application is made for a hearing to show a "change in condition," or the employer shows a change in condition on a hearing held under Code (Ann.) 114-706.

  (a) Where a claimant, under a previous unreversed award of the State Board of Workmen's Compensation is, as a matter of law, totally incapacitated and entitled to compensation under Code (App.) 114-404 and the employer has ceased to make compensation payments, any hearing requested by the claimant is under Code (Ann.) 114-706, and the burden of showing a "change in condition" is on the employer.

On January 27, 1956, Raymond A. Davis and Complete Auto Transit, Inc., entered in to an agreement whereby it was stipulated that Davis received a compensable injury, as defined by the Workmen's Compensation Act, on November 14, 1955, and that he was entitled to compensation for a total incapacity to labor until compensation was terminated in accordance with the Workmen's Compensation Act. Such agreement was approved by the Workmen's Compensation Board on February 10, 1956, and, under the record in the present case, compensation was paid by the employer, a self-insurer, until October 4, 1957. Thereafter, on June 11, 1959, a hearing was held after which it was held in an award by the single director that the claimant was not entitled to compensation as a result of a change in his condition. The claimant appealed to the full board where the award of the single director was, in effect, affirmed. Thereafter, on appeal to the Superior Court of Fulton County, the award of the full board was reversed with direction that the case be "remanded to the State Board of Workmen's Compensation for further hearing and determination in accordance with the law." The employer now excepts to the judgment of the Superior Court of Fulton County.

The award of the State Board of Workmen's Compensation had the effect of denying the claimant compensation from October 4, 1957, though a previous award, based on an agreement, found the claimant 100% incapacitated from a compensable accident and no application for a change in such award was made prior to the request which resulted in the hearing and award in the case sub judice. Under Code 114-711 where an award is rendered, either on a hearing or on an agreement between the parties, the same is enforceable in the superior courts until a new award based on a change in condition is applied for on behalf of the claimant or the employer, or until on a hearing applied for by the claimant under Code (Ann.) 114-706, the employer shows a change in condition. See National Surety Corp. v. Nelson, 107 Ga. App. 588, 591 (109 S. E. 2d 309), it was said: "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." In Gen- eral Accident Fire &c. Corp. v. Teal, 100 Ga. App. 314 (111 S. E. 2d 113), Judge Townsend in a very thorough opinion discussed the hearings authorized by Code (Ann.) 114-706 and 114-709, and there, although the hearing director construed the hearing as one for a "change in condition" it was held to be a hearing authorized by Code (Ann.) 114-706 under which the burden was on the employer to show that it was entitled to stop paying compensation because of a change in condition." Properly construed, the hearing in the present case was under Code (Ann.) 114-706 and the burden was on the employer, not the claimant, to show a "change in condition," for the claimant was 100% incapacitated as a matter of law at the time the hearing was requested. The employer, without any agreement having been entered into, or any further award by the board, had stopped paying compensation which under a prior award it was bound to pay, and which was enforceable under Code 114-711 in the proper superior court. Therefore, since the burden was on the employer to show a "change in condition" in order to authorize an award in its behalf, either diminishing or completely stopping the compensation payments to the claimant, and the finding of fact by the full board, which in effect affirmed the single director, that the claimant had failed to carry the burden of proving a "change in condition" was unauthorized, the judgment of the Superior Court of Fulton County reversing such award was not error. The award, though possibly supported by some evidence--and this question is not passed upon--was based on an erroneous theory of law and was properly reversed by the superior court. See Borden Co. v. Dollar, 96 Ga. App. 489 (100 S. E. 2d 607).

Judgment affirmed. Felton, C. J., and Bell, J., concur.

1960