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O.C.G.A. § 34-9-351 — Definitions | Georgia Code
O.C.G.A. § 34-9-351 (2018) Copy Cite Official Site Syfertize CourtListener Scholar Amendments

TITLE 34 LABOR AND INDUSTRIAL RELATIONS

Section 9. Workers' Compensation, 34-9-1 through 34-9-432.

ARTICLE 9 SUBSEQUENT INJURY TRUST FUND

34-9-351. Definitions.

As used in this article, the term:

  1. "Merger of an injury with a preexisting permanent impairment" describes or means that:
    1. Had the preexisting permanent impairment not been present, the subsequent injury would not have occurred;
    2. The disability resulting from the subsequent injury in conjunction with the preexisting permanent impairment is materially, substantially, and cumulatively greater than that which would have resulted had the preexisting permanent impairment not been present, and the employer has been required to pay and has paid compensation for that greater disability; or
    3. Death would not have been accelerated had the preexisting permanent impairment not been present.
  2. "Permanent impairment" means any permanent condition due to previous injury, disease, or disorder which is, or is likely to be, a hindrance or obstacle to employment or to obtaining reemployment if the employee should become unemployed.

(Code 1933, § 114-911, enacted by Ga. L. 1977, p. 608, § 1.)

JUDICIAL DECISIONS

Board erred in requiring that merger be established first under O.C.G.A. § 34-9-351(1)(A) as a condition precedent to determining the existence of a merger under subparagraph (1)(B) and in failing to consider subparagraph (1)(B) of that section. Brockway Std. v. Harper, 200 Ga. App. 250, 407 S.E.2d 475 (1991).

Focus of O.C.G.A. § 34-9-351 is not merely the cumulative effect of the injuries but requires that the disability resulting from the subsequent and preexisting injuries be "materially, substantially, and cumulatively greater than that which would have resulted had the preexisting permanent impairment not been present." JPS Carpets v. Troupe, 203 Ga. App. 602, 417 S.E.2d 333, cert. denied, 203 Ga. App. 906, 417 S.E.2d 333 (1992).

Employee's first injury must aggravate the degree of permanent partial disability resulting from a second injury in order for there to be a merger between the two injuries rather than considering whether the disability to an employee's body as a whole and/or the employee's state of employability has been rendered materially, substantially, and cumulatively greater due to the prior injury. JPS Carpets v. Troupe, 203 Ga. App. 602, 417 S.E.2d 333, cert. denied, 203 Ga. App. 906, 417 S.E.2d 333 (1992).

Review of lower court's finding of fact.

- Full board is a finder of fact which is entitled to make independent findings of fact and conclusions of law even though the facts are the same but the conclusions different. A finding of fact, that the claimant did not establish merger made by the full board when supported by any evidence, is conclusive and binding upon the superior court as well as the Court of Appeals. Georgia Subsequent Injury Trust Fund v. Brockway Std., 204 Ga. App. 519, 419 S.E.2d 755 (1992).

Cited in Subsequent Injury Trust Fund v. Knight Ridder Newspapers-Macon Tel. & News, 203 Ga. App. 458, 416 S.E.2d 887 (1992); Subsequent Injury Trust Fund v. Hanson Indus., 211 Ga. App. 700, 440 S.E.2d 89 (1994).

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This Georgia Code resource is curated by Graham Syfert, a personal injury and workers' compensation attorney admitted in Georgia (State Bar of Georgia No. 881027, since 2006) and Florida. Attorney Syfert regularly works with Title 34 in the context of Georgia workers' compensation and represents clients throughout Northeast Florida and South Georgia. For legal consultation, call 904-383-7448.