
    Hay v. Woosley et al.
    
    
      (Nashville,
    
    December Term, 1939.)
    Opinion filed February 3, 1940.
    
      Edwin T. Nance and B. B. Jackson, both of Shelby-ville, for plaintiff.
    Ben Kingree, Jr., of Shelbyville, for defendants.
   Mr. Justice Chambliss

delivered the opinion of the Court.

This is a petition brought under Section 6892(b) of the Code seeking an increase in the compensation which had been allowed petitioner in a former proceeding in which he had been awarded a judgment for permanent partial disability of a leg to the extent of 30 per cent thereof.

The defendants filed a special plea of res adjudicata to the petition coupled with an answer. The case was heard by the Circuit Judge upon these pleadings and a written stipulation reading as follows:

“It is stipulated by and between Counsel in open Court that the defendant partnership paid into the hands of the Clerk of the Circuit Court the full amount of the judgment rendered against them, being $266.40, and said amount of said judgment was received by the petitioner and his Counsel on April 24, 19i3'9, the amount of $266.40 being paid by tbe defendant partnership on April .18, 1939.”

Tbe trial Judge sustained tbe plea and dismissed tbe snit and Hay bas appealed. There is no bill of exceptions in tbe record but tbe judgment of tbe trial Judge contains a full recital of tbe necessary facts which appear from tbe Court records and tbe stipulation among other of these records being tbe opinion of this Court in tbe former trial of tbe case, it appearing that tbe case was appealed to this Court and here modified as to amount and affirmed and remanded for enforcement of tbe award, etc. We find no error in tbe action of tbe trial Judge in dismissing this petition.

In tbe first place, as insisted by counsel for tbe employer, whatever may have been tbe intention of petitioner, we are not of opinion that on tbe face of tbe petition it is satisfactorily shown or charged that petitioner bad suffered any increase of incapacity since the determination of bis original action. This is, of course, an absolute essential of tbe right to have an additional award under Code, Section 6892. This is well settled. Hartford Hosiery Mills v. Jernigan, 149 Tenn., 241, 259 S. W., 546; Crane Enamelware Co. v. Dotson, 159 Tenn., 561, 20 S. W. (2d), 1045. Petitioner proceeds in bis petition to state with much emphasis tbe facts as to bis physical condition and suffering, but we find no express or • explicit charge that this condition is worse than it was when tbe decree was rendered in tbe original case or that be is now any more incapacitated than be alleged himself then to be. But if tbe petition was sufficient in this regard on its face, we think petitioner may not recover for tbe further reason that it is apparent that a lump settlement was made with him at tbe conclusion of the original litigation. This clearly appears from the stipulation quoted above. Code, Section 6892, under which petitioner seeks recovery, and which is the only provision in the Compensation Act providing for a reopening and re-determination of an award (Shockley v. Morristown Produce & Ice Co., 171 Tenn., 591, 106 S. W. (2d), 562), reads as follows:

“Lump payments are final; periodical payments for more than six months may be modified, how. — All amounts paid by employer and received by the employee or his dependents, by lump sum payment, shall be final, but the amount of any award payable periodically for more than six months may be modified as follows,” etc.

A final judgment in a compensation case is final, as in any other case, unless the petitioner seeking to reopen the case can bring himself within the terms of this Section. Crane Enamelware Co. v. Dotson, supra. This was the rule applied by the trial Court in the instant case in sustaining the plea of res adjudicata, it appearing without dispute that- at the conclusion of the original suit for compensation a “lump sum payment” of $266.40, the full amount of the judgment rendered, had been paid by the same defendants to the petitioner on April 24, 1939, prior to the filing of the present petition on the 18th day of July, 1939.

It is said in this Court for petitioner that the opinion of this Court on the former hearing recognized in terms the right of petitioner to bring action later under Section 6892, if his condition should justify it, and this quotation is made from that opinion: “The employee can make further application to the Court below. ’ ’ And it is said that the compensation awarded in this case was for a longer period than six months and is, therefore, not final. The theory of petitioner’s counsel seems to be that since the original award was payable periodically, for more than six months, it is subject to modification upon a proper showing, despite the fact that it was settled in a lump sum payment. It is true that the opinion of this Court making the award, after reciting that Hay had been paid compensation theretofore for twenty-seven weeks, did provide that, “his compensation for the loss of the use of his leg will, therefore, continue for only fifty-five and one-half weeks longer.” Now fifty-five and one-half weeks is more than six months, and if petitioner had not made a lump sum settlement, but had proceeded under the weekly payment plan on the basis awarded, he would then have been entitled to have brought his petition for modification “at any time after six months from the date of the award.” But we find no support for the claim that after one has accepted a “lump sum payment,” regardless of the amount, he can proceed under this statute for a modification of the original award. The language of the statute is so plain in this regard that this Court has not been called upon directly to construe it, so far as our decisions show, but in Phillips v. Memphis Furniture Mfg. Co., et al., 168 Tenn., 481, at page 484, 79 S. W. (2d), 576, in the course of an opinion dealing with several phases of the law of this Code Section, it is remarked in passing that the language above quoted makes “final all lump-payment awards.”

The judgment must be affirmed.  