Opinion
47107.
ARGUED APRIL 6, 1972.
DECIDED APRIL 19, 1972. REHEARING DENIED MAY 5, 1972.
Workmen's compensation. Washington Superior Court. Before Judge McMillan.
Savell, Williams, Cox Angel, John M. Williams, Elmer L. Nash, for appellants.
Sharpe, Sharpe, Hartley Newton, T. Malone Sharpe, for appellee.
1. In this workmen's compensation case the defendant insurance carrier was estopped to plead the statute of limitation, although the claim was filed six days late, where the delay was procured by its representations that payment would be made when the total medical expenses were ascertained, accompanied by directions to the claimant, who was also an officer of the insured, that no claim should be filed.
2. The evidence was amply sufficient to support the findings of coverage and compensability.
3. It was proper to allow a witness who was president of the corporate employer defendant to remain in the courtroom during the taking of testimony.
4. The employer is entitled to credit against the award for those weeks during disability in which the claimant was paid her full wages.
ARGUED APRIL 6, 1972 — DECIDED APRIL 19, 1972 — REHEARING DENIED MAY 5, 1972.
The claimant Stella Studdard was an officer and stockholder of the employer corporation and also an employee supervisor at a salary of $100 per week. On November 17, 1969, she sustained an accident in the course of her employment which resulted in a broken hip and subsequent surgery. Wayne Lewis, the local agent who had written the workmen's compensation policy for the insurer appellant, Cotton States Insurance Co., investigated the claim as the company would take care of everything. Later he and Lawson Cox, an attorney for the insurer, entered into negotiations for settling the claim, a step which had been delayed because Lewis advised the claimant it would be better to make one settlement after all the medical bills were in and she was discharged. By August or September, 1970, it appeared that this had taken place; the Studdards, Cox and Lewis agreed on a total amount and the insurer drew up a covenant not to sue and settlement agreement which they tendered to Mrs. Studdard. Just at that time, however, Mrs. Studdard was informed by her physician that it did not appear to him that the fractured hip had healed properly and he wished to perform another operation. Mrs. Studdard then informed Lewis that she could not sign the agreement because there would be further medical bills, to which he responded that he was glad she had found it out in time. No indication was made that the insurer intended to back away from the position taken, although on September 3, 1970, Mrs. Studdard received a letter from Roscoe Lowery, Chairman of the State Board of Workmen's Compensation, informing her that in response to an inquiry it appeared the insurance company was unwilling voluntarily to settle and he enclosed claim forms. On November 19, 1970, the claimant was informed that unless she took the amount proviously offered she would receive nothing as the statute of limitation had run. By letter of November 23 to the board she requested a hearing on the matter.
The deputy director found against the appellant's plea of statute of limitation based upon its course of conduct with the claimant and awarded total disability payments and medical expenses. This award has been affirmed by the full board and by the Judge of the Superior Court of Washington County on appeal.
1. Under Code § 114-305, unless the claim is filed within one year after the accident it is barred. The statute is tolled upon a showing that fraud was practiced upon the employee which prevented his filing the claim within the statutory time, and that he acted promptly upon the discovery of the fraud. Welchel v. American Mut. Liab. Ins. Co., 54 Ga. App. 511 (3) ( 188 S.E. 357); Indemnity Ins. Co. v. O'Neal, 104 Ga. App. 305 (2) ( 121 S.E.2d 689).
Also, the failure to file a claim within the period of limitation may be waived. Thigpen v. Hall, 46 Ga. App. 356 ( 167 S.E. 728); St. Paul-Mercury Indem. Co. v. Oakley, 73 Ga. App. 97 ( 35 S.E.2d 562); Maryland Cas. Co. v. Smith, 122 Ga. App. 262 ( 176 S.E.2d 666).
We note that the award of the board was based on the tolling of the statute of limitation because of the affirmative acts of and promises to the claimant by the representatives of the insurer. The deputy director pointed out that Mrs. Studdard had an especial right to rely on directions given to her not to file the claim if such directions were received in her capacity as an officer of the employer corporation. As an insured, the employer had a duty to cooperate with its insurer. And it is expecting too much of human nature to suppose that Mrs. Studdard could distinguish between the insurer's contractual relationship with her as an agent of the employer and its relation with her as an employee claimant. The award of the board is thus impliedly at least based on actionable fraud. The affirmance by the Judge of the Superior Court of Washington County by-passes the question of actual deception and artifice in the following finding: "`Waiver' involves voluntary and intentional relinquishment of a known right. At the time the representations of payment were made by the carrier's agent the claimant relied on them as a waiver of the carrier's rights. After the one-year limitation expired, claimant was justified in expecting the carrier to stand by its commitment. Carrier waived the limitation prior to the expiration of one year, and is estopped to reclaim the right that was relinquished by it."
Since there was in this case a clear waiver, as observed by the judge on appeal, it is unnecessary to decide whether the evidence is sufficient to support a finding of actual artifice or deceit. The company accepted liability and prevented the claimant from taking action through the compensation board. It waited out the last month or so of the limitation period (after Mrs. Studdard had discovered that there would be another operation and increased medical liability) until two days after the statutory cut-off date, and then informed the claimant that she must accept the settlement regardless of subsequent surgery or she would get nothing. An inference is authorized that the information that claimant could no longer rely on the statement that full settlement would be made upon her medical discharge could have been passed on to her as easily two days before the statutory ban as two days afterward. As stated in Young v. Sonoco Products Co., 210 S.C. 146 ( 41 S.E.2d 860): "The conduct of defendant and its insurance carrier may be such as to estop them from presenting the statutory limitation as a defense in bar of the claim for compensation, if the effect of such conduct was to mislead or deceive claimant, whether intentional or not, and induce him to withhold or postpone filing his claim petition until more than a year had elapsed from the occurrence of the accident." This conduct at the very least constitutes an estoppel on the part of the company to insist upon the bar of the statute of limitation. Although the bar is jurisdictional ( Employers Mut. Liab. Ins. Co. v. Anderson, 96 Ga. App. 509 ( 100 S.E.2d 611)), this is the type of jurisdiction which, like jurisdiction of the person, may be waived by the conduct of the party otherwise entitled to insist upon it, it being personal to such party, or his conduct may be such, as here, to estop him from insisting upon it. See also Stanley v. Sterling Mut. Life Ins. Co., 12 Ga. App. 475 (2) ( 77 S.E. 664).
2. The record shows clearly that when the employer, formerly a partnership, was incorporated, notice of such fact was given the insurer which continued to accept policy premium payments and which apparently issued an indorsement dated March 31, 1970, effective March 1, 1970, in the corporate name. No objection was made to this testimony as secondary evidence. There was no such failure of proof of coverage of the corporate employer as would void the award.
3. Error is enumerated on the refusal of the hearing director to sequester the witness Bobby Studdard. Such rulings are usually within the discretion of the trior of facts. See annotations to Code § 38-1703. Further, this witness, as the president of the defendant corporate employer was presumptively entitled for this reason also to be present at the hearing.
4. It is well settled that an employee who is entitled to compensation for injury but who has during a part of the entitlement time returned to work for the same employer and received the same or higher wages is to have deducted from the award the weeks during which such payment was received. Complete Auto Transit, Inc. v. Davis, 106 Ga. App. 369 ( 126 S.E.2d 909); McKinley v. Employers Liability Assurance Corp., 108 Ga. App. 181 ( 132 S.E.2d 545); Bell v. Liberty Mut. Ins. Co., 108 Ga. App. 173 ( 132 S.E.2d 538). The question remains as to whether this rule applies where, although the claimant is totally disabled and does not report to work at all, her full wages are in fact paid and received by her for a part of the otherwise compensable time, whether in such event the employer and insurance carrier are entitled to take credit for the weeks in which these payments were made. The rule in most jurisdictions is that where an employee is paid his regular wage although he does no work at all, it is a reasonable inference that the payment is in lieu of compensation and that the employer is therefore entitled to credit for the weeks during which the full salary was paid. Mercury Aviation Co. v. Ind. Acc. Comm., 186 Cal. 375 ( 199 P. 508); Tulley v. Am. Rad. Stand. San. Corp., 8 App. Div. 2d 564 ( 183 NYS2d 688); Moss v. City of Philadelphia, 200 Pa. Super. 317 ( 228 A.2d 47); Larson, Workmen's Compensation, (2d Ed.) p. 68, § 57.42.
The judgment of affirmance is hereby affirmed in part and reversed in part, with direction that the defendant employer be given credit for payment of weekly compensation benefits as to all weeks after November 17, 1969, during which the claimant received her full salary. Clark, J., concurs. Eberhardt, P. J., concurs in the judgment only.