Opinion
40721.
DECIDED JUNE 17, 1964.
Workmen's compensation. Richmond Superior Court. Before Judge Kennedy.
Woodruff, Savell, Lane Williams, John M. Williams, Raymond M. Dew, Jr., for plaintiffs in error.
Harris, Chance, McCracken Harrison, Henry T. Chance, Brown, Jeffries Mazursky, R. M. Jeffries, Jr., contra.
The evidence supported the finding that the one-year statute of limitation for the filing of a workmen's compensation claim had not been tolled; therefore the court erred in reversing the award of the board dismissing the claim as barred by the statute.
DECIDED JUNE 17, 1964.
The claimant, John Owens, Sr., sustained a head injury on August 29, 1957, while employed by plaintiff in error L. H. Simkins, d/b/a Simkins Contracting Company. On April 21, 1962, the claimant filed a claim with the State Board of Workmen's Compensation. At the hearing on November 6, 1962, the present plaintiffs in error made a motion to dismiss the claim on the ground that it was barred by the statute of limitation. On April 30, 1963, the deputy director issued an award denying the claim on that ground. On September 11, 1963, the full board adopted the award of the deputy director. On appeal to the superior court the award of the board was reversed on the ground that the evidence showed that the claimant was lulled into a sense of security by the employer so that the employer was estopped to assert the defense of the statute of limitation.
The evidence in the case showed that in the best opinion of the claimant's doctor he was competent after the injury; that the doctor had made a report of the injury to the insurer on their own standard surgeon's report form on September 7, 1957; that the employer had filled out and mailed to the insurer on September 30, 1957, a standard form of the employer's first report of injury; that on October 10, 1957, the claimant was released by the doctor to return to work; that the claimant worked for the employer, Simkins, for some 6 to 8 months after his injury; that on June 4, 1958, the State Board of Workmen's Compensation submitted a request to the carrier for an agreement as to compensation for temporary total disability (Form 16) and a medical report of the percentage of disability (Form 20a), to which request there was no response in the record; that the employer came to see the claimant in the hospital, was a "very good friend" of his, did everything he could for him and said that he would be taken care of whatever he might need, on which statement the claimant relied, thinking that he was a man of his word; that the employer paid his doctor's and hospital bills, as well as some wages after the injury; that Mr. Simkins had taken care of "as little bit as he could"; that the claimant didn't think he'd ever been to Mr. Simkins to ask him for anything at all; that he had held off so long in going to Mr. Simkins for money in spite of his promise to take care of him because he had some money of his own and didn't like to beg, and also because Mr. Simkins was such a bad paymaster and so slow to pay his bills that he tried to work for other employers when he could and he didn't think he would take care of him if he had gone to ask him to, from the way he acted; that after the claimant had spent all his own money to take care of himself and his family on his own, he decided that Mr. Simkins was not going to do whatever he had thought he was going to do and, on the advice of his friends, he consulted an attorney (which he subsequently learned was Mr. Simkins' attorney) some two or three years prior to the hearing; that the attorney advised him not to file a claim, but that he later consulted an attorney in his own town.
Plaintiffs in error except to the judgment of the superior court overruling the award of the board.
"The filing of a workmen's compensation claim within one year after the accident, as required by Code § 114-305, is jurisdictional; but if fraud practiced by the employer or his insurance carrier prevents the employee filing his claim the statute of limitation will be tolled, provided the employee acts promptly upon discovery of the fraud. Indemnity Ins. Co. v. O'Neal, 104 Ga. App. 305, 306 ( 121 S.E.2d 689). Fraud which will relieve the bar of the statute of limitation must be such as debars or deters the plaintiff from his action. That a plaintiff fails to sue on account of a mere uncertain and indefinite understanding, based on no consideration, would not be such fraud as would relieve the bar of the statute." Fidelity c. Co. of N. Y. v. Bishop, 108 Ga. App. 422 ( 133 S.E.2d 51), and cases cited.
Since there was evidence supporting the board's finding that the claimant was competent following the injury, we will not consider this issue in determining whether or not the claimant was defrauded of his right to file claim within the one-year limitation, although there was evidence from which it might have been found that he was incompetent at least some of the time.
There are several evidentiary facts which, it is contended, tolled the statute of limitation. One of these can be disposed of by the proposition that the time for filing the claim is not tolled by the voluntary payment of wages or doctor's and hospital bills by the employer. Withers v. Fulwood, 89 Ga. App. 113, 115 (2) ( 78 S.E.2d 865), and citations. The board's ignored request to the carrier for certain forms was likewise insufficient to relieve the bar of the statute. The employee must affirmatively take some action within the one-year limitation, which he may do either by filing a claim, or by responding to the employer's request for a hearing and thus convert the hearing into a claim. State Hwy. Dept. v. Cooper, 104 Ga. App. 130, 134 ( 121 S.E.2d 258). The employer complied with his responsibility under the Act by filing with the insurance carrier the employer's first report of injury. There was certainly no legal obligation on his part to file a claim for the employee. Nor does it appear that the claimant made any further effort to obtain the requested forms or take any appreciable affirmative action for almost four years thereafter, at which time he finally filed his claim — almost five years after the injury. Even after consulting two different attorneys regarding a possible claim, he waited about two years before filing his claim.
Finally, the claimant contends that his friendship with the employer, plus the employer's oral statement that the employee would be taken care of whatever he might need, gave him the right to rely on the employer to file his claim for him, or possibly to take care of his financial needs for an indefinite period of time, perhaps for the rest of his life. In spite of the claimant's testimony referring to the employer as his "very good friend," on whose statement he relied, etc., there was ample evidence that he did not actually rely on this promise, but rather tried to get by with his own money for as long as he could and avoided asking him for money or even working for him as much as possible because he was so bad about paying his bills and he didn't think he would take care of him. Even if he had relied on this statement, however, the evidence shows that there was such a mere uncertain and indefinite understanding, based on no consideration, as would not amount to fraud which would debar or deter him from filing a claim within the one-year limitation.
The board's award dismissing the claim on the ground of the statute of limitation was supported by competent evidence and no error of law appears; therefore the court erred in reversing the award.
Judgment reversed. Frankum and Pannell, JJ., concur.