Opinion
38824, 38825.
DECIDED JUNE 22, 1961. REHEARING DENIED JULY 11, 1961.
Workmen's compensation. Greene Superior Court. Before Judge Carpenter.
Eugene Cook, Attorney-General, John S. Harrison, Assistant Attorney-General, for plaintiff in error.
James E. Hudson, Guy B. Scott, Jr., contra.
1. A hearing requested by the employer under Code Ann. § 114-706, standing alone, is not a claim until the employee affirmatively acts, either by filing a claim or by responding to the employer's request for hearing within the one-year limitation.
2. Where an employee receives no notice of a hearing requested by the employer, and himself files no claim within the one-year limitation, the State Board of Workmen's Compensation never acquires jurisdiction of any claim of the employee; and orders transferring the hearing to another county and dismissing the case for lack of prosecution, are nullities.
3. An order of the Board of Workmen's Compensation overruling a motion to dismiss an employee's claim on the ground that it was not filed within one year after his injury leaves the claim pending before the board for hearing just as though such notice had not been filed, and is not an appealable order under Code § 114-710.
DECIDED JUNE 22, 1961 — REHEARING DENIED JULY 11, 1961.
The allegation here was that the employee Cooper suffered a cerebral hemorrhage on June 3, 1955, while employed by the State Highway Department. On September 9, 1955, the State Highway Department filed with the State Board of Workmen's Compensation a report of injury plus a letter requesting that the matter be set for a hearing. The hearing was set on May 21, 1956, in Greensboro, Greene County, Georgia, the county in which the accident occurred. The employee Cooper made no appearance, and the State Board of Workmen's Compensation reset the hearing for July 5, 1956, at Athens, Georgia. There was again no appearance for the employee. The State Highway Department appeared and contended that the accident did not arise out of and in the course of employment. On July 24, 1956, the State Board of Workmen's Compensation entered an award dismissing the matter for lack of prosecution. On April 7, 1960, the employee Cooper filed a petition with the State Board of Workmen's Compensation setting out that the employee had no knowledge of the hearing set in Greene County on May 21, 1956; that he did not agree for the venue to be changed to Athens, Georgia; that he was not in fact living at that time at the Athens address to which the notice was sent and did not receive it; that the first notice he received in regard to any hearing was a copy of the award dated July 24, 1956; and that this award of dismissal was void. He prayed that "he be granted a hearing by the Board of Workmen's Compensation on his claim as originally filed in Greene County, and that said award of July 24, 1956, be set aside and declared null and void." On April 25, 1960, he filed an application for hearing form (opposed by the employer) requesting an opportunity to have his day in court. After a hearing before the full board, an order was entered on May 3, 1960, holding that the employee's application for a hearing was meritorious and that the claim would be set for hearing. A motion for dismissal had been filed at the above hearing by the employer on the ground that no claim was filed with said board within one year from the date of accident as required by Code § 114-305. The motion was denied, the case was considered on its merits and an award was made in favor of the employee on September 13, 1960. The case was then reviewed by the full board and the previous award was made the award of the full board on October 28, 1960. From this award, the employer appealed to the Superior Court of Greene County. After hearing argument, the Superior Court of Greene County entered an order affirming the award. To this order the employer excepts on the following grounds: (1) The Directors of the State Board of Workmen's Compensation acted without or in excess of their powers as there was an award of a director of said board denying compensation dated July 24, 1956, from which no valid appeal was taken. (2) There is not sufficient competent evidence in the record to warrant the Directors of the State Board of Workmen's Compensation in making the award complained of. (3) No application for hearing was filed by the claimant within one year from the date of the alleged injury and there was no appearance in the matter by claimant or his counsel within one year from the date of the alleged injury. Ground 2 was neither argued nor insisted on by the plaintiff in error and shall be treated as abandoned. The employee filed a cross-bill of exceptions on the grounds that the order of the board dated May 3, 1960, holding that the employee's application for a hearing was meritorious and that the claim would be set for hearing, was res judicata since it was not appealed from within 30 days, and that the court below erred in overruling his motion to dismiss that part of the employer's appeal which was based on the employee's alleged failure to file a claim within one year of the injury.
1. "The right to compensation under this Title shall be forever barred unless a claim is filed with the State Board of Workmen's Compensation within one year after the accident." Code § 114-305. The filing of a claim for compensation within the time limited is jurisdictional, and in the absence of a compliance with the statute, the board is without authority to grant compensation. Employers Mut. Liab. Ins. Co. v. Anderson, 96 Ga. App. 509 ( 100 S.E.2d 611); Attaway v. First Nat. Bank, 49 Ga. App. 270 ( 175 S.E. 258).
The law does not prescribe any particular form of claim for compensation to be filed by an injured employee. Folsom v. American Mut. Liab. Ins. Co., 48 Ga. App. 831 ( 173 S.E. 878). There being no necessity for any technical or formal filing of a claim, the mere writing of a letter to the board by a claimant setting forth sufficient facts with reference to the injury, and a request for hearing, is sufficient. Ayers v. Aetna Cas. c. Co., 71 Ga. App. 327, 328 ( 30 S.E.2d 811). Where the letter does not ask for relief or a hearing or action of any nature beyond the giving of information, it does not amount to the filing of a claim. Withers v. Fulwood, 89 Ga. App. 113, 115 ( 78 S.E.2d 865).
In this case the only action within one year after the accident was the employer's request for hearing under Code Ann. § 114-706. The employee took no affirmative action whatsoever toward filing any document with the board until more than twelve months after the injury.
Was the employer's action sufficient to authorize the board to find that the statute of limitation did not apply?
Code Ann. § 114-706 provides: "If the employer and the injured employee or his dependents fail to reach an agreement in regard to compensation under this Title, . . . either party may make application to the Board for a hearing in regard to the matters at issue, and for a ruling thereon. Immediately after such application has been received, the Board shall set a date for a hearing, which shall be held as soon as practicable, and shall notify the parties at issue of the time and place of such hearing." (Emphasis supplied).
In Metropolitan Cas. Ins. Co. v. Maloney, 56 Ga. App. 74 ( 192 S.E. 320), the following things were done within less than a year after the time of the accident: The adjuster for the insurer and employer made an application for a hearing; a time was set for the hearing; employee, by counsel, appeared in response to the usual legal notice; and the issues in the case were ripe for trial. This court held (p. 80): "When we consider § 114-305 in the light of § 114-706, supra, we think the word `claim' as used in the former is coextensive with `case', and under the facts of this case embraces the counter-claim of the employee as well as the claim of the employer. The `case' or `claim' of the employer and the appearance and answer of the employee were all filed within twelve months, and none of them had ever been withdrawn with the approval or consent of the court or the department . . . The case was begun within twelve months, was continued, was still pending, and while so pending it was reset and tried. The commissioner was therefore authorized to find that the statute of limitation did not apply." (Emphasis supplied).
"The one-year limitation is for the benefit of the employer and insurance carrier in order to prevent claims from being filed after long lapses of time." St. Paul-Mercury Indem. Co. v. Oakley, 73 Ga. App. 97, 101 ( 35 S.E.2d 562). If the employee, personally or by counsel, files his claim within this limitation, the jurisdiction of the board attaches as to this claim. London Guarantee c. Co. v. Boynton, 54 Ga. App. 419, 421 ( 188 S.E. 265). There is no limitation upon the time within which a claim must be heard and adjudicated. Ogden v. Clark Thread Co., 93 Ga. App. 227 ( 91 S.E.2d 191).
We are of the opinion that the General Assembly intended that the employee must affirmatively take some action within the one-year limitation. He may take such action either by filing a claim, or by responding to the employer's request for a hearing and thus convert the hearing into a claim. But a hearing requested by the employer, standing alone, is not a claim until the employee affirmatively responds to it by becoming a party within the one-year limitation.
Where the employer requests a hearing under Code § 114-706 and the employee has binding "notice" of this fact and affirmatively responds so as to convert the application for hearing into a claim within the one-year limitation, the board thereby acquires jurisdiction of the claim under Code § 114-305. Metropolitan Cas. Ins. Co. v. Maloney, 56 Ga. App. 74, supra.
In this case, the record shows and the employee contends that he had no notice as to any hearing until after the one-year limitation had lapsed. That being so, it cannot be said that the claimant has failed to file his claim within the one-year period because of any action on the part of the employer. Unlike the employee in the Metropolitan case, supra, he has not been prejudiced in any way by any action of the employer in this case. Where the employee received no notice as required under the law, the board does not have jurisdiction to render any order upon the merits of his claim and the issue is not ripe for trial. Bailey-Lewis-Williams of Ga. v. Thomas, 103 Ga. App. 279 (5) ( 119 S.E.2d 141).
While both this court and the Supreme Court have held that a liberal construction should be given to the Workmen's Compensation Act, we cannot rewrite it. The one-year limitation having been enacted for the purpose of preventing a prohibitive lapse of time, the teeth of this provision should not be extracted by judicial legislation. The most that can be said for this claimant is that he had a claim which the law allowed him to file within one year of the injury and that he failed to file it. The court erred in the award of compensation.
2. The employer also contends that the judgment below is erroneous for the reason that there was an award denying compensation rendered in Clarke County dated July 24, 1956, from which no valid appeal was taken. Having held that the board never acquired jurisdiction of any claim of the employee within the one-year limitation, the dismissal of July 24, 1956, for lack of prosecution was a nullity, as was the order transferring the case from Greene to Clarke County.
3. Turning now to the cross-bill of exceptions, it is contended by the employee that the board's order of May 3, 1960, overruling the employer's motion to dismiss on the ground that no claim was filed by the employee within one year of the injury, was res judicata since it was not appealed from within 30 days as required by Code § 114-710. Where a motion to dismiss a claim on account of some matter appearing upon the face of the proceedings is sustained by the board, a writ of error will lie from the order of the superior court judge affirming that decision. New Amsterdam Cas. Co. v. McFarley, 64 Ga. App. 465 ( 13 S.E.2d 588). However, an order of the board overruling the motion to dismiss leaves the alleged claim pending before the board for hearing just as though such motion had not been filed and is not an appealable order under Code § 114-710. Milledgeville State Hospital v. Clodfelter, 99 Ga. App. 49, 52 ( 107 S.E.2d 289).
Judgment reversed on the main bill of exceptions, and affirmed on the cross-bill. Felton, C. J., and Bell, J., concur.
ON MOTION FOR REHEARING
On the motion for rehearing, the employee contends that this court has misconstrued the case of Metropolitan Cas. Ins. Co. v. Maloney, 56 Ga. App. 74, supra, because of the following statement found in that opinion at page 79: "Thus, under our statute, where they fail to agree, and an employee has not made a claim, the employer is permitted to institute a proceeding to secure a determination of the employee's right to compensation," citing Ballenger v. Rock Run Iron Co., 166 Ga. 490 ( 143 S.E. 595) in support. The Ballenger case does not support this statement. It merely holds that where an employer has initiated a hearing under Code Ann. § 114-706, the employee cannot enjoin the proceeding in a court of equity, for the reason that he has an adequate remedy at law to object before the board to the jurisdiction of that body. The above statement in the Metropolitan Cas. Ins. Co. case was dictum and was not at all necessary to that decision. Accordingly, it is not controlling authority and will not be followed here.
Whatever the situations may be which would authorize an employer to make an application for a hearing under Code Ann. § 114-706, any application by him for a hearing, to have determined the amount of compensation, if any, to which the employee may be entitled, in no way relieves the employee from taking some affirmative action before the board within the one-year limitation.
Motion for rehearing denied. Felton, C. J., and Bell, J., concur.