Opinion
42555.
ARGUED JANUARY 10, 1967.
DECIDED MARCH 15, 1967.
Workmen's compensation. Fulton Superior Court. Before Judge Shaw.
Powell, Goldstein, Frazer Murphy, Frank Love, Jr., Warner R. Wilson, Jr., for appellants.
Archer, Patrick Sidener, Griffin Patrick, Jr., for appellee.
An application for review of any award or settlement made between the parties must be filed within two years from the date the State Board of Workmen's Compensation is notified of final payment of the claim.
ARGUED JANUARY 10, 1967 — DECIDED MARCH 15, 1967.
The appellee, hereinafter referred to as claimant, received an injury which arose out of and in the course of his employment on March 16, 1963. A standard form for agreement as to compensation was filed with and approved by the State Board of Workmen's Compensation. On May 9, 1963, the board approved a supplemental memorandum agreement which stated that the claimant returned to work on April 29, 1963, and liability for temporary total disability ceased on that date. A final settlement receipt form was also filed with the board on May 9, 1963. On September 2, 1965, the claimant filed for a hearing. The appellant, hereinafter referred to as employer, made a motion that the claimant's application for a hearing be dismissed. The motion was overruled and the board issued an award holding that because of the compensable injury of March 16, 1963, the claimant was totally disabled for a period of time in 1965. The award of the board was affirmed by the superior court and the employer appeals.
1. The employer contends that the claimant's application for a hearing should have been dismissed because it was filed on September 2, 1965, which was not within two years from the date the supplemental agreement and final settlement receipt were filed with the board. Code § 114-709, as amended (Ga. L. 1937, pp. 230, 233; Ga. L. 1937, pp. 528, 534, Ga. L. 1943, pp. 167-169), provides: "Upon their own motion before judicial determination or upon the application of any party in interest on the ground of a change in condition, the State Board of Workmen's Compensation may, within two years from the date that the Board is notified of the final payment of claim, review any award or any settlement made between the parties and filed with the Board, and, on such review, may make an award ending, diminishing or increasing the compensation previously awarded or agreed upon, subject to the maximum or minimum provided in this Title, and shall immediately send to the parties a copy of the award. No such review shall affect such award as regards any moneys paid." (Emphasis supplied.)
The question for determination is whether the filing of the supplemental agreement and the final settlement receipt constituted notice to the board of the final payment of the claim as provided in the above quoted statute. The question is answered in the affirmative. This case is controlled by Priest v. Exposition Cotton Mills, 86 Ga. App. 301 ( 71 S.E.2d 743) in which it was held that an application for a hearing which was filed more than two years from the date of the filing of a supplemental agreement and final settlement receipt was barred.
Nothing held herein is in conflict with Taylor v. Sunnyland Packing Co., 112 Ga. App. 544 ( 145 S.E.2d 587), which dealt primarily with whether the filing of a supplemental return to work agreement constituted a change in claimant's condition. Whereas, in the case sub judice, as it was in the Priest case, the issue before the court is whether the filing of the supplemental agreement and final settlement receipt was sufficient to comply with the condition precedent prescribed in Code Ann. § 114-709 and thereby cause the two year limitation period to begin.
The judge of the superior court erred in affirming the award of the State Board of Workmen's Compensation.
Judgment reversed. Frankum, P. J., and Deen, J., concur.