Opinion
23740.
06-19-1934
ATTAWAY v. FIRST NAT. BANK.
Ben T. Blackmon and John W. Bolton, both of Atlanta, for plaintiff in error. Brandon, Hynds & Tindall, of Atlanta, for defendant in error.
Casemaker Note: Portions of this opinion were specifically rejected by a later court in 232 S.E.2d 111
Casemaker Note: Portions of this opinion were specifically rejected by a later court in 397 S.E.2d 739
Syllabus by Editorial Staff.
Filing of compensation claim within one year after accident is jurisdictional, and limitation is not tolled by claimant's ignorance of this requirement or by employer's gratuitous payment of contributions for claimant's support within one year prior to filing of claim (Laws 1920, p. 181, § 25, as amended by Laws 1925, p. 284, § 2).
Statutory provision authorizing Industrial Relations Department to review any award or settlement at any time held inapplicable to prevent bar of claim filed more than a year after accident, where payments to claimant by employer had been made as a gratuity, and not as a settlement or consideration for release (Laws 1920, pp. 178, 191, §§ 19, 45; p. 181, § 25, as amended by Laws 1925, p. 284, § 2).
Error from Superior Court, Fulton County; G. H. Howard, Judge.
Proceeding under the Workmen's Compensation Act by J. F. Attaway, claimant, opposed by the First National Bank, employer. To review a judgment of the superior court affirming an award of the Department of Industrial Relations dismissing his claim, claimant brings error.
Affirmed.
Ben T. Blackmon and John W. Bolton, both of Atlanta, for plaintiff in error.
Brandon, Hynds & Tindall, of Atlanta, for defendant in error.
Syllabus OPINION.
JENKINS, Presiding Judge.
1. Section 25 of the Workmen's Compensation Act provides that: "The right to compensation under this Act shall be forever barred, unless a claim be filed with the Industrial Commission [now the Department of Industrial Relations] within one year after the accident." Ga. Laws 1920, pp. 167, 181, Ga. Laws 1925, pp. 282, 284, § 2, Michie's Code, § 3154(25). This provision operating as a "limitation of the liability itself as created, and not of the remedy alone" (Seaboard Air-Line Ry. v. Brooks, 151 Ga. 625, 627, 107 S.E. 878, 879; Porter v. Liberty Mutual Ins. Co., 46 Ga.App. 86, 89, 166 S.E. 675), "the filing of the claim for compensation with the Industrial Commission within the time prescribed is jurisdictional, and, unless this is done, the commission is without authority to grant the injured employee compensation." United States Casualty Co. v. Smith, 162 Ga. 130, 133, 133 S.E. 851, 853; Bussey v. Bishop, 169 Ga. 251, 150 S.E. 78, 67 A.L.R. 287. The record in the instant case affirmatively showing that the claimant was injured on June 15, 1931, but that he did not file his claim with the Department of Industrial Relations until February 4, 1933, his ignorance of the statutory requirement, or the gratuitous payment by his employer of contributions for the support of himself and his family within one year prior to the filing of his claim, would not operate to toll the statute, and the department properly dismissed his claim.
2. While section 45 of the Workmen's Compensation Act (Laws 1920, p. 191) authorizes the Department of Industrial Relations "at any time [to] review any award or any settlement made between the parties and filed with the [department]," upon "its own motion before judicial determination or upon the application of any party in interest on the ground of a change in condition," and while section 19 of the act (Laws 1920, p. 178) requires that a copy of any settlement agreement shall be filed by the employer with the department, these provisions have no application to prevent the bar of the instant claim, since it is shown by the record that the injured employee never filed any application to "review any award or any settlement made between the parties," but merely a claim, and that the payments made to the employee by the employer after the injury were not made as a "settlement" or purported settlement, but merely as a gratuity without obligation or as a consideration for any release by the employee, for his financial assistance in his sickness from tuberculosis and possible disease of the gall bladder. The evidence does not clearly disclose and the department did not determine as to whether this disability arose prior to or independently of the injury; and it is unnecessary to consider this question.
Judgment affirmed.
STEPHENS and SUTTON, JJ., concur.