Opinion
56611.
SUBMITTED SEPTEMBER 13, 1978.
DECIDED OCTOBER 23, 1978. REHEARING DENIED NOVEMBER 7, 1978.
Workers' compensation. Fulton Superior Court. Before Judge Alverson.
Patton Hoyt, Jack R. Hancock, for appellant.
Hopkins Gresham, H. Lowell Hopkins, Patrick J. McKenna, for appellee.
While the filing of a workmen's compensation claim within one year of an alleged accident is jurisdictional, the time may be waived, or the employer may be estopped to urge the statute of limitations. Where the evidence demands a finding that the claimant has been injured by accident arising out of and in the course of his employment, where he is thereafter promised benefits by a vice president of the self-insured employer, his hospital bills are paid, and he receives a check marked for and admittedly paid as compensation benefits, and there is testimony that the claim was not filed because the claimant believed the statements of the company official, the evidence demands the conclusion that intentionally or not, the employer misled the claimant, thereby inducing him to postpone filing a claim until after the statutory period had run, and is in consequence estopped to insist upon its bar.
SUBMITTED SEPTEMBER 13, 1978 — DECIDED OCTOBER 23, 1978 — REHEARING DENIED NOVEMBER 7, 1978 — CERT. APPLIED FOR.
In this workmen's compensation case the administrative law judge, finding the employer estopped to insist on dismissal of the claim as not having been filed within 12 months of the injury, awarded compensation. The full board adopted the law judge's findings of fact but, disagreeing with the conclusions of law based thereon, dismissed the claim because not timely filed. We are thus presented with a decision as to what conclusion of law is to be drawn from certain agreed-on facts.
The facts are as follows: James, the employee, was thrown from the sleeper of a truck cab and injured when it ran off the road on April 26, 1975. He suffered head and back pains, and was hospitalized in St. Paul, Minnesota, from April 30 to May 8. On return to Atlanta he was examined by various specialists in June, 1975, and received a diagnosis of neuritis along with probable lumbosacral sprain and "pinched nerve problem."
The self-insured employer paid the hospital bills incurred by the employee. In addition it tendered him a check in the sum of $500 on June 13, 1975, which was marked "Workmen's Compensation." In addition, when the employee's back continued to hurt him, an official of the employer assured him that he would be sent for treatment to Johns Hopkins Hospital.
In November the claimant was still having back trouble. He was en route to Birmingham for treatment when he sustained a second injury in a train-car collision which put him in the hospital off and on until June, 1976. This latter accident was responsible for a head injury which resulted in some amnesia concerning its immediate surrounding circumstances. The law judge found as a fact that the concussion resulting from the train wreck resolved itself within a 30-day period but that he back injuries from the prior accident continued.
Based on these accepted facts the full board denied compensation and dismissed the claim as not filed within the applicable twelve-month period, citing Hartford Acc. c. Co. v. Snyder, 126 Ga. App. 31 ( 189 S.E.2d 919) (1972) and Employers Ins. of Wausau v. Nolen, 137 Ga. App. 205 ( 223 S.E.2d 250) (1976).
In the Snyder case it was held (p. 37) that even if the claimant had been assured that medical bills would be paid and that he would be given a compromise settlement in addition thereto this "afforded no basis for tolling the statute as to the time for filing the claim, and could not have justified a different award. . ." and cases are cited holding that mere payment of medical bills, or the making of an unapproved settlement, or a statement by the employer that the employee would be taken care of, are not separately sufficient to toll the statute. In the Nolen case, however, it was held that the full board acted properly in reversing the administrative law judge who had denied compensation based on delay in filing the claim, where the facts showed the parties were aware of the accident and claimed disability and the claimant was led to believe that the employer had committed itself to liability, the question at issue being amount. The appellant further cites U.S. Cas. Co. v. Owens, 109 Ga. App. 834 ( 137 S.E.2d 543) (1964) to the effect that "a mere uncertain and indefinite understanding, based on no consideration, ... would not amount to fraud which would debar or deter him from filing a claim within the one-year limitation" and urges that this would apply to any promises to send the employee to Johns Hopkins for further treatment.
The record shows that the claimant's contacts with his employer were through a union official and a vice president of the corporation, that he was assured by both that his claim was being taken care of, that in the early stages bills were in fact paid, and that he received a check from the employer designated as workmen's compensation. It is simply unrealistic to contend that such actions and promises on the part of those who represent authority to a semi-skilled laborer and lull him into believing that no further affirmative action on his part is needed do not affect his actions in prosecuting his claim. The record shows that from November, 1975 on, the claimant was suffering both from a head injury (not employment connected, but sustained on his way to a hospital for back treatment) and in April, 1975, injury to his back which was indisputably employment connected. As to why he did not file a claim between April and November, 1975, he testified it was because he "kept thinking Mr. Crane (the vice president) was telling me the truth about going to the hospital, at Johns Hopkins Hospital." Nothing casts the least doubt on this explanation. Crane admitted having brought the matter up. The administrative law judge hearing the case made a finding that the payment of hospital bills, the promises of further hospitalization and the receipt of a check marked as workmen's compensation taken together "caused the claimant in this case not to file a claim within one year. . . it is apparent that the actions between the parties and the payment of some weekly compensation benefits misled the claimant, whether intentionally or not, and prevented his filing a claim within the statutory period, and therefore the claim is within the jurisdiction of the Board for adjudication." This is as denominated by the board a conclusion, but it is one demanded by the evidence.
The claimant, should not have been dismissed as barred by the statute of limitations. The judgment of the superior court is therefore reversed with direction to remand the case to the board for consideration of disability benefits, if any.
Judgment reversed with direction. Smith and Banke, JJ., concur.