Summary
In Mallory v. American Cas. Co., 114 Ga. App. 641 (152 S.E.2d 592), it was held: "Where claimant after injuring his back at work continued to work until he was forced to cease work because of aggravation of the original injury, the statute of limitation runs from the date the employee was forced to cease work if the aggravation of the original injury was attributable to the continued employment."
Summary of this case from Blackwell v. Liberty Mut. Ins. Co.Opinion
42171.
ARGUED JULY 8, 1966.
DECIDED NOVEMBER 18, 1966. REHEARING DENIED NOVEMBER 18, 1966.
Workmen's compensation. Fulton Superior Court. Before Judge Alverson.
Harrison, Martin Childs, John S. Harrison, for appellant.
Smith, Ringel, Martin Lowe, Williston C. White, for appellees.
Where claimant after injuring his back at work continued to work until he was forced to cease work because of aggravation of the original injury, the statute of limitation runs from the date the employee was forced to cease work if the aggravation of the original injury was attributable to the continued employment.
ARGUED JULY 8, 1966 — DECIDED NOVEMBER 18, 1966 — REHEARING DENIED NOVEMBER 18, 1966 — CERT. APPLIED FOR.
In this workmen's compensation case the evidence showed that claimant suffered a back injury at work in June, 1963. After convalescing several days, he returned to work, and continued to work irregularly up until May 26, 1964. Claimant's work required much bending and the lifting of poundages in excess of the recommendations of the doctor treating him for the original injury. Claimant testified that this activity at work excited the pain symptoms of the original injury. These symptoms increased in severity, and finally claimant became unable to continue the work.
This claim was filed in September, 1964. The Workmen's Compensation Board, after stating in its award, "There is no evidence of any accident after June of 1963," found that the statute of limitation had run as to the original injury and dismissed the claim. Claimant took this appeal from the judgment of the superior court affirming the board's award dismissing the claim.
1. The superior court, to which this case was appealed under the provisions of Code § 114-710, had jurisdiction. See Fidelity Cas. Co. of N. Y. v. Whitehead, 114 Ga. App. 630.
2. The filing of a claim for workmen's compensation within the time required by Code § 114-305 is jurisdictional, and where the claim is not filed in compliance with this section, the claim is barred unless it be shown that some fraud was practiced upon the employee that prevented his filing within the statutory time. Indemnity Ins. Co. v. O'Neal, 104 Ga. App. 305, 306 (1) ( 121 S.E.2d 689).
In order to relieve the bar of the statute, the fraud must be such as debars or deters the employee from bringing his claim; if he fails to file on account of "a mere uncertain and indefinite understanding, based on no consideration," this would not amount to such fraud as would relieve the bar of the statute. U.S. Cas. Co. v. Owens, 109 Ga. App. 834, 836 ( 137 S.E.2d 543). The employer's verbal assurances to the employee that papers relating to the employee's right to compensation would be processed for payment as soon as the employer received a doctor's report and that the employee would get some money later on, were not sufficient to constitute the requisite fraud. Indemnity Ins. Co. v. O'Neal, 104 Ga. App. 305, supra; Fidelity Cas. Co. v. Bishop, 108 Ga. App. 422, 423 ( 133 S.E.2d 51); Clinton v. State Farm Mut. Auto. Ins. Co., 110 Ga. App. 417, 419 (1) ( 138 S.E.2d 687).
3. Claimant contends that the board erred in making its findings of fact since it made no finding of fact as to whether the employer's alleged fraud relieved the bar of the statute as to the original injury. However, the finding that the claim was barred by the statute was tantamount to a finding that the requisite fraud was not proved. See Anderson v. Houston Fire c. Ins. Co., 104 Ga. App. 680, 681 ( 122 S.E.2d 589); Crews v. General Motors Corp., 107 Ga. App. 592, 594 (2) ( 130 S.E.2d 925).
4. In Aetna Casualty c. Co. v. Cagle, 106 Ga. App. 440 ( 126 S.E.2d 907), this court held: "where the deputy director finds that claimant injured his back on the job in July, 1958, and subsequently aggravated the injury until a final aggravation attributable to a specific job-connected incident in July, 1959, after which he was unable to continue work, his claim filed in December, 1959, is not barred by the one-year limitation in Code § 114-305." See also Noles v. Aragon Mills, 114 Ga. App. 130 ( 150 S.E.2d 305). In the instant case there was no evidence of a specific job-connected incident causing the gradual worsening of claimant's condition. But in order to invoke the ruling in Cagle, it is not necessary that there be "a specific job-connected incident" which aggravates the previous injury. What is required is that there be an "accident" which aggravates the pre-existing injury. Code Ann. § 114-102. "If the employment . . . contributes to the injury it is an accident under our compensation law and is compensable. . ." Callaway Mills Co. v. Yates, 106 Ga. App. 9, 10 ( 126 S.E.2d 305) and citations. Under the broad definition of the term "accident" as used in our workmen's compensation law, if the employee continued to perform the duties of the employment and thereby aggravated the initial injury, this would amount to a new "injury by accident." The evidence here was sufficient to authorize a finding that the gradual worsening of claimant's condition was at least partly attributable to his physical activity in continuing to work after the original injury. Under these circumstances, the statute of limitation would run from the date the employee was forced to cease work. Noles v. Aragon Mills, 114 Ga. App. 130, supra.
In its award the board stated that there was no evidence of any accident after June, 1963, "Where it affirmatively appears that the award is based upon an erroneous legal theory, and that for this reason the board has not considered all of the evidence in the light of correct and applicable legal principles, the case should be remanded to the board for further findings. Barbree v. Shelby Mut. Ins. Co., 105 Ga. App. 186 ( 123 S.E.2d 905). . . The award, stating as its basis that there was no such evidence, shows that it is based on an erroneous legal theory." Miller v. Travelers Ins. Co., 111 Ga. App. 245, 248 ( 141 S.E.2d 223); Waters v. National Biscuit Co., 113 Ga. App. 170, 174 ( 147 S.E.2d 676); General Motors Corporation v. Hargis, 114 Ga. App. 143, 144 ( 150 S.E.2d 303).
Judgment reversed with direction that the case be remanded to the State Board of Workmen's Compensation for further findings of fact. Jordan and Eberhardt, JJ., concur.