Opinion
34393.
DECIDED JANUARY 27, 1953. REHEARING DENIED FEBRUARY 3, 1953.
Workmen's compensation; from Pulaski Superior Court — Judge Graham. September 25, 1952.
Rowland Rowland, Harry E. Monroe, T. Elton Drake, John M. Williams, for plaintiff in error.
Martin, Snow Grant, contra.
Although an application for review of an award of the Board of Workmen's Compensation approving a settlement agreement is barred when it is filed more than two years after notice of final payment of the claim is made to the board, the statute of limitations does not run when such notice is not given. Under these circumstances the Board of Workmen's Compensation has jurisdiction to entertain such an application although more than two years have elapsed since the date on which payment was actually made.
DECIDED JANUARY 27, 1953 — REHEARING DENIED FEBRUARY 3, 1953.
J. W. Orvin, claimant in a workman's compensation proceeding, was injured on September 15, 1947, while in the employ of T. D. Lamb Jr. Construction Company. On May 10, 1949, after a hearing, the board entered an award in his favor allowing compensation. The employer and its insurance carrier, National Surety Corporation, appealed the case to the Superior Court of Pulaski County but, prior to a hearing the appeal was dismissed, the parties having entered into an agreement to make a lump sum settlement of the compensation. The settlement agreement was referred to the Board of Workmen's Compensation, which, on August 16, 1949, entered the following award: "Wherefore, based on the above and foregoing agreement entered into by and between the parties, T. D. Lamb Construction Company, employer, and/or National Surety Corporation, insurance carrier, are hereby authorized and directed to pay, upon receipt of this order, direct of J. W. Orvin, employee claimant, $1300.00, in lump sum in full and final settlement of all compensation due hereunder."
The same day a check for $1300 was mailed to the claimant. No written notice of final payment was ever made to the board, and nothing else was done by the employer except that on August 18, 1949, counsel for the insurance company saw Arlie Tucker, Chairman of the Board of Workmen's Compensation, and stated to him: "I already made a settlement of thirteen hundred dollars to Emory Rowland (counsel for the claimant)." On cross-examination of Mr. Tucker by Mr. Rowland, the latter inquired: "At the time, did he give you notice the claim was being paid?" to which Mr. Tucker replied in the negative.
The preceding testimony appears in the record of a hearing to determine change of condition in accordance with an application by the claimant dated February 1, 1952. By agreement, the sole issue decided at this hearing was whether or not an award based on change of condition would be barred by the statute of limitations. The director hearing the case entered an award in favor of the claimant as to this issue, from which the employer appealed directly to the Judge of the Superior Court of Pulaski County. The latter reversed the decision of the Board of Workmen's Compensation, holding that no statute or rule of the board required that notice of final payment of compensation be given in writing. This judgment of the superior court overruling the finding of the Board of Workmen's Compensation is assigned as error.
Code (Ann. Supp.) § 114-709 provides in part that the Board of Workmen's Compensation "may, within two years from the date that the board is notified of the final payment of the 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." This means that the date of the notice of final payment, and not the date of payment itself, is that date from which the two-year statute of limitations commences to run. Fidelity Casualty Co. v. Brooks, 70 Ga. App. 355 (1) ( 28 S.E.2d 343). An application for review filed more than two years after such notice is given is barred by the limitation. Kirkland v. Employers Liability Assurance Corporation, 69 Ga. App. 433(3) (25 S.E.2d 723). The director hearing this case found that notice had not been given, for which reason the statute of limitations had not begun to run, and, although his finding on this issue was obviously predicated upon a further finding that it was the rule and custom of the Board of Workmen's Compensation to require all such notices to be in writing, it Yet appears that there is nothing in the record which would demand a finding that any notice of final payment, either written or oral, had been given. Counsel for the carrier relied upon his statement to the Chairman of the Workmen's Compensation Board as follows: "I already made a settlement of of $1300 with Emory Rowland." The fact that a settlement had been made was, of course, already known to the board, which had, two days previously, approved the same. Immediately after stating this, Mr. Tucker added that counsel did not, at that time, give him notice the claim was being paid. It is notice of payment, and not notice of settlement, which he law requires. Accordingly, it must be held that the statement of counsel was not, in any event, sufficient notice that the claimant had been paid in full to act as a point for the commencement of the period for the limitation, and, there being no other evidence in the record that any such final notice of payment was given, the claimant was not barred from filing an application for further compensation based upon a charge of condition.
Whether or not a proper oral notice of final payment would be sufficient, or whether such notice must be in writing, is not here decided. The provisions of Codes § 114-709 do not specify the manner of giving of such notice. However, it is provided in Codes § 114-703 that the Board of Workmen's Compensation "may makes rules, not inconsistent with this Title, for carrying out the provisions of this Title." Such rules are not the subject of judicial notice, but, when properly proved by introduction in evidence are of full force and binding effect. Crouch v. Fisher, 43 Ga. App. 484(3) (159 S.E. 746). The Board of Workmen's Compensation would, accordingly, have the right to make and enforce proper regulations requiring that notices pertaining to the filing and disposition of claims should be in writing.
The judge of the superior court erred in reversing the award of the Board of Workmen's Compensation.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.