Opinion
34036.
DECIDED JUNE 20, 1952.
Appeal; from Fulton Superior Court — Judge Pharr. January 30, 1952.
Ralph C. Brown, for plaintiff in error.
John M. Slaton, J. Hugh Rogers, contra.
The superior court properly affirmed the decision of the Board of Workmen's Compensation, denying additional compensation to the claimant, where there was no evidence that there had been such fraud practiced by the employer or its insurance carrier as would suspend the running of the statute limiting the claimant's right to reopen an approved compensation agreement to the two-year period following notice of final payment of compensation under such agreement, and where the application to reopen the compensation agreement was made more than three years after notice of the final payment thereunder.
DECIDED JUNE 20, 1952.
This workmen's compensation case arose under the following circumstances: H. E. Priest was injured on October 25, 1946, while he was doffing in the cloth room his employer, the Exposition Cotton Mills Company. A roll of cloth fell from a passing truck, struck Priest on the right knee and knocked him down. Priest, the cotton mill, and its insurance carrier entered into an agreement on December 30, 1946, in regard to compensation for the injury thus sustained by Priest; under its terms, Priest was to receive compensation at the rate of $15.19 per week, based upon an average weekly wage of $30.38. Such compensation was to be payable in a lump sum from November 1, 1946, until terminated. On the same day a final settlement receipt was executed by Priest to the insurance carrier for $18.23, "of which amount none was paid for permanent disability, in final settlement and satisfaction of all claims for compensation due under compensation agreement or award subject to review as provided by law, on account of injuries" as described above. "Temporary disability ceased on the 10th day of November 19__. I returned to work on the 11th day of November, 1946, at a wage of same per week." Both the settlement receipt and the agreement appeared to have been executed by Priest by his mark.
A surgeon's report was made on January 15, 1947, by Dr. E. A. Musarra of Marietta, and in it he stated that he had been engaged by Priest on October 28, 1946, and that he had given him diathermy treatments. His diagnosis of the injury was "Contusion, right knee," and it was his opinion that the injury would not result in a permanent defect; that normal recovery had been delayed because of "Varicose veins, right leg"; and that the accident was not a producing cause of the injury because the patient, Priest, was "suffering from varicose veins with ulcer formation, right leg."
On February 1, 1947, the State Board of Workmen's Compensation approved the agreement, "conditioned upon the right of the board to review and correct the same should it be shown that error was committed, or in the event that any party in interest shall question the validity of the agreement." Compensation was to be paid weekly at the rate of $15.19 per week, beginning November 1, 1946, and continuing during disability.
On April 13, 1950, Priest's attorney sent a letter to the State Board of Workmen's Compensation stating that Priest had been injured in the course of his employment on October 25, 1946, and that on December 30, 1946, a final settlement providing for payment of $18.23 was executed and the letter also stated that, "Due to the fact that the two year's limitation as provided by statute has run, claimant moves that said settlement be set aside as same was procured by fraud."
The notice of hearing issued by the board recited that the subject of the hearing was: "Change of condition. Claimant alleges fraud prevents running of the statute." At the hearing, H. E. Priest testified in substance that his leg injury hurt him all the time; that he could not work at all and was unemployed; that he did not know anything about signing a final settlement with the company; that he got $17 or $18 one time for the injury to his leg, although he didn't know whether the amount was for work or for the injury; that he just made his mark for it; that he could not read or write; that he had never seen the final compensation settlement before and didn't know about the "X" upon it; that he may have made a mark, but didn't remember it; that he might have made a mark for work he had done, or for the insurance check he got, as he was paying a premium of 46 cents a week for insurance and had to make a mark on a piece of paper every time he got his insurance check; that the company's representative never mentioned a final settlement for his injury; that the relationship between him and the company was confidential as he thought they would treat him right; that he was given a leave of absence but was unable to work when it ran out, and when he was able to work, he was told that the company had all the hands they needed; that he was off a year and then went back to work and worked about a year; and that the last work he did was sweeping.
Mrs. E. H. Barfield, the claimant's daughter and also an employee of the Exposition Cotton Mills Company, testified that her father went back to work for three days before he was able to and before his leave of absence had run out, but that his leg put him back in bed.
The claimant introduced the medical report of Dr. Rufus A. Askew, dated December 14, 1949. The results of his examination were as follows: "The claimant is 5' 10" tall, weighs 165 pounds and has a blood pressure of 200/120. He is a poorly-nourished, poorly-developed elderly man who appears to be feeble. He is definitely beyond doing any hard manual work." In addition to conditions of high blood pressure, senility and hardening of the arteries, the doctor found that the claimant's right thigh had wasted away two inches; that there was a slight feeling of instability in the knee joint; and that the claimant had suffered a torn cartilage in the right knee and as a result had a 25% permanent partial disability of the right leg.
The deputy director who heard the case entered an award to the claimant of further medical treatment and of compensation at the rate of $15.19 per week for 43.75 weeks, for a 25% permanent partial disability of the right leg, based on a finding that the claimant had undergone a change in condition and that there had been no evidence in denial of or in rebuttal to Priest's claim that fraud had prevented the running of the statute of limitations.
The employer and its insurance carrier appealed to the full board on the ground that a review of the settlement had been sought more than two years after the board had been notified of the final payment of the claim, and so was barred. The full board affirmed the award of the deputy director, and the employer appealed to the Superior Court of Fulton County. The records in the case were transmitted to that court on August 16, 1950, but six days later the chairman of the board wrote a letter to a judge of the Superior Court of Fulton County, requesting that the case be remanded to the board for the purpose of correcting an error in the findings which the board had inadvertently made. A judge of the Superior Court of Fulton County remanded the case to the board on August 24, 1950, and in his order recited that counsel for appellants and appellee had agreed thereto.
The board then made findings that no fraud had been proved as charged by the claimant; that more than two years had elapsed since notice was given to the board of final payment of compensation and before the application for review of the settlement was made; and that the claimant's rights to review were barred under Code § 114-709. The board reversed and set aside its previous award and the award of the deputy director which had been in favor of the claimant. The claimant then appealed to the superior court, where the decision of the full board was affirmed. The exception here is to that judgment.
The claimant conceded in his application for a review of the settlement agreement that such application, on the ground of a change in condition alone, was made too late. Code (Ann.), § 114-709; Kirkland v. Employers Liability Assurance Corp., 69 Ga. App. 433 ( 25 S.E.2d 723). He moved to set aside the settlement on the ground that it was procured by fraud. The board apparently recognized that even if the approved settlement agreement had been procured by fraud, it could not be reviewed on that ground more than two years after notice of final payment of compensation under the agreement had been sent to the board ( Sutton v. Macon Gas Co., 46 Ga. App. 299 (2), 167 S.E. 543), for in the notice of hearing it was stated that "Claimant alleges fraud, prevents running of statute." This was also stated as one of the purposes of the hearing by the deputy director who conducted the hearing. There is a difference between fraud that will entitle a person to rescind a contract and fraud that tolls the running of the statute of limitations, as pointed out in the case of Middleton v. Pruden, 57 Ga. App. 555, 560 ( 196 S.E. 259). In his findings of fact, the deputy director found only that the evidence did not show any denial or rebuttal of the claim that the fraud of the employer or its insurance carrier had prevented the running of the statute of limitations. The deputy director did not make a finding that there had been such fraud practiced upon the claimant as would suspend the operation of the statute of limitations, and if such a finding had been made, it would not have been supported by the evidence in the record.
Mere ignorance of facts constituting a cause of action does not prevent the running of a statute of limitations. Davis v. Boyett, 120 Ga. 649 ( 48 S.E. 185, 66 L.R.A. 258, 102 Am. St. R. 118, 1 Ann. Cas. 386); Ponder v. Barrett, 46 Ga. App. 757 (2) ( 169 S.E. 257). But where such facts are fraudulently concealed by the other party, as where some trick or artifice has been employed to prevent inquiry or elude investigation, or to mislead and hinder a party who has a cause of action from obtaining information, and where there is more than a mere failure to disclose, or else where there is a duty to make a disclosure, the bar of the statute will be relieved. Middleton v. Pruden, 57 Ga. App. 555, 560, supra; American National Bank of Macon v. Fidelity Deposit Co., 131 Ga. 854 ( 63 S.E. 622, 21 L.R.A. (N.S.) 962); Code, § 3-807; Maxwell v. Walsh, 177 Ga. 467 ( 43 S.E. 704); Anderson v. Foster, 112 Ga. 270 ( 37 S.E. 426).
In the present case, it appears from the claimant's testimony that his employer allowed him to sign a compensation agreement and a final settlement receipt which contained recitals that the claimant was only disabled for a period of a little more than a week. The claimant recalled receiving one check for $17 or $18, but did not know whether it was pay for his work, a benefit payment under an insurance policy, or compensation for his injury. However, the claimant must have known that he was receiving no more such checks after he had received that one. It appears that he returned to work for a few days before he was able to do so, according to his daughter's testimony, and then was not working for a year, although this was because the employer had no work for him to do when he was again able to work and not because the claimant was incapacitated during all of that time. The claimant then worked for a year, and it was during this time that his right to reopen the agreement on the ground of a change of his condition became barred by the statute.
If the representatives of the company failed to disclose the nature of the agreement which the claimant entered into, even assuming that there was a duty upon them to make such disclosure, it does not appear that the rights of the claimant were prejudiced thereby or that he was deterred from taking action to enforce his rights. While the claimant testified that he didn't know he was receiving compensation for his injury, he did not show that he had made any other attempt to obtain compensation within the year following his injury. The claimant's contention seems to be that the company failed to advise him of his rights to compensation, and not that its representatives fraudulently concealed from him the facts giving rise to his rights. While it is regrettable that the claimant, aged and illiterate, was not advised as to his rights, it was not the company's duty to do so. It does not appear that the claimant made any inquiry as to his rights until more than three years after his injury and his receipt of compensation therefor, when his right to seek additional compensation for a change in condition (Code, Ann., § 114-709), or to have the agreement reconsidered by the board on other grounds ( Georgia Marine Salvage Co. v. Merritt, 82 Ga. App. 111, 60 S.E.2d 419), was barred. No conduct of the company or of its insurance carrier is shown to have prevented the claimant from making such inquiry, so as to suspend the operation of the statute limiting the time in which the claimant could reopen the agreement.
As the award of additional compensation by the deputy director was not supported by his findings, and as there was no evidence to support the necessary but omitted finding that there had been such fraud practiced by the company or its insurance carrier as would suspend the running of the statute limiting the claimant's right to reopen the approved compensation agreement, it being conceded by the claimant that such period of two years had expired, the State Board of Workmen's Compensation did not err in reversing its previous award and the award of the deputy director, and the superior court properly affirmed the decision of the full board, denying additional compensation to the claimant.
Judgment affirmed. Felton and Worrill, JJ., concur.