Opinion
41273.
ARGUED APRIL 5, 1965.
DECIDED MAY 26, 1965. REHEARING DENIED JUNE 10, 1965.
Workmen's compensation. Troup Superior Court. Before Judge Knight.
Thurman C. Duncan, A. W. Birdsong, Jr., for plaintiff in error.
B. J. Mayer, George E. Sims, Jr., contra.
Neither an agreement for the purpose of payment of temporary disability compensation and a settlement receipt therefor, nor a claim for compensation filed by the widow within one year of the employee's death but voluntarily withdrawn prior to a hearing thereon, constituted a valid claim for death benefits under Code Ann. § 114-413 and, since a second claim was barred by the statutory limitation of Code § 114-305, which was not extended by the provisions of Code § 3-808, the court did not err in reversing the award of the board in favor of the claimant.
ARGUED APRIL 5, 1965 — DECIDED MAY 26, 1965 — REHEARING DENIED JUNE 10, 1965.
Walter C. Gordy sustained an accidental leg injury on October 31, 1961, while in the employ of defendant Callaway Mills Company and died on November 14, 1961. The attending physicians filed a statement on November 20, 1961, to the effect that the cause of death was coronary thrombosis and was unrelated to the disability from the leg injury. The employer filed an agreement for the payment of compensation for temporary disability, dated November 14, 1961, and an undated settlement receipt, both of which were signed by the employee's wife/widow. No claim for compensation was filed by the employee himself. The widow filed a claim for compensation on September 27, 1962, and at the hearing thereon on October 24, 1962, she requested that her claim be withdrawn and dismissed, which the board did by order of January 21, 1963. She filed a second claim on April 29, 1963, to which the defendant-employer filed a motion to dismiss on the ground that it was not filed within one year after the accident or within one year of the death of the claimant's decedent. The board denied the motion and entered an award in favor of the claimant. The award was reversed by the superior court, to which judgment the claimant excepts.
The one-year statutory limitation of Code § 114-305 applies to original claims, whether filed by the employee or, if he had not filed a claim at the time of his death, by his dependents, who would be entitled to compensation in the first instance. Bituminous Cas. Corp. v. Johnson, 79 Ga. App. 105 ( 53 S.E.2d 119); Great American c. Co. v. Usry, 87 Ga. App. 821 ( 75 S.E.2d 270). The holding in Bituminous Cas. Corp. v. Lockett, 65 Ga. App. 829 (2) ( 16 S.E.2d 214), that "[a] claim for compensation to dependents of an injured employee, filed after his death and as provided for in the Code, § 114-413, must be brought within 300 [now 400] weeks from the date of injury of the employee," is not contrary to what is above said, because, as was pointed out in Great American c. Co. v. Usry, pp. 823-4, supra, the Lockett case is distinguishable by the fact that, in that case, compensation payments had been made to the injured employee before his death and the dependents, if entitled at all, were secondarily entitled to remaining compensation, in which case the one-year limitation of Code § 114-305 did not apply. In the present case the 400-week limitation is not involved since there was no claim filed by the employee; therefore the widow's claim was an original claim, governed by the one-year limitation of Code § 114-305.
The agreement for the payment of compensation, bearing the date of the employee's death, did not amount to a claim for death benefits within the meaning of Code § 114-305, whether it was filed prior to or subsequently to his death, since it was for the stated and limited purpose of compensation for the injured employee's temporary disability.
The widow's claim of September 27, 1962, although filed within the one-year limitation, was effectively invalidated by its voluntary withdrawal by the claimant. If a claim filed is withdrawn by the party filing it before a hearing is had, it is as though no claim had been filed, and the board would be without jurisdiction to entertain a second claim filed after the expiration of the statutory limitation of Code § 114-305. Maryland Cas. Co. v. Gill, 46 Ga. App. 746 ( 169 S.E. 245); Ogden v. Clark Thread Co., 93 Ga. App. 227 ( 91 S.E.2d 191); Jones v. American Mut. Liab. Ins. Co., 48 Ga. App. 351, 353 (5) ( 172 S.E. 600). Nor was the time within which the claim could have been filed extended by the provisions of Code § 3-808, relating to dismissal and renewal of a case within six months so that the renewed case stands upon the same footing as to limitation with the original case, which provisions are not applicable to claims arising under the Workmen's Compensation Act. Southern Cotton Oil Co. v. McLain, 49 Ga. App. 177, 183 ( 174 S.E. 726), and cit.; Hicks v. Standard Acc. Ins. Co., 52 Ga. App. 828, 830 ( 184 S.E. 808), and cit. See also: Tillman v. Moody, 181 Ga. 530, 531 (1) ( 182 S.E. 906); Maryland Cas. Co. v. Stephens, 76 Ga. App. 723 (1) ( 47 S.E.2d 108). The case of Sherrill v. U.S. Fidelity c. Co., 108 Ga. App. 591 ( 133 S.E.2d 896), is not authority to the contrary. Although the applicability of Code § 3-808 to workmen's compensation claims was there assumed arguendo, the question was not reached, since the case was decided on another basis.
Since there was for the board's consideration no valid, existing claim for compensation on account of the decedent's death within one year of the death, the claimant's recovery of whatever benefits, if any, to which she might have been entitled under the Act, was barred by the statutory limitation of Code § 114-305.
Accordingly, the court did not err in its judgment reversing the award of the board.
Judgment affirmed. Jordan and Russell, JJ., concur.