Opinion
33024.
DECIDED MAY 12, 1950. REHEARING DENIED JUNE 6, 1950.
Appeal; from Cobb Superior Court — Judge Brooke. January 28, 1950.
W. Neal Baird, Neely, Marshall Greene, for plaintiff in error.
Riordan Taylor, O. L. Foster, contra.
The court did not err in affirming the award of the State Board of Workmen's Compensation for the reasons given in the body of the opinion.
DECIDED MAY 12, 1950. REHEARING DENIED JUNE 6, 1950.
On October 6, 1944, the claimant, Carl Garland, received a compensable injury. Under an agreement approved by the State Board of Workmen's Compensation, the claimant was paid temporary, total, disability compensation. After maximum improvement was reached, a hearing was held and an award was rendered by the board on September 5, 1945, wherein the employer and carrier were directed to pay the claimant compensation as for a 75 percent permanent, partial loss of the use of his right leg. Later, after a hearing in April, 1946, the board entered an award on June 12, 1946. The board expressed in said last award a change in the claimant's condition and reduced his disability from 75 percent to 50 percent permanent, partial loss of the use of his right leg. The award of June 12, 1946 was paid off in its entirety. The insurance carrier did not obtain a final settlement receipt of the settlement of the award of June 12, 1946. It is contended by the insurance carrier that on February 20, 1947, the insurance carrier wrote the State Board of Workmen's Compensation the following letter: "Gentlemen: 4 C 23683 Carl Garland vs Bell Aircraft Corp. We have paid 121 weeks compensation or a total of $2420.00 in this case. This represents the 16 weeks we had paid from Oct. 13, 1944 to Feb. 2, 1945, when an Award was rendered for 105 weeks, making in all 121 weeks to be paid. Employee has advised that he will not sign the Final Receipts."
Thereafter, the claimant made application to the board for an additional compensation based upon a change in his condition. A hearing was first held on this application in Jasper, Georgia, and a second hearing was held in Marietta, Georgia. At the time of the hearing in Jasper, Georgia, counsel for the carrier stated to the hearing director that they would make all defenses to the matter at the hearing in Marietta. Counsel for the carrier at the time of the hearing in Jasper knew nothing of the letter claimed to have been written by the carrier to the board on February 20, 1947. The hearing was duly held in Marietta. Counsel for the carrier contends that he had, at the time of the hearing in Marietta, no advice or information as to the said letter of February 20, 1947, which the carrier claims to have written to the board.
Director Tucker, of the State Board of Workmen's Compensation, received the evidence at Jasper and at Marietta, and on October 11, 1949, entered his award in which the claimant was awarded 25 percent additional compensation for change in condition. This award of Director Tucker was duly appealed to the full board and the full board affirmed the award of Director Tucker on November 14, 1949. The full board, in affirming the award of Director Tucker, stated: "The defendants made a motion that the board remand this case for a further hearing to allow the defendants to introduce testimony to the effect that the insurer placed a letter in the mail notifying the board of final payment of compensation in this case. This point was not raised at the hearings before the single director and the motion is denied."
Between the final hearing at Marietta and before the award of Director Tucker, the present counsel for the insurance carrier, the Hon. Harry L. Greene, to wit: On September 17, 1949, wrote the State Board of Workmen's Compensation the following letter:
"State Board of Workmen's Compensation "State Office Building "Atlanta, Georgia "Gentlemen:
Re: Carl Garland vs. Bell Aircraft Corp. Claim 535-W. "We have now received the insurance company's original file in this case which contains copy of letter which the insurance company wrote the Board on February 20, 1947, reading as follows: 'At the time of the original hearing we reserved the right to make such objections and defenses as the company had; and the purpose of this letter is to plead Section 114-709 of the Code as a bar to the right of the claimant to make application for a hearing, based upon a change in condition; it being the contention of the employer and insurance carrier that claimant's application for a hearing based on a change in condition was not filed with the Board within two years from the date on which the Board was notified by the insurance company that final payment of compensation had been made to the employee.'" A copy of this letter was sent to the attorneys for the claimant and to the insurance carrier. It seems to be undisputed in the record that the letter of February 20, 1947, which it is contended was mailed to the board, was not in the files of the State Board of Workmen's Compensation, either at the hearing in Jasper or in Marietta, and it is not now in the files, so far as the record reveals; and further, that attorney for the carrier was unaware that the carrier claimed to have written the letter until after the hearing had closed in Marietta, and that between the date of the hearing at Marietta was closed, and the date of the award, some three weeks before the award of Director Tucker, counsel for the carrier requested that the case not be closed until the carrier had an opportunity to present to the board evidence to the effect that in due course the carrier had properly stamped and addressed the letter of February 20, 1947, and deposited same in the proper channels of the United States mails to insure proper delivery. Director Tucker, in his award of October 11, 1949, made the following finding of fact: "The attorney for the employer in this case contended that the claimant's claim was barred for the reason that claimant's application for a hearing on the ground of a change in condition was not filed with the board within two years from the date on which the board was notified by the insurance company that final compensation had been paid to the employee. The undersigned director has reviewed the record carefully and closely on more than one occasion prior to the contention cited in the defendants' letter to the board and I have been unable to find any record of any notice of final payment of compensation by the employer to the board as required under the act. Therefore the defendants' contention that the claimant be barred by the statute is hereby overruled for the reason that the board has not been officially notified as required under the act, by the employer and/or insurance carrier of final payment of compensation.
There seems to be no controversy in the record as between the parties that if the said letter of February 20, 1947 had been received by the State Board of Workmen's Compensation, the application of the claimant which was filed in July, 1949 would have been barred under the Code § 114-709. It is further contended by the insurance carrier that if the carrier had been able to show that the said letter of February 20, 1947 was properly mailed to the board, that the rebuttable presumption would have arisen that the board received the letter in due course on or about February 21, 1947.
In the statement of facts, we have used the expression "the insurance carrier claims" and "contends" certain things. In using the words "claims" and "contentions" we do not mean to intimate that the letters were not written, or the contentions not made in good faith. But we simply mean to state that so far as the records are concerned, there are claims and contentions, which as against the claims and contentions of the claimant, would as probably in the record, form an issue of fact for the board to determine. So far as this court is concerned, we are dealing only with the question of law. The carrier contends in the argument of his counsel, that about the time the letter of February 20, 1947 was written, the files and personnel in the State Board of Workmen's Compensation was in a confused state due to change in governors, resulting in change of personnel of the board and therefore the carrier had been presumed to have introduced evidence with reference to having mailed that letter to the board, the board would have probably entertained a different view as to whether the carrier mailed the said letter as claimed, and the refusal to open the case and hear such testimony regarding the mailing of the letter, was an abuse of discretion on the part of the hearing director in rendering the award and on the part of the full board in affirming it, and a reversible error of law on the part of the judge of the superior court in upholding the award. It is clear, therefore, that the only question for this court to decide is: Was an abuse of discretion shown by the record on the part of the State Board of Workmen's Compensation? It is the general law, so far as we know it, that when a judicial tribunal or quasi-judicial tribunal has closed a hearing for the taking of evidence, that it is within the discretion of such tribunal as to whether the case be reopened for the taking of further testimony. This rule of general practice has many savory effects. We will not go into them here. Even though the statute of limitations has run against the claimant, the insurance carrier and employer could, as a matter of law, have waived this limitation. See, in this connection, St. Paul Mercury Indemnity Co. v. Oakley, 73 Ga. App. 97 ( 35 S.E.2d 562). The question here before us is in the nature of newly discovered evidence, and insofar as the judge of the superior court is concerned, in an appeal to it, that court is without authority to disturb an award of the board on account of newly discovered evidence. See, in this connection, White Provision Co. v. Culbreath, 58 Ga. App. 628 (3) ( 199 S.E. 318), citing Code § 114-710.
The court did not err in affirming the award of the State Board of Workmen's Compensation.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.