Opinion
38897.
DECIDED SEPTEMBER 6, 1961.
Workmen's compensation. Wayne Superior Court. Before Judge Thomas.
H. A. Stephens, Jr., Dent Acree, Smith, Field, Ringel, Martin Carr, Richard D. Carr, for plaintiff in error.
Albert E. Butler, contra.
1. The filing of a claim for compensation with the Workmen's Compensation Board within one year after an employee has suffered an accident in the course of employment and from which injuries were sustained is jurisdictional, and unless filed within that time the claim is barred.
2. The time for filing a claim for compensation will be tolled upon proof that the failure to file it within the statutory time resulted from fraud practiced by the employer upon the employee.
3. "A finding of fact by a Director or Deputy Director of the State Board of Workmen's Compensation, when supported by any evidence in the absence of fraud, is conclusive and binding upon the courts, and the judge of the superior court does not have any authority to set aside an award based on those findings of fact merely because he disagreed with the conclusions reached therein." Department of Revenue v. Graham, 102 Ga. App. 756 ( 117 S.E.2d 902).
DECIDED SEPTEMBER 6, 1961.
Mrs. Aurelia O'Neal, employed in the meat department of Setzers, Inc., suffered an injury while moving boxes of merchandise from one place to another in the store as a part of her duties. The accident was reported to the manager of the meat department, under whom she worked, who told her that he would report the matter to the store manager and that she would be "taken care of." The matter was reported to the store manager, and he filled out a form of report, as his duties required him to do, and sent it in to the insurance department at the home office of the store. Group accident insurance was provided for all store employees with Pilot Life Insurance Co., and the home office passed the information about the accidental injury on to Pilot Life, which, under the provisions of the group policy, paid the hospital and doctor bills and paid accident benefits to the employee. No claim for compensation was filed with the board by the employee, the employer or anyone else in her behalf until approximately two and a half years after the happening of the accident. No compensation has been paid to the employee. In filing the belated claim she now contends that she relied upon the assurance of the manager of the meat department that she would be "taken care of" and that the failure of the company to file a proper claim with the board in her behalf within the statutory time results from fraud practiced upon her. A hearing was held upon the claim and evidence was introduced by both the employee and the employer upon the issue of whether the employee had been prevented from filing her claim by reason of fraud practiced upon her. The hearing director found against the employee upon that issue, held that the claim was barred by the statute, as contained in Code § 114-305, and denied any award of compensation. The employee appealed to the superior court, where an order was entered setting aside the award of the director and remanding the matter to the board for further proceedings to determine the amount of compensation due to the employee. The employer and its insurance carrier here except to the order and judgment of the superior court.
1. It is well settled that the filing of a claim for compensation within the time required by Code § 114-305 with the State Board of Workmen's Compensation is jurisdictional, and unless it be shown that some fraud was practiced upon the employee that prevented his filing within the statutory time, the claim is barred. Employers Mut. Liab. Ins. Co. v. Anderson, 96 Ga. App. 509 (1) ( 100 S.E.2d 611); Patterson v. Employer's Mut. Liab. Ins. Co., 99 Ga. App. 325 ( 108 S.E.2d 146).
2. If it be shown that fraud was practiced upon the employee by the employer, or his insurance carrier, and that such fraud prevented the timely filing of the claim with the board, the statute will be tolled if the employee acts, in the filing of his claim, promptly upon the discovery of the fraud. Welchel v. American Mut. Liab. Ins. Co., 54 Ga. App. 511 (3) ( 188 S.E. 357).
To constitute fraud more is necessary than a mere reliance by the employee upon a statement by her immediate superior that she would be "taken care of."
3. The determination of whether the conduct or representations of the employer were such as to prevent the filing of a timely claim by the employee with the board, and thus amount to the practice of a fraud upon her, is a factual one. A determination of such question, if supported by any competent evidence, is binding upon the courts, and the superior court may not, because it does not agree with the findings of the director or of the board, set them aside. Department of Revenue v. Graham, 102 Ga. App. 756 ( 117 S.E.2d 902), and many others to the same effect. Here the director made a finding, from the evidence, that the employee was not so prevented from filing her claim within the statutory period, and there was competent evidence in the record upon which to base the finding. Such finding was binding and conclusive upon the court, and it was error to set it aside.
Judgment reversed. Carlisle, P. J., and Nichols, J., concur.