Attaway v. First National Bank

175 S.E. 258, 49 Ga. App. 270, 1934 Ga. App. LEXIS 359

• Court: Court of Appeals of Georgia
• Decided: June 19, 1934
• Docket: 23740
• Status: Published

Opinion

Jenkins, P. J.

1. Section 25 of the workmen’s compensation act provides that “the right to compensation under this act shall be forever barred, unless a claim be filed with the industrial commission [now the Department of Industrial Relations] within one year after the accident.” Ga. L. 1920, pp. 167, 181; Ga. L. 1925, pp. 282, 284; Michie’s Code, § 3154(25). This provision operating as a “limitation of the liability as created, and not of the remedy alone” (Seaboard Air-Line Ry. Co. v. Brooks, 151 Ga. 625, 627, 107 S. E. 878; Porter v. Liberty Mutual Ins. Co., 46 Ga. App. 86, 89, 166 S. E. 675), “the filing of the claim for compensation with the industrial commission within the time prescribed is jurisdictional; and unless this is done, the commission is without authority to grant the injured employee compensation.” U. S. Casualty Co. v. Smith, 162 Ga. 130, 133 (133 S. E. 851); Bussey v. Bishop, 169 Ga. 251 (150 S. E. 78, 67 A. L. R. 287). The record in the instant case affirmatively showing that the claimant was injured on June 15, 1931, but that he did not file his claim with the Department of Industrial Relations until February 4, 1933, his ignorance of the statutory requirement, or the gratuitous payment by his employer of contributions for the support of himself and his family within one year prior to the filing of his claim, would not operate to toll the statute, and the department properly dismissed his claim.

2. While section 45 of the workmen’s compensation act authorizes the Department of Industrial Relations “at any time [to] review any award or any settlement made between the parties and filed with the [department],” upon “its own motion before judicial determination, or upon the application of any party in interest on the ground of a change in condition,” and while section 19 of the act requires that a copy of any settlement agreement shall be filed by the employer with the department, these provisions have no application to prevent the bar of the instant claim, since it is shown by the record that the injured employee never filed any application to “review any award or any settlement made between the parties,” but merely a claim, and that the payments made to the employee by the-employer after the injury were not made as a “settlement” or purported settlement, but merely as a gratuity without obligation or as a consideration for any release by the employee, for his financial assistance in his sickness from tuberculosis and possible disease of the gall bladder. The evidence does not clearly disclose and the department did not determine whether this disability arose prior to or independently of the injury; and it is unnecessary to consider this question. Judgment affirmed.

Decided June 19, 1934. Ben T. Blackmon, John W. Bolton, for plaintiff. Brandon, Hynds & Tindall, for defendant. Stephens and Sutton, JJ., concur.