Lavender v. Zurich Ins. Co., 40777

• Decision Date: 15 July 1964
• Docket Number: No. 2,No. 40777,40777,2
• Citation: 110 Ga.App. 196,138 S.E.2d 118
• Parties: Alva G. LAVENDER v. ZURICH INSURANCE COMPANY et al
• Court: Georgia Court of Appeals

Page 118

138 S.E.2d 118

110 Ga.App. 196

Alva G. LAVENDER v. ZURICH INSURANCE COMPANY et al.

No. 40777.

Court of Appeals of Georgia, Division No. 2.

July 15, 1964.

Rehearing Denied July 30, 1964.

Syllabus by the Court

After the time for appeal has expired, an award of the Stae Board of Workmen's Compensation, denying compensation to an employee-claimant which is based on the stipulation of all parties that the claimant is not entitled to an award is not void on its face. A petition to set aside the award filed over fourteen months after it has become final, and urging only grounds which might have been raised by direct appeal sets forth no cause of action and was properly dismissed on demurrer.

The plaintiff in error, while an employee of the defendant Diversey Corporation, sustained a back injury on June 11, 1962. Thereafter he filed a claim before the State Board of Workmen's Compensation, but before it came on for hearing the parties signed and filed with the board a stipulation reciting in part that 'claimant has determined and is satisfied that the injury which he sustained in said accident is not compensable under the Workmen's Compensation law,' and that the same is filed so that the board might 'enter an award herein denying compensation * * * to claimant.' On October 30, 1962, the board did just that, reciting that the award was 'based on the above and foregoing stipulations.' On January 13, 1964, plaintiff filed an action to set aside the award in the Superior Court of Bibb County. The first count, based on fraud in the procurement, was abandoned after the court sustained a general demurrer with leave to amend. Count 2 as amended contends merely that plaintiff was induced to sign the stipulation by reason of the urging of an employee of the defendant insurance carrier, and that the award denying compensation is contrary to law because it is based on insufficient facts, there are no facts to support it as rendered, and there are no findings of fact in the award itself. A general demurrer to count 2 as amended was sustained and the plaintiff excepts.

O. L. Crumbley, Macon, for plaintiff in error.

Harris, Russell & Watkins, Philip R. Taylor, Macon, for defendants in error.

RUSSELL, Judge.

The amendment to Code Ann. § 114-106 (Ga.L.1963, pp. 141, 142), which provides that where there is a bona fide dispute as to the facts a settlement between the parties giving due regard to conflicting evidence shall be approved by the board, is not involved here since the award was entered in 1962. It is therefore unnecessary to decide (a) whether this section relates to situations where there is a stipulation to the effect that the claimant is not entitled in any amount, or (b) whether, if so, this stipulation would be inadequate for the purpose because it does not recite any of the facts and disputed evidence, but merely a general conclusion of the parties to the effect that there is no liability. There is nothing which prohibits the Board of Workmen's Compensation from entering awards based on stipulations, even though the effect of the award is to deny compensation in any amount to the claimant. McCord v. Employers Liability Assurance Corp., 96 Ga.App. 35, 99 S.E.2d 327; Tigue v. American Mutual Liability Ins. Co., 108 Ga.App. 723, 134 S.E.2d 525. These cases concern awards based on stipulations which recite facts rather than conclusions. Where the stipulation merely states an erroneous conclusion of law, the board should disregard it. Globe Indemnity Co. v. Legien, 47 Ga.App. 539(1), 171 S.E. 185. Whether, on appeal, mere conclusions of fact are binding on the parties was considered but not decided in McCord, ...