McCord v. Employers Liability Assur. Corp.

• Decision Date: 11 June 1957
• Docket Number: No. 36732,No. 1,36732,1
• Citation: 99 S.E.2d 327,96 Ga.App. 35
• Parties: Gladys McCORD v. EMPLOYERS LIABILITY ASSURANCE CORPORATION et al
• Court: Georgia Court of Appeals

Page 327

99 S.E.2d 327

96 Ga.App. 35

Gladys McCORD v. EMPLOYERS LIABILITY ASSURANCE CORPORATION et al.

No. 36732.

Court of Appeals of Georgia, Division No. 1.

June 11, 1957.

Syllabus by the Court

The Superior Court of Fulton County did not err in affirming the award of the State Board of Workmen's Compensation denying the claimant compensation in the present case where the award was based on an agreement between the parties.

Gladys McCord filed an appeal to the Superior Court of Fulton County from an award of the State Board of Workmen's Compensation denying her compensation because the injury did not arise out of and in the course of her employment. The award was based on the following stipulation of fact entered into by the parties.

'Case of: Gladys McCord

'Employer: Columbia Baking Company

'Carrier: Employers Liability Assurance Corporation

'It is stipulated by and between the parties to the above styled case as follows: 1. Gladys McCord, employee, on or about May 24, 1956, sustained an injury. 2. She was employed by the Columbia Baking Company, employer, at an average weekly earnings of $54.80. 3. There is a dispute as to how the accident happened which caused injuries to the claimant's leg. The company advises 'During break, at water fountain Gladys McCord [and] Maybell Hardy threw a bit of water on each other, Gladys McCord ran and fell hurting leg.' The claimant contends that while she was on a break she went into another department in order to see a new machine which she had not seen. While in other department she fell and hurt herself. 4. The parties hereto stipulate and agree that Gladys McCord, employee, did not sustain an accident and injury which arose out of and within the course of her employment and is, therefore, not entitled to compensation benefits. Wherefore, the parties hereto pray approval of this stipulation and request an award of the State Board of Workmen's Compensation approving the same.'

It was alleged in the appeal that: 'That the final award in said matter was procured by fraud in the following manner: That following claimant's injury on or about May 24, 1956 while employed by the Columbia Baking Company, the said employer and/or its insurance carrier Employers Liability Assurance Corporation, Ltd., furnished to claimant a physician A. A. Weinstein to treat a traumatic injury to the varicose veins in claimant's leg; and said physician operated on claimant for said condition and injury; and said employer and its insurance carrier, realizing that claimant's injury was serious and grave and not cured or alleviated by said treatment, and that said condition had grown worse, since injury, concealed the said fact and facts from claimant, and represented to claimant that said physical injury to claimant had been alleviated and cured, and claimant believed said representation, and relied on them; and said aforesaid insurance carrier offered to claimant to pay medical expense of approximately $700 and to pay claimant $1,000, and in reliance upon the aforesaid representations made to and believed by claimant, claimant did accept the same and a check or draft was issued payable jointly to her and the physician in the amount of approximately $700 which she endorsed and returned to the aforesaid insurance company and a further draft or check was issued and delivered to her payable to her in the amount of $1,000 which claimant cashed; and that claimant's condition instead of improving and getting better has steadily deteriorated and got worse necessitating further medical and hospital treatment; and that claimant signed a paper, at the instance of said insurance carrier the purport of which she did not, at the time and in the physical condition she was in at the time of signing, understand nor was any explanation of the true nature of the paper explained to her; and claimant has since and lately learned that said paper was in the nature of a disclaimer of any injury to the claimant in the course of employment, which she did not understand the same to be; and that the signing of said paper by claimant was procured by the practice of fraud and deceit upon his claimant by means of the aforesaid representations, which claimant believed, and relied and acted upon; and the said insurance carrier used said paper, in...