Perkins v. Aetna Cas. & Sur. Co.

• Decision Date: 23 October 1978
• Docket Number: No. 56258,56258
• Citation: Perkins v. Aetna Cas. & Sur. Co., 249 S.E.2d 661, 147 Ga.App. 662 (Ga. App. 1978)
• Parties: PERKINS v. AETNA CASUALTY & SURETY COMPANY et al.
• Court: Georgia Court of Appeals

Page 661

249 S.E.2d 661

147 Ga.App. 662

PERKINS v. AETNA CASUALTY & SURETY COMPANY et al.

No. 56258.

Court of Appeals of Georgia.

Argued Sept. 11, 1978.

Decided Oct. 2, 1978.

Rehearing Denied Oct. 23, 1978.

Thomas M. Jackson, Macon, for appellant.

Martin, Snow, Grant & Napier, R. Napier Murphy, John T. McGoldrick, Jr., Macon, for appellees.

DEEN, Presiding Judge.

1. The claimant in this workmen's compensation case had worked for the employer for approximately 20 years at labor involving heavy lifting, which had given him increasing back trouble. He was eventually struck in the back by a guardrail on March 4, 1974, returned to work, but was declared permanently disabled as of March 6. His claim for workmen's compensation was not filed until February 28, 1977, allegedly due to the fraud of the employer. He has had back surgery which failed to correct the condition. After hearing, the administrative law judge found that "the evidence is sufficient to show that the claimant was misled by the company employees . . . I further find that claimant was wilfully deceived about workmen's compensation coverage." This award held the one-year statute of limitations (Code § 114-305) was tolled and awarded compensation. On appeal, the full board, after a de novo consideration of all the evidence, adopted all the findings of the administrative law judge as its findings "except the legal conclusion that there was fraud on the part of the employer/insurer sufficient to estop them from raising the statute of limitation defense." This award was affirmed by the judge of the Superior Court of Bibb County and the claimant appeals.

2. Contrary to the usual situation in workmen's compensation cases, this appeal presents an issue of law only. We have examined the evidence and are satisfied that it is correctly summarized in the first award. That award has been adopted by both the administrative law judge hearing the case and the full board in a de novo proceeding. The only distinction is that the former award finds the facts stated sufficient to toll the one-year statute of limitations, while the second award finds them insufficient for that purpose.

3. The one-year statute of limitations required by Code § 114-305 has been held jurisdictional "but if fraud practiced by the employer or his insurance carrier prevents the employee from filing his claim the statute of limitation will be tolled, provided the employee acts promptly upon discovery of the fraud." Fidelity, etc., Co. v. Bishop, 108 Ga.App. 422, 423, 133 S.E.2d 51, 52 (1963). The fraud which will toll the limitation is described in Day v. Bituminous Cas. Corp., 141 Ga.App. 555, 556, 234 S.E.2d 142, 144 (1977) as "an intentional act of concealment or misrepresentation which would operate as a deterrent to claimant to file a claim with the Workmen's Compensation Board," citing Hartford, etc., Co. v. Snyder, 126 Ga.App. 31, 189 S.E.2d 919 (1972). It is also described in Whelchel v. American Mut., etc., Ins. Co., 54 Ga.App. 511, 513, 188 S.E. 357, 358 (1936) as "an affirmative act or concealment or misrepresentation preventing an inquiry." The fraud necessary to toll the statute of limitations in workmen's compensation cases is dealt with in 15 A.L.R.2d Anno., 500, 520, § 9: "Whatever may be the theoretical concept of the nature of the benefit or particular right of action conferred by a workmen's compensation act, and however sweeping the limitation provision may be, the ultimate purpose of the legislation seems to have persuaded the majority of the courts not to regard enforcement of the right as conditioned upon commencement of...