Spiva v. Union County

• Decision Date: 19 September 1984
• Docket Number: No. 68613,68613
• Parties: SPIVA v. UNION COUNTY et al.
• Court: Georgia Court of Appeals

Page 351

322 S.E.2d 351

172 Ga.App. 151

SPIVA v. UNION COUNTY et al.

No. 68613.

Court of Appeals of Georgia.

Sept. 19, 1984.

B. Larry Fowler, Cleveland, for appellant.

Robert L. Husby, Jr., Gainesville, for appellees.

BIRDSONG, Judge.

This is an appeal from the superior court's affirmance of the award of the State Board of Workers' Compensation in favor of the employer/insurer. The board's award denied compensation on the ground that the claimant's injury did not arise out of and in the course of his employment and ordered the claimant to reimburse the insurer $22,075.63 in previously paid compensation and medical benefits. Appellant's five enumerations of error question whether the insurer was entitled to controvert compensation in view of the fact that the notice to controvert was not filed until 23 months after appellant's injury and payments were made of $22,075.63 in benefits, and whether the insurer was entitled to reimbursement of compensation and medical benefits previously paid to appellant.

The facts of this case are basically undisputed. Appellant was injured when his own tractor overturned on him while he was plowing his garden on his home property. Appellant was injured on a Saturday and performed no services for his employer. Aside from being "on 24-hour call," he owed no work responsibility on that Saturday. Nevertheless, he was paid on that date as if he had worked. The employer unilaterally completed a first report of injury which was submitted to the insurer. The report contained no misrepresentation as to the cause, place, or nature of appellant's injury, but represented falsely that the injury arose out of and in the course of his employment. Appellant presented testimony that he was contacted on two separate occasions by the insurer's representatives. The first contact occurred one or two weeks after the accident by telephone. The second occurred months later to inquire as to claimant's progress. The claim was not controverted until 23 months after the accident, when the insurer was notified that the Federal Bureau of Investigation was interested in the claim file. The insurer showed that the claim as submitted and verified by the employer was regular on its face and presented no reason to question the assertion that Spiva was injured on the job. At the trial of the issue, however, the employer, the secretary filing the claim, and Spiva all knew and questioned the accurateness of the employment status but never disclosed that there existed a questionable status. Held:

1. The board found that, although the employer/insurer had failed to comply with the 21-day notice to controvert requirement (OCGA § 34-9-221(d)), "the employee and the employer mislead and misrepresented the claim to the insurer. Therefore, the running of the statute of limitation was tolled."

The finding by the board that the 21-day limitation was tolled because of misrepresentation on the part of the employer and/or appellant is at least minimally supported in the record. The evidence shows that Spiva was contacted shortly after his accident by a representative of the insurer. The contact was made by telephone. While the record contains no evidence that appellant at any time affirmatively misrepresented to the insurer any fact relevant to his claim and shows that appellant responded to all questions or inquiries from the insurer truthfully, he did not disclose the questionable circumstances of an injury occurring during private endeavors for which damages were being collected as for a work-related injury. Under these circumstances, including the fact the employer, by filing a notice of accident, impliedly misrepresented to the insurer that Spiva was engaged in county work at the time of the accident, the insurer was further mislead by Spiva's failure to explain the true circumstances surrounding the injury. Therefore, the alleged fraud or misrepresentation as to the nature of the incident provided adequate basis upon which to toll the time within which the employer/insurer could controvert this claim. See e.g., Shipman v. Horizon Corp., 245 Ga. 808, 267 S.E.2d 244 (statute of limitation for civil action tolled by fraud until fraud would have been discovered).

2. Moreover, the failure to controvert this claim for 23 months did not prevent the employer/insurer from contesting the claim at a subsequent date. "We do not agree ... that failure to file such notice [to controvert] within 21 days acts as an estoppel preventing an employer and insurer from controverting a claim for compensation. The General Assembly has provided other sanctions against...