United States Cas. Co v. Smith, (No. 5106.)

• Decision Date: 15 April 1926
• Docket Number: (No. 5106.)
• Citation: 162 Ga. 130,133 S.E. 851
• Parties: UNITED STATES CASUALTY CO. et al. v. SMITH.
• Court: Georgia Supreme Court

162 Ga. 130

133 S.E. 851

UNITED STATES CASUALTY CO. et al.

v.SMITH.

(No. 5106.)

Supreme Court of Georgia.

April 15, 1926.

Rehearing Denied June 28, 1926.

(Syllabus by Editorial Staff.)

Gilbert, J., dissenting.

Certiorari rrom court of Appeals.

Proceeding under the Workmen's Compensation Act by C. L. Smith, claimant, opposed by the United States Casualty Company, the insurance carrier, and another. Settlement of compensation claim between the insurance carrier and the employee was approved by the Industrial Commission. Claimant's application for review of original award and to recover additional compensation was granted, and compensation was awarded. Judgment of the superior court, denying insurance carrier's appeal, was affirmed by the Court of Appeals (129 S. E. 880), and it brings certiorari. Affirmed.

McDaniel & Neely and Harry L. Greene, all of Atlanta, for plaintiff in error.

Hendrix & Buchanan, of Atlanta, for defendants in error.

Syllabus Opinion by the Court.

PER CURIAM. 1. An employee applied to the Industrial Commission for compensation for an injury caused by his "being burned on the back of the neck by steam and poisoned by ammonia gas" while in the service of his employer. He asked compensation for a temporary total disability. Pending this application the employee and employer entered into a written agreement of settlement by which the latter was to pay the former $12 weekly, beginning September 5, 1921, during disability. In this writing the parties further agreed that the facts therein stated and the amounts to be paid thereunder are in strict accordance with our Compensation Law (Laws 1920, p. 167), and they further agreed to receive and pay compensation and such other amounts as may be determined from the nature, extent, duration, and result of the injury therein described. On December 29, 1921, the employee gave to the employer his receipt for $108. This receipt recited that the above sum was the final payment of compensation due the employee under our Compensation Law for all injuries received by him on the date of the above accident, which covered a period of nine weeks. On the same day the employee and the insurance carrier entered into an agreement in which the latter, in consideration of the re lease therein set out, agreed to pay voluntarily to the former compensation in accordance with the terms of said act, and at the weekly rate of $12 for nine weeks, on account of injuries sustained by the employee at the date of the above accident, and in consideration of said agreement the employee released and forever discharged the employer and the insurer "from all claims and demands whatsoever, whether enforceable in law, by reason of the above-stated injury." The above agreements were approved by the commission. On August 18, 1923, the employee applied to the commission to review its former award and to grant him additional compensation for the loss of one of his arms, amputated on July 4, 1922, which loss was brought about, as he alleged, by the disease of blastomycocis which resulted from said injury, and which was brought about by a vegetable germ which entered his body and blood through the break of the skin of his neck due to said burn. In defense the employer and insurer set up the above release. The Court of Appeals held that said release did not bar "such application for review, nor preclude an award thereon contrary to the stipulation." United States Casualty Co. v. Smith, 34 Ga..App. 363, 129 S. E. 880. The employer and insurer, in their certiorari to review the decision of the Court of Appeals, assign error on this ruling.

The original application of the employee being for compensation for temporary total disability arising from a burn on bis neck and ammonia poisoning, for which the employer and insurer paid him nine weekly payments of $12 each, and in consideration of such voluntary payment of such compensation by the insurer the employee having released and forever discharged the employer and the insurer "from all claims and demands whatsoever * * * by reason of the above-stated injury, " such release did not bar the application of the employee, under section 45 of the Workmen's Compensation Law, to review the original award and to recover additional compensation for a disease which subsequently resulted naturally and unavoidably from said injury. The agreement of settlement between the employee and employer and the one between the employee and the insurance carrier were made upon the assumption by the parties that the employee was only entitled to compensation for the burn on the back of his neck and for the ammonia poison, and the release was executed on the same assumption; for which reason the release does not preclude the employee from claiming compensation for another injury superinduced by the original injury. Zinken v. Melrose Granite Co.. 143 Minn. 397, 173 N. W. 857; Mass. Bonding & Insurance Co. v. Industrial Accident Com., 176 Cal. 488, 168 P. 1050; Lemieux v. Case, 223 Mass. 346, 111 N. E. 782.

The settlement agreement expressly provided that the employer was to pay such other amounts as might be determined to be due the employee on account of the nature, duration, and result of the injury. Construing the release in the light of this" provision, and in view of section 45 of the Workmen's Compensation Act, the effect of the release was to discharge the employer and insurer from all claims and demands whatsoever growing out of the injury for which the employee was then seeking compensation, that is, for the burn and ammonia poison, but did not preclude the employee from claiming compensation for another injury superinduced by the original accident.

2. The Court of Appeals held that the limitation prescribed in section 25 of the Workmen's Compensation Act has no application to a proceeding brought by an employee to review an award or settlement under section 45 of that act. Petitioners assign error upon this ruling of the Court of Appeals. Section 25 of this act declares that:

"The right to compensation under this act shall be forever barred, unless a claim be filed with the Industrial Commission within one year after the accident and if death results from the accident, unless a claim therefor is filed with the commission within one year thereafter." Acts 1920, pp. 167, 181; 9 Park's Code Supp. 1922, § 3154 (y).

Unless the claim for compensation under this law is filed with the commission within one year after the accident, or, if death results from the accident, within one year thereafter, the right to compensation is forever barred. The riling 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. Podkastelnea v. Michigan Cent. R. Co., 19S Mich. 321, 164 N. W. 418; Kalucki v. American Car & Foundry Co., 200 Mich. 604, 166 N. W. 1011; Dane v. Michigan United Traction Co., 200 Mich. 612, 166 N. W. 1017; Schild v. Pere Marquette R. Co., 200 Mich. 614, 166 N. W. 1018; Haiselden v. Industrial Board of Illinois, 275 111. 114, 113 N. E. 877; Peterson v. Fisher Body Co., 201 Mich. 529, 167 N. W. 987; Rubin v. Fisher Body Cor., 205 Mich. 605, 172 N. W. 534; Brown v. Westen-Mott Co., 202 Mich. 592, 168 N. W. 437; Schwartz v. Hartman Furniture & Carpet Co., 205 111. App. 330; Petraska v. National Acme Co., 95 Vt. 76, 113 A. 536; Ohio Dil Co. v. Industrial Commission, 293 111. 461, 127 N. E. 743; Stein v. Packard Motor Car Co., 210 Mich. 374, 178 N. W. 61;-Twonko v. Rome Brass & Copper Co., 224 N. Y. 203, 120 N. E. 638.

Section 45 of this act provides that:

"Upon its own motion before judicial determination or upon the application of any party in interest on the ground of a change in con dition, the Industrial Commission may at any time review any award or any settlement made between the parties and filed with the commission, and, on such review, may make an award ending, diminishing or increasing the compensation previously awarded or agreed upon, subject to the maximum or minimum provided in this act. * * * No such review shall, effect such award as regards any moneys paid." Acts 1920, pp. 167, 191; 9 Park's Code Supp. 1922, § 3154 (ss)..

A proceeding for review, brought in a proper case under this section, is not barred by the limitation prescribed in section 25. A proceeding to review an award or settlement under section 45 may be brought "at any time." The language, "at any time, " does not give to an employee unlimited time in which to file his proceeding to review. Such proceeding must be brought: (a) Before the matter sought to be reviewed has been judicially determined;...