Roddy v. Hartford Accident & Indemnity Co.

The superior court erred in affirming the finding of the director, approved by the Industrial Board. The judgment is reversed, with direction that the court reverse the finding above indicated with direction that the award be the sum of $850.63 as originally found by the director.

DECIDED MAY 21, 1941. ADHERED TO AN REHEARING, JULY 31, 1941. A. F. Roddy excepts to the judgment of the superior court sustaining the ruling of the Industrial Board in dismissing his claim against the American Credit Indemnity Company and the Hartford Accident and Indemnity Company for certain alleged injuries. By agreement of counsel for both sides the following evidence was stipulated: "On March 24, 1934, A. F. Roddy was in the employment of the American Credit Indemnity Company under a contract of employment; . . that at that time the American Credit Indemnity Company was operating under the provisions of the Georgia workmen's compensation act, and that it was insured under that act by the Hartford Accident and Indemnity Company, and that the employer had notice of this accident sustained by Mr. Roddy within thirty days of the occurrence; . . that if Dr. J. P. Haskin and Dr. O. G. Hughes were present that they would testify that the claimant had partial loss of use of his leg as the result of the accident which they estimate to be between ten and fifteen per cent. . . The accident was in Whitfield County." On March 20, 1935, Roddy, through his attorney, made a claim for compensation with the Industrial Board, and added the following paragraph: "I desire that the hearing on this claim be postponed upon the outcome of my common-law suit now pending or any that may be filed." Ignoring this request, on March 21, the Industrial Board notified the claimant's attorney that a hearing would be held on the case on the next schedule held in the northwestern part of the State. Counsel for claimant replied in part as follows: "If you will refer to the last paragraph of the notice you will note that we do not want this case set for hearing at the present time." On March 26, 1935, the Industrial Board advised counsel and claimant that the case would not be docketed for hearing until the court had disposed of the common-law suit. Then, in December, 1939, counsel and claimant notified the Industrial Board that a hearing in the case was desired. In a hearing held February 14, 1940, before the single director, upon written notice by the employer and the insurance carrier, the director dismissed the claim upon the ground that it had not been filed with the Industrial Board within twelve months from the accident. This award was affirmed by the full board, and, upon appeal, by the superior court.

This case is brought before the Court of Appeals on the question whether the statute of limitations had run as provided by Code, § 114-305. The claim was denied on the ground that it was not filed with the Industrial Board within the twelve-month period allowed from the date of the accident. This court held inBituminous Casualty Corporation v. Mallory, 63 Ga. App. 714 (12 S.E.2d 112): "The Georgia compensation act does not require any technical or formal filing of a claim." In the instant case, as in the Mallory case, supra, the record does not disclose that the attorney or the defendant or any person representing the Industrial Board did or said anything that amounted to "an interference with the usual course of legal procedure." Nor does it appear that any objection was raised during the time between the filing of the claim on March 20, 1935, until December, 1939, when the claimant notified the Industrial Board that a hearing in this case was desired. In fact, a hearing was held on February 14, 1940, before the single director, whose decision was later confirmed by the full board. It is the opinion of this court that the ruling in the Mallory case is controlling, and is not contrary to the findings inJordan v. Bosworth, 123 Ga. 879 (51 S.E. 755), andFoster v. First National Bank of Atlanta, 56 Ga. App. 880 (194 S.E. 225). In the Jordan case the court held: "Handing to the clerk a petition, with instructions to indorse upon it an entry of filing and to issue process, but `to hold it' until the plaintiff notifies him further, is not a filing of a suit or the commencement of an action, within the meaning of the Civil Code, § 4973[81-112], until the instructions are withdrawn; and if the bar of the statute of limitations attaches before the instructions are withdrawn, the suit is barred notwithstanding service was regularly perfected after the withdrawal of the instructions." (Italics ours.) In the Foster case, supra, page 881, the court held: "After the claimant had filed the claim with the department on July 9, 1935 [the accident occurring July 17, 1934], at his own request and direction the claim was withheld from the employer until January 3, 1936, which was more than a year after the date of the accident," and was consequently barred under the provisions of Code, § 114-305. In the instant case, the usual course of legal procedure was in essence regular, notwithstanding final hearing and decision were delayed more than twelve months, the bar of the statute. Code, § 114-305. The filing of the claim was regular and legal, and within the time allowed by this section. No subsequent action voided this act.

We come next to determine the amount of compensation which the claimant is entitled to recover. On this point the director held: "The evidence in this case having shown that claimant was confined to bed from the date of the accident to about June 1, 1934, and that thereafter he was only able to hobble about on crutches with his leg in a cast up to approximately November 1, 1934, and that after the cast was removed he was still unable to use the leg sufficiently to return to his regular work until December 7, 1934, claimant during this entire period was suffering a total loss of use of his left leg, and is therefore entitled to compensation at the rate of $15 per week for the total loss of use of his left leg during this period of 35 5/6 weeks, or the total sum of $537.50. The evidence having shown that at the expiration of this period claimant's condition had changed to such an extent that he was able to return to work; and that he thereafter suffered a fifteen per cent. permanent partial loss of use of his left leg, he is entitled to compensation from and including December 8, 1934, at the rate of $2.25 per week for a period of 139 1/6 weeks or a total of $313.13, making a total of $850.63 payable to the claimant as compensation for his injury. Although sections 114-404 and 114-405 provide for compensation on the basis of a decrease in earnings, section 114-406 provides compensation for the loss, or loss of use, of a member irrespective of the earning ability of a claimant after an accident is sustained. In other words, had the claimant in this case sustained a total loss of his left leg, and within ten weeks after the injury occurred had been able to return to his regular job at an increase in his earnings, he would still be entitled to compensation for the total loss of his leg."

The facts in the case of Castle v. Imperial Laundry and DryCleaning Co., 62 Ga. App. 184 (8 S.E.2d 547), are distinguishable from the facts of this case. In the Castle case, this court held: "The injury did not come within the schedule of injuries in § 114-406; for the injury was not the `loss of a hand,' but was an injury to the hand which was cured within ten days after he returned to work." Further, it was held that if the claimant was entitled to compensation at all it would be under either Code, § 114-404, covering total disability, or Code, § 114-405, covering partial disability, for loss of earning capacity; but since he earned the wages, he was not entitled to compensation under those sections, and since there was no permanent injury to or loss of use of his hand to any extent.

We think that the law of compensation under the workmen's compensation act as applied to the facts in this case is correctly stated by the director. Therefore, since we have held that the case was properly filed and was in order for final disposition on the merits thereof, we hold that the claimant is entitled to receive the total sum of $850.63. The judgment of the superior court affirming the finding of the director approved by the Industrial Board is reversed with direction that the claimant be allowed compensation in the amount above stated.

Judgment reversed, with direction. Broyles, C. J., andMacIntyre, J., concur.