Attaway v. First National Bank, 175 S.E. 258

Attaway v. First National Bank

175 S.E. 258

Ga. Ct. App.

1934

Check Treatment

Jenkins, P. J.

1. Section 25 of the workmen’s compensation act provides that “the right to compensatiоn under this act shall be forever barred, unless a claim be filed with the industrial commission [now the Department of Industrial Relations] ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍within one year after the accident.” Ga. L. 1920, pp. 167, 181; Ga. L. 1925, pp. 282, 284; Michie’s Code, § 3154(25). This provision operating as a “limitation оf the liability as created, and not of the remedy alone” (Seaboard Air-Line Ry. Co. v. Brooks, 151 Ga. 625, 627, 107 S. E. 878; Porter v. Liberty Mutual Ins. Co., 46 Ga. App. 86, 89, 166 S. E. 675), “the filing of the claim for compеnsation 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 comрensation.” U. S. Casualty Co. v. Smith, 162 Ga. 130, 133 (133 S. E. 851); Bussey v. Bishop, 169 Ga. 251 (150 S. E. 78, 67 A. L. R. 287). The record in the instant case аffirmatively showing that the claimant was injured on June 15, 1931, but that he did not file his claim with the Department of Industrial Relations until February 4, 1933, his ignorance of the statutory ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍rеquirement, or the gratuitous payment by his employer of contributions for the support of himself and his fаmily within one year prior to the filing of his claim, would nоt operate to toll the statute, and the department properly dismissed his claim.

2. While section 45 of the workmen’s compensation act authorizes the Department of Industrial Relations “at any time [to] review any award or any settlement made between the parties and filed with the [department],” upon “its own motion before judiсial determination, or upon the application of any party in interest on the ground of a change in condition,” and while section 19 of thе act requires that a copy of any settlеment agreement shall be filed by the employer with the department, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍these provisions have nо application to prevent the bar of the instant claim, since it is shown by the record that the injured employee never filed any application to “review any award or any settlement made between the parties,” but merely а claim, and that the payments made to the employee by the-employer after the injury were not made as a “settlement” or purpоrted settlement, but merely as a gratuity without obligatiоn or as a consideration for any releаse by the employee, for *271his financial assistance in his sickness from tuberculosis and possible disease of the gall bladder. The evidence does not clearly disclose and the depаrtment ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍did not determine whether this disability arose priоr to or independently of the injury; and it is unnecessary to consider this question. Judgment affirmed.

Decided June 19, 1934. Ben T. Blackmon, John W. Bolton, for plaintiff. Brandon, Hynds & Tindall, for defendant. Stephens and Sutton, JJ., concur.