2020 Georgia Code
Title 34 - Labor and Industrial Relations
Chapter 9 - Workers' Compensation
Article 3 - Procedure
Part 1 - Claims and Notice of Accident
§ 34-9-82. Limitation Period and Procedure for Filing Claims

Universal Citation: GA Code § 34-9-82 (2020)
  1. The right to compensation shall be barred unless a claim therefor is filed within one year after injury, except that if payment of weekly benefits has been made or remedial treatment has been furnished by the employer on account of the injury the claim may be filed within one year after the date of the last remedial treatment furnished by the employer or within two years after the date of the last payment of weekly benefits.
  2. The right to compensation for death shall be barred unless a claim therefor is filed within one year after the death of the employee.
  3. The claim shall be filed with the board and should contain such information as may be prescribed by rule or regulation of the board.
  4. The filing of any claim for injury or death under this chapter with any of the board's offices throughout the state shall be deemed proper filing with the board.

(Ga. L. 1920, p. 167, § 25; Ga. L. 1925, p. 282, § 2; Code 1933, § 114-305; Ga. L. 1978, p. 2220, § 2.)

Cross references.

- Time limitation on filing claims for disability or death resulting from occupational disease, § 34-9-281.

Law reviews.

- For article discussing injury as a result of aggravation, see 14 Ga. St. B. J. 135 (1978). For article, "Change in Condition and New Accident: The Difference Between the Two, Elements of Each, and Burdens of Proof," see 46 Mercer L. Rev. 35 (1994). For article on annual survey of workers' compensation, see 38 Mercer L. Rev. 431 (1986). For annual survey article discussing workers' compensation law, see 52 Mercer L. Rev. 505 (2000). For article, "Workers' Compensation," see 53 Mercer L. Rev. 521 (2001). For annual survey of law of workers' compensation, see 56 Mercer L. Rev. 479 (2004). For annual survey on workers' compensation law, see 66 Mercer L. Rev. 247 (2014). For annual survey of workers' compensation, see 67 Mercer L. Rev. 287 (2015). For annual survey of workers' compensation, see 68 Mercer L. Rev. 333 (2016). For annual survey on decisions impacting workers' compensation, see 69 Mercer L. Rev. 357 (2017). For note discussing compensation under the Georgia Workers' Compensation Act original injuries aggravated by subsequent injury, continued employment, or ordinary activity, see 31 Mercer L. Rev. 325 (1979).

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Limitation Period
  • Tolling of Limitation
  • Procedure for Filing Claim
General Consideration

To be compensable, an "accident" claim must be filed within one year of the original job-related incident of which the employer was timely notified and requires a causal connection between the conditions under which the work was required to be performed and the injury which forms the basis for the claim. Slattery Assocs. v. Hufstetler, 161 Ga. App. 389, 288 S.E.2d 654 (1982).

One-year limitation is for the benefit of the employer and insurance carrier in order to prevent claims from being filed after long lapses of time, which would result in much difficulty in establishing the truth and subject the employer and insurance carrier to greater risks. St. Paul Mercury Indem. Co. v. Oakley, 73 Ga. App. 97, 35 S.E.2d 562 (1945).

One-year limitation is for the benefit of the employer and insurance carrier in order to prevent claims from being filed after long lapses of time. State Hwy. Dep't v. Cooper, 104 Ga. App. 130, 121 S.E.2d 258 (1961).

Two-year limitation triggered by weekly benefit payments.

- O.C.G.A. § 34-9-82 does not distinguish between payments of weekly benefits made voluntarily and those made otherwise; all that is required to trigger the two-year limitation is that the payment, whether voluntarily made or not, was tendered as a weekly benefit on account of the injury. Harper v. L & M Granite Co., 197 Ga. App. 157, 397 S.E.2d 739 (1990).

Word "claim" as used in this section was coextensive with "case" and embraces the counterclaim of an employee as well as the claim of the employer. The employer having instituted or filed a "case" seeking a hearing in regard to the matter at issue and the employee having responded, it was unnecessary for the employee to file a claim other than the one set up in the employee's answer so long as the "case" was pending. Metropolitan Cas. Ins. Co. v. Maloney, 56 Ga. App. 74, 192 S.E. 320 (1937).

Term "weekly benefits" under O.C.G.A. § 34-9-82(a) does not refer to only those weekly benefits provided under O.C.G.A. §§ 34-9-261 and34-9-262, which compensate for income loss, but also includes permanent partial disability benefits paid pursuant to O.C.G.A. § 34-9-263 so as to extend the statute of limitation period for filing a claim to two years after the date of the last such payment. Mickens v. Western Probation Detention Ctr., 244 Ga. App. 268, 534 S.E.2d 927 (2000).

Issue of fact as to applicability of statute.

- Because there was a genuine issue of fact as to whether the defendant's stepson was an employee thereby subjecting the defendant to the Workers' Compensation Act, O.C.G.A. § 34-9-1 et seq., there was no "admitted" failure to comply with the Act's requirements for maintaining and posting a panel of physicians. The plaintiff's failure to properly file a claim within the statute of limitations resulted in the claim being time-barred. Gann v. Poe, 236 Ga. App. 138, 512 S.E.2d 1 (1999).

Construed with § 34-9-206. - When a claimant was injured in 1985, but did not file a claim for Workers' Compensation benefits until July 1987, the claim was barred by the statute of limitations contained in O.C.G.A. § 34-9-82, and neither the employer nor its compensation carrier was liable. Thus, neither the employer nor its compensation carrier was liable to the group health provider under O.C.G.A. § 34-9-206 for medical expenses incurred by the claimant from 1985 to July 1987 for treatment of the 1985 work-related injury. State Wholesalers, Inc. v. Parks, 194 Ga. App. 900, 392 S.E.2d 64 (1990).

Adequate remedy at law.

- Under the proviso of Ga. L. 1923, p. 282, § 2, the employee has an adequate remedy at law, and for this reason the employee cannot apply to a court of equity for relief. Bishop v. Bussey, 164 Ga. 642, 139 S.E. 212 (1927).

Section not applicable to occupational diseases.

- There was ample evidence to support the determination that the claimant's pneumoconiosis was an occupational disease; therefore, the specific statute of limitation applicable to occupational diseases as set forth in O.C.G.A. § 34-9-281(b)(2) should control, instead of the statute generally applicable to compensable injuries found in O.C.G.A. § 34-9-82(a). American Int'l Adjusting Co. v. Davis, 202 Ga. App. 276, 414 S.E.2d 292 (1991).

Notice requirements met.

- Former employer's claim that the employer lacked notice and an opportunity to be heard regarding a workers' compensation claimant's lower back injury was without merit because the employer did not show that the notice requirement was breached; the claimant's notice of claim and request for a hearing gave notice that the claimant was seeking medical and temporary total disability benefits as a result of two accidents. R.R. Donnelley v. Ogletree, 312 Ga. App. 475, 718 S.E.2d 825 (2011), cert. denied, No. S12C0480, 2012 Ga. LEXIS 659 (Ga. 2012).

Cited in Clark v. Maryland Cas. Co., 39 Ga. App. 668, 148 S.E. 286 (1929); Blanchard v. Savannah River Lumber Co., 40 Ga. App. 416, 149 S.E. 793 (1929); Thigpen v. Hall, 46 Ga. App. 356, 167 S.E. 728 (1933); U.S. Fid. & Guar. Co. v. Youmans, 49 Ga. App. 678, 176 S.E. 808 (1934); Richey v. First Nat'l Bank, 180 Ga. 751, 180 S.E. 740 (1935); Hicks v. Standard Accident Ins. Co., 52 Ga. App. 828, 184 S.E. 808 (1936); Foster v. First Nat'l Bank, 56 Ga. App. 880, 194 S.E. 225 (1937); City of Brunswick v. King, 65 Ga. App. 44, 14 S.E.2d 760 (1941); GMC v. Pruitt, 83 Ga. App. 620, 64 S.E.2d 339 (1951); Davison-Paxon Co. v. Ford, 88 Ga. App. 890, 78 S.E.2d 257 (1953); Skinner Poultry Co. v. Mapp, 98 Ga. App. 772, 106 S.E.2d 825 (1958); Employers Mut. Liab. Ins. Co. v. Shipman, 108 Ga. App. 184, 132 S.E.2d 568 (1963); Sherrill v. U.S. Fid. & Guar. Co., 108 Ga. App. 591, 133 S.E.2d 896 (1963); Noles v. Aragon Mills, 110 Ga. App. 374, 138 S.E.2d 598 (1964); Davis v. Liberty Mut. Ins. Co., 110 Ga. App. 389, 138 S.E.2d 603 (1964); Benefield v. Harriett & Henderson Cotton Mills, Inc., 113 Ga. App. 556, 149 S.E.2d 196 (1966); Harrison v. Hartford Accident & Indem. Co., 117 Ga. App. 404, 160 S.E.2d 601 (1968); Mason v. City of Atlanta, 124 Ga. App. 849, 186 S.E.2d 285 (1971); Blackwell v. Liberty Mut. Ins. Co., 127 Ga. App. 146, 193 S.E.2d 43 (1972); House v. Echota Cotton Mills, Inc., 129 Ga. App. 350, 199 S.E.2d 585 (1973); Continental Ins. Co. v. Hickey, 139 Ga. App. 31, 227 S.E.2d 848 (1976); Travelers Ins. Co. v. Thigpen, 140 Ga. App. 179, 230 S.E.2d 341 (1976); U.S. Asbestos v. Hammock, 140 Ga. App. 378, 231 S.E.2d 792 (1976); Mayor of Savannah v. George, 145 Ga. App. 57, 243 S.E.2d 259 (1978); Hall v. Hartford Ins. Group, 146 Ga. App. 751, 247 S.E.2d 570 (1978); Walker v. Liberty Mut. Ins. Co., 147 Ga. App. 201, 248 S.E.2d 330 (1978); Strickland v. American Motorists Ins. Co., 149 Ga. App. 690, 256 S.E.2d 92 (1979); N.L. Indus. v. Childs, 150 Ga. App. 866, 258 S.E.2d 667 (1979); Joyce v. Paul Hayes Amoco Serv. Station, 161 Ga. App. 373, 288 S.E.2d 266 (1982); Southern Bell Tel. & Tel. Co. v. Hodges, 164 Ga. App. 757, 298 S.E.2d 570 (1982); Georgia Inst. of Technology v. Gore, 167 Ga. App. 359, 306 S.E.2d 338 (1983); Georgia-Pacific Corp. v. Sanders, 171 Ga. App. 799, 320 S.E.2d 850 (1984); ITT-Thompson Indus., Inc. v. Wheeler, 179 Ga. App. 92, 345 S.E.2d 614 (1986); Paideia Sch. v. Geiger, 192 Ga. App. 723, 386 S.E.2d 381 (1989); Robinson v. J. Smith Lanier & Co., 220 Ga. App. 737, 470 S.E.2d 272 (1996); Baugh-Carroll v. Hospital Auth., 248 Ga. App. 591, 545 S.E.2d 690 (2001); D.W. Adcock, M.D., P.C. v. Adcock, 257 Ga. App. 700, 572 S.E.2d 45 (2002).

Limitation Period

1. Application of Limitation

Bar only applies to valid claims.

- It cannot be said that a case is barred by the statute of limitations unless it appears that there was a valid claim to be so barred. Free v. Associated Indem. Corp., 78 Ga. App. 839, 52 S.E.2d 325 (1949).

Applies to original claims by those entitled to compensation in first instance.

- When the claimants were partial dependents of the deceased employee, and, if entitled to compensation, they would be so entitled in the first instance as their child, the deceased employee, was killed instantly in the accident, and no compensation had been paid to anyone, the one-year limitation for filing a claim as provided by this section applied to a partial dependent when the partial dependent would be entitled to compensation in the first instance, but it did not apply to a dependent secondarily entitled to remaining compensation. Great Am. Indem. Co. v. Usry, 87 Ga. App. 821, 75 S.E.2d 270 (1953).

One-year statutory limitation of this section applied to original claims, whether filed by the employee or, if the employee had not filed a claim at the time of death, by the employee's dependents, who would be entitled to compensation in the first instance. Gordy v. Callaway Mills Co., 111 Ga. App. 798, 143 S.E.2d 401 (1965).

This section did not apply to a claim filed by a partial dependent contingently entitled to the remaining part of an award made in the first instance to one primarily entitled thereto. Bituminous Cas. Corp. v. Johnson, 79 Ga. App. 105, 53 S.E.2d 119 (1949).

Unless a statute of limitations expressly or by necessary implication is made applicable to causes of action already barred when it is passed, it will not be held to apply thereto. Bussey v. Bishop, 169 Ga. 251, 150 S.E. 78 (1929).

Effect of withdrawal.

- Written notice of claimant by claimant's authorized attorneys withdrawing the case and the acknowledgment by the department construing the request "that the application for a hearing in the above case be withdrawn," and stating that, "in accordance therewith, this case is being withdrawn from our calendar," amounted to a full and complete relinquishment and withdrawal of the notice prescribed by this section with the result that a belated claim filed more than four years thereafter came too late. Maryland Cas. Co. v. Gill, 46 Ga. App. 746, 169 S.E. 245 (1933).

Provisions of former Code 1933, § 102-102 (see now O.C.G.A. § 1-3-1(d)(3)) to the effect that when a number of days is prescribed for the exercise of any privilege and the last day shall fall on a Saturday or Sunday, the party having such privilege shall have through the following Monday to exercise such privilege, do not apply to limitations expressed in months or years and to the limitation fixed by former Code 1933, § 114-305 (see now O.C.G.A. § 34-9-82) so as to extend the time for filing a claim under the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.). Chevrolet Parts Div., GMC v. Harrell, 100 Ga. App. 280, 111 S.E.2d 104 (1959).

When a claimant was injured in an accident which occurred on October 26, 1957, and the claim and request for a hearing thereon was mailed to the board on October 25, 1958, which date happened to have fallen on a Saturday, and the claim and request for hearing were not received by the board until Monday, October 27, 1958, it was filed too late, and the deputy director properly dismissed it when those facts were made to appear. Chevrolet Parts Div., GMC v. Harrell, 100 Ga. App. 280, 111 S.E.2d 104 (1959).

There is no limitation upon the time within which a claim must be heard and adjudicated. State Hwy. Dep't v. Cooper, 104 Ga. App. 130, 121 S.E.2d 258 (1961).

Limitation not applicable to additional compensation claims.

- A claim for additional compensation, filed under former Code 1933, § 114-709 (see now O.C.G.A. § 34-9-104), was not subject to the limitation set forth in former Code 1933, § 114-305 (see now O.C.G.A. § 34-9-82). Campbell Coal Co. v. Render, 48 Ga. App. 547, 173 S.E. 245 (1934); Automatic Sprinkler Corp. of Am. v. Rucker, 87 Ga. App. 375, 73 S.E.2d 609 (1952); Old Colony Ins. Co. v. Bennett, 108 Ga. App. 499, 133 S.E.2d 415 (1963).

Limitation not applicable to continued cases.

- When the "case" or "claim" of the employer and the appearance and answer of the employee were all filed within 12 months and none of them had ever been withdrawn with the approval or consent of the court or the department (now board), and the case was continued, it was still pending, and while so pending, could be reset and tried, consequently the statute of limitations did not apply. Metropolitan Cas. Ins. Co. v. Maloney, 56 Ga. App. 74, 192 S.E. 320 (1937).

When original injury becomes disabling.

- If the employer is given notice of the employee's original accident and the employee's condition gradually worsens to the point of disability and a claim is filed for this subsequently occurring disability within one year of the original accident itself, the requirements of both O.C.G.A. §§ 34-9-80 and34-9-82 are met. Mason, Inc. v. Gregory, 161 Ga. App. 125, 291 S.E.2d 30 (1982).

Subsequent, aggravating accident.

- Award arising from "new accident" must be predicated upon filing claim within one year from either the date the claimant was forced to cease work because of the gradual worsening of claimant's condition (which was at least partly attributable to claimant's physical activity in continuing to work subsequent to this original job-related incident) or the date of the occurrence of a subsequent specific job-related incident which aggravates the claimant's pre-existing, and theretofore, uncompensated condition. Slattery Assocs. v. Hufstetler, 161 Ga. App. 389, 288 S.E.2d 654 (1982).

New injury resulting from employment related prior injury.

- When the employee continued working following the employee's initial injury and, more than one year later, sought medical benefits for an aggravation to the employee's pre-existing injury, evidence was sufficient to establish that the employee suffered a "new injury by accident" and the employee's claim was not barred by the statute of limitations. UPS v. Culpepper, 219 Ga. App. 534, 465 S.E.2d 709 (1995).

Remedial treatment.

- Medical treatment which is deemed, for statute of limitation purposes, to be remedial treatment furnished by the employer must be commenced within the original period of limitation, i.e., within one year of the job-related injury or of previous employer-furnished treatment. Poissonnier v. Better Bus. Bureau of W. Georgia-East Ala., Inc., 180 Ga. App. 588, 349 S.E.2d 813 (1986).

Medical treatment which is deemed, for statute of limitation purposes, to be remedial treatment furnished by the employer must be commenced within the original period of limitation, i.e., within one year of the job-related injury or of previous employer-furnished treatment. Wier v. Skyline Messenger Serv., 203 Ga. App. 673, 417 S.E.2d 693, cert. denied, 203 Ga. App. 908, 417 S.E.2d 693 (1992).

Since the claimant continued the exercises prescribed by claimant's doctor but there was no medical oversight of the exercise program and claimant failed to keep claimant's six-week check up appointment, this did not constitute "remedial treatment" so as to extend the time for filing a claim. Wier v. Skyline Messenger Serv., 203 Ga. App. 673, 417 S.E.2d 693, cert. denied, 203 Ga. App. 908, 417 S.E.2d 693 (1992).

Date of the last remedial treatment is the point from which the timeliness of a claim is measured; thus, a claim that was not filed within one year of the last remedial treatment furnished by the employer was barred. Queen Carpet, Inc. v. Moynihan, 221 Ga. App. 797, 472 S.E.2d 489 (1996).

Claim for change in condition.

- When claimant had received weekly income benefits for the period of claimant's disability, a claim filed by claimant for the same injury which had caused claimant's disability was a claim for a change in condition, and not an initial claim, and the claim was therefore governed by the two-year limitations period of O.C.G.A. § 34-9-104(b). Clarke v. Samson Mfg. Co., 177 Ga. App. 149, 338 S.E.2d 738 (1985).

Employee's status, i.e., the employee's legal condition vis-a-vis the employee's employer, was first established when the employer began paying benefits voluntarily and last established when the last benefit payment was made in 2002; therefore, the employee's application for penalties for late benefits payments under O.C.G.A. § 34-9-221 made in 2010, eight years later, was governed by the change in condition statute of limitations, O.C.G.A. § 34-9-104(b), rather than the general statute of limitations, O.C.G.A. § 34-9-82. Metro. Atlanta Rapid Transit Auth. v. Reid, 295 Ga. 863, 763 S.E.2d 695 (2014).

Inability to fix date of accident.

- Right of claimant to compensation is not necessarily barred because claimant cannot definitely fix date of the accident resulting in disability, either because claimant cannot remember the precise time when the accident occurred or because the accident was of such a nature that there is difficulty in ascertaining with complete accuracy when it happened. Skinner Poultry Co. v. Mapp, 98 Ga. App. 772, 106 S.E.2d 825 (1958).

Application to review of award.

- Provisions of Ga. L. 1920, p. 167, § 25 to the effect that the right to compensation should be forever barred unless a claim be filed with the commission within one year after the accident have no application when the employee is seeking a review of an award of settlement. U.S. Cas. Co. v. Smith, 34 Ga. App. 363, 129 S.E. 880 (1925), aff'd, 162 Ga. 130, 133 S.E. 851 (1926).

Employer was not estopped to raise O.C.G.A. § 34-9-82 as a defense due to the fact that the claimant received "medical and rehabilitation benefits" prior to the expiration of the limitation period. Owens-Illinois, Inc. v. Childers, 160 Ga. App. 566, 288 S.E.2d 11 (1981).

Claims held properly barred.

- See White v. U.S. Fid. & Guar. Co., 41 Ga. App. 514, 153 S.E. 574 (1930); Williams v. Campbell Constr. Co., 63 Ga. App. 381, 11 S.E.2d 233 (1940); Kell v. Bridges, 80 Ga. App. 55, 55 S.E.2d 309 (1949); Anderson v. Lockheed Aircraft Corp., 98 Ga. App. 814, 107 S.E.2d 295 (1959).

Claimant's assertions that workers' compensation claims arose out of a single occurrence or that the claimant had been mistaken as to date of injury were unsupported by the record. Given that the claimant asserted injuries on multiple dates, there was some evidence to support the administrative law judge's conclusion that the claimant first asserted a claim for the accident outside of O.C.G.A. § 34-9-82(a)'s one-year limitations period and that the claim was thus barred. McLendon v. Advertising That Works, 292 Ga. App. 677, 665 S.E.2d 370 (2008).

In the claimant's tort claims against the employer, summary judgment was properly granted to the three insurance companies that covered the employer's automobiles because the claimant had one year after the claimant's injury to file a claim for workers' compensation benefits with the State Board of Workers' Compensation, but the claimant failed to do so; despite the employer's failure to procure workers' compensation coverage, relief under the Workers' Compensation Act, O.C.G.A. § 34-9-1 et seq., was the claimant's only available remedy; and, contrary to the claimant's contention, an injured claimant would not be unfairly punished because the employer (or the employer's agent) who failed to obtain insurance would remain liable for the payment of benefits awarded by the Board. Saxon v. Starr Indemnity & Liability Company, 339 Ga. App. 495, 793 S.E.2d 659 (2016).

2. Date of Injury

Date of accident is the date on which disability manifests itself. Pacific Employers Ins. Co. v. Ivey, 118 Ga. App. 299, 163 S.E.2d 435 (1968).

When an employee filed a claim with the board approximately 11 months after the employee's last work day, on which date the employee was for the third time hospitalized for treatment of the employee's condition, the cut-off date set by the board for medical expenses associated with the condition which gave rise to the claim was reasonable. Harden v. Southeastern Meat Co., 196 Ga. App. 22, 395 S.E.2d 273 (1990).

Aggravation by continued work of a previous injury is a new accident. Blackwell v. Liberty Mut. Ins. Co., 230 Ga. 174, 196 S.E.2d 129 (1973); Twin City Fire Ins. Co. v. Lowe, 140 Ga. App. 349, 231 S.E.2d 125 (1976); Georgia Cas. & Sur. Co. v. Moore, 142 Ga. App. 191, 235 S.E.2d 591 (1977); Zurich Ins. Co. v. Cheshire, 178 Ga. App. 539, 343 S.E.2d 753 (1986).

Period runs when forced to cease work.

- If claimant after becoming injured at work continued to work until claimant was forced to cease work because of aggravation of the original injury, the statute of limitations runs from the date the employee was forced to cease work if the aggravation of the original injury was attributable to the continued employment. Noles v. Mills, 114 Ga. App. 130, 150 S.E.2d 305 (1966); Blackwell v. Liberty Mut. Ins. Co., 230 Ga. 174, 196 S.E.2d 129 (1973); Commercial Union Cos. v. Byrd, 133 Ga. App. 878, 212 S.E.2d 446 (1975); Jarrell v. American Home Assurance, 149 Ga. App. 761, 256 S.E.2d 123 (1979); Home Ins. Co. v. McEachin, 151 Ga. App. 567, 260 S.E.2d 560 (1979).

Regardless of the merits of an employee's fictional new injury claim based on the employee's discharge from employment in 2009, because no weekly benefits were paid to the employee in connection with this alleged injury, the employee was required to file the employee's claim within one year of the alleged injury or within one year of remedial treatment being provided pursuant to O.C.G.A. § 34-9-82(a); the employee's claim filed over two years late was barred. Roseburg Forest Prods. Co. v. Barnes, 299 Ga. 167, 787 S.E.2d 232 (2016).

Extension of period because of aggravation of injury.

- Aggravation of preexisting injury, followed by disability requiring employee to cease work, will extend the time for filing a claim for 12 months following the onset of disability. Pacific Employers Ins. Co. v. Ivey, 118 Ga. App. 299, 163 S.E.2d 435 (1968).

It is not necessary that there be a specific job-connected incident which aggravates the previous injury when employment contributes to the aggravation of a preexisting injury. Home Ins. Co. v. McEachin, 151 Ga. App. 567, 260 S.E.2d 560 (1979).

Claim not barred.

- Claim based on a subsequent disabling aggravation of a previously incurred on-the-job injury was not barred by this section because more than one year elapsed from the initial injury. Aetna Cas. & Sur. Co. v. Cagle, 106 Ga. App. 440, 126 S.E.2d 907 (1962).

Gradual injury.

- If a claim is based on a gradual injury, the date of the accident may be found to be the date the employee is required to cease work when the evidence authorizes it. Carey v. Travelers Ins. Co., 133 Ga. App. 657, 212 S.E.2d 13 (1975); Mason, Inc. v. Gregory, 161 Ga. App. 125, 291 S.E.2d 30 (1982).

3. Waiver

Failure to file a claim within the period of limitations may be waived. St. Paul Mercury Indem. Co. v. Oakley, 73 Ga. App. 97, 35 S.E.2d 562 (1945); Maryland Cas. Co. v. Smith, 122 Ga. App. 262, 176 S.E.2d 666 (1970).

Participation in hearing is waiver.

- Principle of waiver may be applied to the portion of this section which required the filing of a claim against the employer when the employer appeared and participated in the hearing as fully as if the claim had in fact been filed. Maryland Cas. Co. v. Smith, 122 Ga. App. 262, 176 S.E.2d 666 (1970).

Failure to object is waiver.

- Failure to raise the question of the time of the filing of a claim at the hearing of the case is a waiver of the time of such filing. St. Paul Mercury Indem. Co. v. Oakley, 73 Ga. App. 97, 35 S.E.2d 562 (1945).

When no question of statute of limitations as to time of, or method of service of, notice of claim for compensation within one year of accident is raised at hearing by board, both parties being represented by counsel, the same is waived and cannot be raised for the first time in the appellate court. Sanford v. University of Ga. Bd. of Regents, 131 Ga. App. 858, 207 S.E.2d 255 (1974).

Payment for medical services may be waiver.

- When an employer or the employer's insurance carrier has furnished or paid for medical and hospital services to an injured employee, it is generally held that this constitutes a payment of compensation, or a waiver which suspends the running of the time for filing a claim for compensation. Chevrolet Div., GMC v. Dempsey, 212 Ga. 560, 93 S.E.2d 703 (1956).

Representations and assurances of payment constituting waiver.

- Representations of payment made by the carrier's agent which the claimant relied on are sufficient to act as a waiver of the carrier's rights under the one-year limitation period. Cotton States Ins. Co. v. Studdard, 126 Ga. App. 217, 190 S.E.2d 549 (1972).

Representations and assurances that an injured employee will be taken care of by the company or its insurance carrier create an estoppel barring the company or carrier from asserting the one-year statute of limitations for filing a claim under this section. Brown Transp. Co. v. James, 243 Ga. 701, 257 S.E.2d 242 (1979).

Benefits paid under federal law.

- Employee's receipt of benefits under the Longshoremen's & Harborworker's Compensation Act, 33 U.S.C. § 901 et seq., served to toll the running of the state statute of limitation. Atlantic Container Servs. v. Godbee, 218 Ga. App. 594, 462 S.E.2d 465 (1995).

Conduct of a defendant and its insurance carrier may be such as to estop them from presenting the statutory limitation as a defense in bar of the claim for compensation, if the effect of such conduct was to mislead or deceive claimant, whether intentional or not, and induce claimant to withhold or postpone filing a claim petition until more than a year elapsed from the occurrence of the accident. Brown Transp. Corp. v. James, 243 Ga. 701, 257 S.E.2d 242 (1979).

Tolling of Limitation

1. Fraud

Nature of fraud.

- Fraud which will relieve the bar of the statute of limitations must be such as debars or deters the plaintiff from the plaintiff's action. Fidelity & Cas. Co. v. Bishop, 108 Ga. App. 422, 133 S.E.2d 51 (1963); U.S. Cas. Co. v. Owens, 109 Ga. App. 834, 137 S.E.2d 543 (1964), overruled on other grounds, Brown Transp. Co. v. James, 243 Ga. 701, 257 S.E.2d 242 (1979); Mallory v. American Cas. Co., 114 Ga. App. 641, 152 S.E.2d 592 (1966); Perkins v. Aetna Cas. & Sur. Co., 147 Ga. App. 662, 249 S.E.2d 661 (1978), appeal dismissed, 243 Ga. 701, 256 S.E.2d 792 (1979).

Fraud which will toll the statute of limitations in this section was an intentional act of concealment or misrepresentation which would operate as a deterrent to claimant to file a claim with the board, or an affirmative act, or concealment, or misrepresentation preventing an inquiry. Perkins v. Aetna Cas. & Sur. Co., 147 Ga. App. 662, 249 S.E.2d 661 (1978), appeal dismissed, 243 Ga. 701, 256 S.E.2d 792 (1979).

Affirmative act is required.

- Affirmative act or concealment or misrepresentation preventing an inquiry must exist to prevent the statute from so operating. Welchel v. American Mut. Liab. Ins. Co., 54 Ga. App. 511, 188 S.E. 357 (1936), overruled on other grounds, Brown Transp. Co. v. James, 243 Ga. 701, 257 S.E.2d 242 (1979).

Affirmative act must be intentional.

- No fraud is practiced absent an intentional act of concealment or misrepresentation which operates as a deterrent to claimant to file a claim with the board. Day v. Bituminous Cas. Corp., 141 Ga. App. 555, 234 S.E.2d 142 (1977), overruled on other grounds, Brown Transp. Corp. v. James, 243 Ga. 701, 257 S.E.2d 242 (1979).

Question of fact.

- Determination of whether the conduct or representations of the employer were such as to prevent the filing of a timely claim by the employee with the board, and thus amount to the practice of a fraud upon the employee, is a factual one. Indemnity Ins. Co. v. O'Neal, 104 Ga. App. 305, 121 S.E.2d 689 (1961), overruled on other grounds, Brown Transp. Co. v. James, 243 Ga. 701, 257 S.E.2d 242 (1979).

That a plaintiff fails to sue on account of a mere uncertain and indefinite understanding, based on no consideration, would not be such fraud as would relieve the bar of the statute. Fidelity & Cas. Co. v. Bishop, 108 Ga. App. 422, 133 S.E.2d 51 (1963); United States Cas. Co. v. Owens, 109 Ga. App. 834, 137 S.E.2d 543 (1964); Mallory v. American Cas. Co., 114 Ga. App. 641, 152 S.E.2d 592 (1966).

Fact that the employer fails to file a report of the accident as required by the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) does not constitute such a fraud on the employee as will toll the statute. Welchel v. American Mut. Liab. Ins. Co., 54 Ga. App. 511, 188 S.E. 357 (1936), overruled on other grounds, Brown Transp. Co. v. James, 243 Ga. 701, 257 S.E.2d 242 (1979).

2. Persons Under Disability

Effect of this section, that the right to compensation was dependent upon a claim being filed within one year from the date of the accident, was not to abrogate or repeal the general provisions of the Code which fix different periods of limitations for causes of action of varying natures, and which also provide that such statutes shall not run during the period of disability of a minor or other person laboring under disability to sue. Porter v. Liberty Mut. Ins. Co., 46 Ga. App. 86, 166 S.E. 675 (1932).

Mental incapacity.

- If there be such a degree of unsoundness of mind or imbecility as to incapacitate one from managing the ordinary business of life, it will authorize a finding that the claimant is "mentally incompetent", and the statute of limitations is tolled during the period of time the claimant is "mentally incompetent" and until the disability has been removed. Royal Indem. Co. v. Agnew, 66 Ga. App. 377, 18 S.E.2d 57 (1941); Lowe v. Pue, 150 Ga. App. 234, 257 S.E.2d 209 (1979).

Minors.

- Since there is no exception in the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) in favor of infants, except those under 18 years of age or those laboring under some other disability, it must be held that they stand upon the same footing as adults with reference to the period of limitation fixed by the statute. Porter v. Liberty Mut. Ins. Co., 46 Ga. App. 86, 166 S.E. 675 (1932).

When it is conclusive, under both the law and the evidence that the claimant was a minor dependent at the time of the accident which resulted in the death of claimant's spouse, and, having no guardian or trustee, the statute did not begin to run against claimant until claimant reached the age of majority. Durham v. Durham, 59 Ga. App. 430, 1 S.E.2d 207 (1939).

3. Actions Not Tolling Statute

Payments made without an agreement or approved award do not toll the running of the one-year statutory period within which a claim must be filed in this state. Sprayberry v. Commercial Union Ins. Co., 140 Ga. App. 758, 232 S.E.2d 111 (1976).

Procedure for Filing Claim

1. Jurisdiction of Board

Limitation imposed by this section operated as a limitation of the liability itself as created, and not of the remedy alone. Porter v. Liberty Mut. Ins. Co., 46 Ga. App. 86, 166 S.E. 675 (1932); New York Indem. Co. v. Allen, 47 Ga. App. 657, 171 S.E. 191 (1933); Attaway v. First Nat'l Bank, 49 Ga. App. 270, 175 S.E. 258 (1934), overruled on other grounds sub nom, Sprayberry v. Commercial Union Ins. Co., 140 Ga. App. 758, 232 S.E.2d 111 (1976).

Essential element of a claim under the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) is the filing thereof with the board within 12 months from the date of the accident. Bussey v. Bishop, 169 Ga. 251, 150 S.E. 78 (1929), overruled on other grounds, Canton Textile Mills, Inc. v. Lathem, 253 Ga. 102, 317 S.E.2d 189 (1984); Porter v. Liberty Mut. Ins. Co., 46 Ga. App. 86, 166 S.E. 675 (1932); Southern Cotton Oil Co. v. McLain, 49 Ga. App. 177, 174 S.E. 726 (1934); Patterson v. Employer's Mut. Liab. Ins. Co., 99 Ga. App. 325, 108 S.E.2d 146 (1959).

Workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) brings in a new and independent, but conditional, right to compensation, the condition being that a claim therefor must be filed within a year after the accident. Porter v. Liberty Mut. Ins. Co., 46 Ga. App. 86, 166 S.E. 675 (1932).

Filing of the claim for compensation within the time prescribed is jurisdictional. Porter v. Liberty Mut. Ins. Co., 46 Ga. App. 86, 166 S.E. 675 (1932); New York Indem. Co. v. Allen, 47 Ga. App. 657, 171 S.E. 191 (1933); Southern Cotton Oil Co. v. McLain, 49 Ga. App. 177, 174 S.E. 726 (1934); Attaway v. First Nat'l Bank, 49 Ga. App. 270, 175 S.E. 258 (1934), overruled on other grounds sub nom. Sprayberry v. Commercial Union Ins. Co., 140 Ga. App. 758, 232 S.E.2d 111 (1976); Welchel v. American Mut. Liab. Ins. Co., 54 Ga. App. 511, 188 S.E. 357 (1936); Williams v. Campbell Constr. Co., 63 Ga. App. 381, 11 S.E.2d 233 (1940); Zachery v. Royal Indem. Co., 80 Ga. App. 659, 56 S.E.2d 812 (1949); Employers Mut. Liab. Ins. Co. v. Anderson, 96 Ga. App. 509, 100 S.E.2d 611 (1957); State Hwy. Dep't v. Cooper, 104 Ga. App. 130, 121 S.E.2d 258 (1961); Indemnity Ins. Co. v. O'Neal, 104 Ga. App. 305, 121 S.E.2d 689 (1961); Fidelity & Cas. Co. v. Bishop, 108 Ga. App. 422, 133 S.E.2d 51 (1963); U.S. Cas. Co. v. Owens, 109 Ga. App. 834, 137 S.E.2d 543 (1964); Mallory v. American Cas. Co., 114 Ga. App. 641, 152 S.E.2d 592 (1966); Hartford Accident & Indem. Co. v. Snyder, 126 Ga. App. 31, 189 S.E.2d 919 (1972); Travelers Ins. Co. v. Hall, 128 Ga. App. 71, 195 S.E.2d 679 (1973); Perkins v. Aetna Cas. & Sur. Co., 147 Ga. App. 662, 249 S.E.2d 661 (1978), appeal dismissed, 243 Ga. 701, 256 S.E.2d 792 (1979).

Unless jurisdictional requirements are complied with, the board is without authority to grant the injured employee compensation. Porter v. Liberty Mut. Ins. Co., 46 Ga. App. 86, 166 S.E. 675 (1932); New York Indem. Co. v. Allen, 47 Ga. App. 657, 171 S.E. 191 (1933); Attaway v. First Nat'l Bank, 49 Ga. App. 270, 175 S.E. 258 (1934), overruled on other grounds sub nom. Sprayberry v. Commercial Union Ins. Co., 140 Ga. App. 758, 232 S.E.2d 111 (1976); Welchel v. American Mut. Liab. Ins. Co., 54 Ga. App. 511, 188 S.E. 357 (1936); Zachery v. Royal Indem. Co., 80 Ga. App. 659, 56 S.E.2d 812 (1949); Employers Mut. Liab. Ins. Co. v. Anderson, 96 Ga. App. 509, 100 S.E.2d 611 (1957); Chevrolet Parts Div., GMC v. Harrell, 100 Ga. App. 280, 111 S.E.2d 104 (1959); State Hwy. Dep't v. Cooper, 104 Ga. App. 130, 121 S.E.2d 258 (1961); Hartford Accident & Indem. Co. v. Snyder, 126 Ga. App. 31, 189 S.E.2d 919 (1972); Travelers Ins. Co. v. Hall, 128 Ga. App. 71, 195 S.E.2d 679 (1973).

If the employee, personally or by counsel, files a claim within this limitation, the jurisdiction of the board attaches as to this claim. State Hwy. Dep't v. Cooper, 104 Ga. App. 130, 121 S.E.2d 258 (1961).

If the employer requested a hearing under former Code 1933, § 114-706 (see now O.C.G.A. § 34-9-100) and the employee has binding "notice" of this fact and affirmatively responded so as to convert the application for hearing into a claim within the one-year limitation, the board thereby acquired jurisdiction of the claim under former Code 1933, § 114-305 (see now O.C.G.A. § 34-9-82). State Hwy. Dep't v. Cooper, 104 Ga. App. 130, 121 S.E.2d 258 (1961).

If a claim filed was withdrawn by the party filing it before a hearing is held, it is as though no claim had been filed, and the board would be without jurisdiction to entertain a second claim filed after the expiration of the statutory limitation of this section. Ogden v. Clark Thread Co., 93 Ga. App. 227, 91 S.E.2d 191 (1956); Gordy v. Callaway Mills Co., 111 Ga. App. 798, 143 S.E.2d 401 (1965).

Party loses standing after failure to comply.

- When a plaintiff failed to comply with the one-year time limit on claims provided in Ga. L. 1925, p. 282, § 2, the plaintiff had no standing to challenge the constitutionality of the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) because the plaintiff was thereby not affected by its provisions. Threatt v. American Mut. Liab. Ins. Co., 173 Ga. 350, 160 S.E. 379 (1931), cert. denied, 284 U.S. 670, 52 S. Ct. 127, 76 L. Ed. 567 (1932).

Jurisdiction ends upon compliance with award.

- Jurisdiction of the department (now board) of a case attached with the filing of the claim as required by this section, and was lost when there is a full compliance with the award, unless there is a provision in the act or in the award conferring jurisdiction of the case. London Guarantee & Accident Co. v. Boynton, 54 Ga. App. 419, 188 S.E. 265 (1936).

2. Claimant

Good faith claim of entitlement.

- This section referred to a claim by one who in good faith contended that one was entitled to the immediate and unconditional award of compensation. Bituminous Cas. Corp. v. Johnson, 79 Ga. App. 105, 53 S.E.2d 119 (1949).

Duty to pass on claimant's competency.

- It is not only within the power, but is the duty of the board to pass on the competency of a claimant to file a claim. McIntyre v. Employers Mut. Liab. Ins. Co., 122 Ga. App. 424, 177 S.E.2d 191 (1970).

It is the claimant's duty to file a claim against one whom claimant contends is claimant's employer. It is not the duty of the board to make a special investigation, before a hearing, to ascertain who the proper parties are. The burden of showing the employment is on the claimant. McCormick v. Kitchens, 59 Ga. App. 376, 1 S.E.2d 57 (1939).

Claimant under the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) is presumed to know the law which required the claimant to file a claim with the board within one year after the accident. New York Indem. Co. v. Allen, 47 Ga. App. 657, 171 S.E. 191 (1933).

Employee must affirmatively take some action within the one-year limitation, which the employee may do either by filing a claim, or by responding to the employer's request for a hearing and thus convert the hearing into a claim. State Hwy. Dep't v. Cooper, 104 Ga. App. 130, 121 S.E.2d 258 (1961); U.S. Cas. Co. v. Owens, 109 Ga. App. 834, 137 S.E.2d 543 (1964).

Hearing requested by the employer, standing alone, is not a claim until the employee affirmatively responds to it by becoming a party within the one-year limitation. State Hwy. Dep't v. Cooper, 104 Ga. App. 130, 121 S.E.2d 258 (1961).

Applications under § 34-9-100. - Any application by the employer for a hearing under former Code 1933, § 114-706 (see now O.C.G.A. § 34-9-100) to have determined the amount of compensation, if any, to which the employee may be entitled, in no way relieved the employee from taking some affirmative action before the board within the one-year limitation. State Hwy. Dep't v. Cooper, 104 Ga. App. 130, 121 S.E.2d 258 (1961).

3. Form of Claim

Claims to be filed against a party.

- It was evidently the legislative intention that claims should be filed against some party, and that simply to set out that one has been injured and that somebody owes compensation is not sufficient. McCormick v. Kitchens, 59 Ga. App. 376, 1 S.E.2d 57 (1939).

Workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) does not require any technical or formal filing of a claim. Bituminous Cas. Corp. v. Mallory, 63 Ga. App. 714, 12 S.E.2d 112 (1940); Roddy v. Hartford Accident & Indem. Co., 65 Ga. App. 632, 16 S.E.2d 81 (1941); Ayers v. Aetna Cas. & Sur. Co., 71 Ga. App. 327, 30 S.E.2d 811 (1944); State Hwy. Dep't v. Cooper, 104 Ga. App. 130, 121 S.E.2d 258 (1961); Maryland Cas. Co. v. Smith, 122 Ga. App. 262, 176 S.E.2d 666 (1970).

Letter to board may be sufficient.

- The mere writing of a letter to the board by a claimant setting forth claimant's employment, the name of claimant's employer, and the cause of claimant's injuries, may amount to a filing of claimant's claim. Bituminous Cas. Corp. v. Mallory, 63 Ga. App. 714, 12 S.E.2d 112 (1940); Ayers v. Aetna Cas. & Sur. Co., 71 Ga. App. 327, 30 S.E.2d 811 (1944); State Hwy. Dep't v. Cooper, 104 Ga. App. 130, 121 S.E.2d 258 (1961).

Letter must ask for relief.

- When the letter did not ask for relief or a hearing or action of any nature beyond the giving of information, it did not amount to the filing of a claim under this section. State Hwy. Dep't v. Cooper, 104 Ga. App. 130, 121 S.E.2d 258 (1961).

Submission of a compensation agreement to the board is equivalent to the filing of a formal claim, as a matter of law, on the part of the employee, and the board in returning an agreement to the insurer, for purposes of correction and resubmission, does not judicially determine the rights of the claimant by an approval or rejection of the agreement but retains jurisdiction of the matter waiting further action by the parties. Hartford Accident & Indem. Co. v. Dutton, 110 Ga. App. 398, 138 S.E.2d 733 (1964).

Effect of requesting delay.

- Claim for compensation must ordinarily be filed within one year in order to comply with this section. When the claimant personally filed an "application for hearing" within the statutory period and notice of pendency of the claim is given to the employer, the fact that claimant placed on claimant's claim the notation, "do not assign my case for a hearing until specifically requested," will not amount to a failure to file in compliance with this section, even though a hearing was not requested or held within the statutory period. Complete Auto Transit, Inc. v. Reavis, 105 Ga. App. 364, 124 S.E.2d 491 (1962).

4. Delivery

Claim is filed with the board when it is actually delivered to the board or to some proper officer thereof and received by the officer to be kept on file. Chevrolet Parts Div., GMC v. Harrell, 100 Ga. App. 280, 111 S.E.2d 104 (1959).

Delivery of a letter containing written notice of a claimant's claim for compensation to the United States mail for delivery to the board does not constitute the filing of such claim with the board. The claim cannot be considered as filed with the board until it is actually received by the board or by some proper officer thereof to be kept on file. Travelers Ins. Co. v. Hall, 128 Ga. App. 71, 195 S.E.2d 679 (1973).

When evidence was uncontradicted that attorney for claimant mailed letter, ample as the basis for a claim, properly addressed and stamped, to the board within one year after the claimant was injured, and no one testified that the letter had not been received by the board, the evidence authorized an award of the board in claimant's favor. Ayers v. Aetna Cas. & Sur. Co., 71 Ga. App. 327, 30 S.E.2d 811 (1944).

OPINIONS OF THE ATTORNEY GENERAL

Filing of workers' compensation claims can only be done by the claimant or the claimant's legal representative. 1960-61 Op. Att'y Gen. p. 590.

Period of time a person has been retired from or has not been employed by a school system would not be of any particular significance as to the former employer's workers' compensation coverage; this is not to say that there are not notice of accident filing requirements and filing of claim requirements which must be complied with in order for an employee or former employee to make a proper claim for compensation. 1977 Op. Att'y Gen. No. 77-38.

RESEARCH REFERENCES

Am. Jur. 2d.

- 82 Am. Jur. 2d, Workers' Compensation, § 527 et seq.

C.J.S.

- 100 C.J.S., Workers' Compensation, § 939 et seq.

ALR.

- Applicability of general statute of limitations to action, or proceeding under workmen's compensation acts, 16 A.L.R. 462; 40 A.L.R. 495.

Limitation of time for filing claim under workmen's compensation as jurisdictional, 78 A.L.R. 1294.

Construction and application of provisions of workmen's compensation acts regarding allowance for aggravation of injury from same accident after time limited for filing claim, 105 A.L.R. 971.

Workmen's compensation: date of accident or date when injury becomes manifest as time from which period for filing claim commences to run, 108 A.L.R. 316.

Computation of period for filing death claim under workmen's compensation statutes, 119 A.L.R. 1158.

Payments, furnishing medical or hospital services, or burial, by employer or his insurer, to employee after injury, as affecting time for filing claim under Workmen's Compensation Act, 144 A.L.R. 606.

Effect of fraud to toll the period for bringing action prescribed in statute creating the right of action, 15 A.L.R.2d 500.

Validity, and applicability to causes of action not already barred, of a statute enlarging limitation period, 79 A.L.R.2d 1080.

Statute of limitations: effect of delay in appointing administrator or other representative on cause of action accruing at or after death of person in whose favor it would have accrued, 28 A.L.R.3d 1141.

Effect of injured employee's proceeding for workmen's compensation benefits on running of statute of limitations governing action for personal injury arising from same incident, 71 A.L.R.3d 849.

Fraud as extending statutory limitations period for contesting will or its probate, 48 A.L.R.4th 1094.

When limitations period begins to run as to claim for disability benefits for contracting of disease under Workers' Compensation or Occupational Diseases Act, 86 A.L.R.5th 295.

When time period commences as to claim under workers' compensation or occupational diseases act for death of worker due to contraction of disease, 100 A.L.R.5th 567.

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