Opinion
39021.
DECIDED SEPTEMBER 19, 1961. REHEARING DENIED OCTOBER 19, 1961.
Workmen's compensation. Fulton Superior Court. Before Judge Alverson.
Charles E. Wood, for plaintiff in error.
Smith, Field, Ringel, Martin Carr, Richard D. Carr, H. A. Stephens, Jr., W. Dent Acree, contra.
Where evidence is offered tending to show an exception to the requirement of notice of an accident or a reasonable excuse for failure to give notice under Code § 114-303, the Board of Workmen's Compensation is authorized to find, but is not required to find, that the failure to give notice is excused. The failure of the board to make an affirmative finding as to an exception or excuse is tantamount to a finding that none was proven. In absence of the board's finding an authorized exception or excuse, the denial of compensation for failure to give notice is warranted.
DECIDED SEPTEMBER 19, 1961 — REHEARING DENIED OCTOBER 19, 1961.
The claimant in this case filed a claim for workmen's compensation, alleging that he sustained a back injury on November 28, 1958, while in the employ of the defendant. After a hearing the deputy director found that the claimant did not give the notice required by the statute, and denied compensation. The State Board of Workmen's Compensation affirmed this finding. The plaintiff appealed to the Superior Court of Fulton County, which affirmed the award of the State Board of Workmen's Compensation. The plaintiff excepted to the judgment of the Superior Court of Fulton County, assigning the statutory grounds of error as set forth in Code § 114-710, omitting ground 2 therein and adding the following: "That the hearing before the State Board of Workmen's Compensation was continued on the legally erroneous theory that the claimant could not recover unless notice of the accident was given to the employer within 30 days, even if the claimant's first knowledge that he might have been injured was after 30 days."
Code § 114-303, after providing the requirements for the employee's giving notice of the accident to the employer, agent, representative, or foreman, or the immediate supervisor, goes on to provide: "No compensation will be payable unless such notice, either oral or written, is given within 30 days after the occurrence of an accident . . . unless it can be shown that the employee had been prevented from doing so by reason of physical or mental incapacity, or by fraud or deceit, or that the employer, his agent, representative, or foreman, or the immediate superior of the injured employee, had knowledge of the accident, or unless a reasonable excuse is made to the satisfaction of the State Board of Workmen's Compensation for not giving such notice, and it is reasonably proved to the satisfaction of the Board that the employer had not been prejudiced thereby."
The finding of the board that the employee did not give the required notice within 30 days is supported by competent evidence. It is elementary that the board's finding of fact must be accepted by the appellate courts if there is any competent evidence to support the finding. Fidelity Cas. Co. v. King, 104 Ga. App. 261 ( 121 S.E.2d 284).
The claimant makes the ingenious contention that the deputy director erred in making the findings of fact because she had concluded that it was not within her discretion to award compensation to the claimant unless notice was given the employer within 30 days of an accident. While Code § 114-303 does provide for the finding of exceptions to the requirement that notice be given within 30 days after the accident in order for compensation to be payable, these findings are exclusively for the board to make. Where evidence is offered tending to show one or more of these exceptions or a reasonable excuse, the board is authorized by the statute to find the failure to give notice is excused. The failure of the board to make an affirmative finding that an exception or a reasonable excuse is present in a case is tantamount to a finding that no reasonable excuse or exception was proven to the satisfaction of the board.
The reasonableness of the excuse offered for failure to give the notice is peculiarly a matter for determination by the board. Federated Mutual c. Ins. Co. v. Elliott, 88 Ga. App. 266 ( 76 S.E.2d 568); Hardware Mutual c. Co. v. Sprayberry, 69 Ga. App. 196 ( 25 S.E.2d 74). Where there is evidence from which the board might have found prevention from giving the notice by reason of physical or mental incapacity, but the evidence does not demand such a finding, this court will not disturb the order of the State Board of Workmen's Compensation denying compensation. James v. Fite, 38 Ga. App. 759 ( 145 S.E. 536).
Judgment affirmed. Felton, C. J., and Hall, J., concur.