Summary
In Crews v. General Motors Corp. 107 Ga. App. 592 (130 S.E.2d 925), "... the only evidence relating to the giving of notice by the employee to the employer of [the employee's] said heart attack simply disclosed that the claimant's wife, three days after the claimant had last worked for the defendant, informed the employer through its personnel supervisor that her husband was in the hospital suffering from a heart attack...
Summary of this case from Bryant v. J. C. Distributors, Inc.Opinion
40014.
DECIDED APRIL 9, 1963.
Workmen's compensation. Fulton Superior Court. Before Judge Tanksley.
J. Richmond Garland, M. T. Hartman, III, for plaintiff in error.
King Spalding, William H. Izlar, Jr., contra.
1. The finding of the State Board of Workmen's Compensation that the notice provision of Code § 114-303 had not been complied with by the claimant was authorized by the evidence.
2. The failure of the board to make an affirmative finding as to an exception to the requirement of notice of accident or a reasonable excuse for failure to give notice under Code § 114-303 was tantamount to a finding that none was proven.
DECIDED APRIL 9, 1963.
This is an appeal from the judgment of the Superior Court of Fulton County affirming the award of the State Board of Workmen's Compensation which denied the employee's claim for compensation. The claim was predicated upon the contention of the employee that he had suffered a heart attack on May 19, 1961, which arose out of and in the course of his employment with the defendant company. The deputy director found for the employee and on appeal to the full board the award of the deputy director was reversed, the full board finding that the employee had not given notice of the accident to the defendant employer as required by the provisions of Code § 114-303.
1. "Compliance with the 30-day notice provision of the Workmen's Compensation Act, Code § 114-303, is a necessary prerequisite to the payment of compensation." Complete Auto Transit v. Reavis, 105 Ga. App. 364 (1) ( 124 S.E.2d 491). "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." Code § 114-303. In order to comply with the notice provisions of the above Code section the employee or his representative must give "notice of an injury by accident arising out of and in the course of the employment, and mere notice that an employee is suffering an injury from an accident does not meet the requirement of the statute." Royal Indem. Co. v. Coulter, 213 Ga. 277, 279 ( 98 S.E.2d 899).
The record in this case discloses that the defendant employer did not have knowledge that the claimant had suffered a heart attack during actual working hours so as to put it on notice of any injury arising out of and in the course of employment and the only evidence relating to the giving of notice by the employee to the employer of said heart attack simply disclosed that the claimant's wife, three days after the claimant had last worked for the defendant, informed the employer through its personnel supervisor that her husband was in the hospital suffering from a heart attack. It is manifest that the giving of such information did not constitute notice of an accident arising out of and in the course of employment within the purview of the Coulter case, supra; and there being no other evidence in this regard, the finding of the full board that the notice provision of Code § 114-303 had not been complied with was fully authorized. New Amsterdam Cas. Co. v. Kidd, 101 Ga. App. 910 ( 115 S.E.2d 427); Consolidated Underwriters v. Smith, 106 Ga. App. 167 ( 126 S.E.2d 465).
2. The employee offered evidence in this case of his physical and mental incapacity after the sustaining of said heart attack in an attempt 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 but the full board made no finding as to this issue. Under the decision of this court in Anderson v. Houston Fire c. Ins. Co., 104 Ga. App. 680 ( 122 S.E.2d 589), 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, and where, as here, 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. Nichols, P. J., and Frankum, J., concur.