Opinion
38908.
DECIDED JUNE 30, 1961. REHEARING DENIED JULY 11, 1961.
Workmen's compensation. DeKalb Superior Court. Before Judge Guess.
Smith, Field, Ringel, Martin Carr, Charles L. Drew, for plaintiff in error.
Nick Long, Jr., contra.
The "knowledge of the accident," provided by Code § 114-303 as an exception to the requirement that the claimant give the employer notice of the accident, means the employer's knowledge of an accident which produces an injury, and where the claimant felt no immediate pain, continued working, did not see a doctor for about a month and a half after the accident and told him that she had sustained no accident, and made no mention of the accident when finally telling her supervisor that she was going to the hospital, the fact that the employer's senior assistant witnessed the accident was not such actual notice of an injury arising out of and in the course of the claimant's employment as would relieve the claimant of the necessity of giving the notice required by the statute.
DECIDED JUNE 30, 1961 — REHEARING DENIED JULY 11, 1961.
Claimant tripped on a hand truck left in an aisle and fell over onto some boxes at her place of employment with the defendant company, November 18, 1959. She was helped up by defendant's senior assistant, who was present at the time of her fall. Claimant allegedly felt no particular pain at that time, and continued working for about ten days, whereupon pains in her back and leg commenced. She treated herself for these pains until January 6, 1960, at which time she went to a doctor for treatment. Her first notice to her employer of her injury was given on January 8, 1960, when she told her supervisor that she was "going to have to go into the hospital for traction" because she had "been having trouble with [her] back." She did not think at the time of the accident that she had been injured, and she told the doctor who treated her that she had had no injury. The full State Workmen's Compensation Board affirmed the finding of the deputy director that the claimant was not barred from compensation for not having given her employer notice as provided in Code § 114-303, since the employer had actual notice, in that the senior assistant was present when claimant's accident occurred. This award was affirmed by the superior court, and it is to this judgment that the defendant excepts.
Code § 114-303 provides that "no compensation will be payable unless . . . notice, either oral or written, is given [to employer] within thirty days after the occurrence of an accident . . . unless it can be shown that . . . the employer, his agent, representative, or foreman, or the immediate superior of the injured employee, had knowledge of the accident." The issue in this case is whether the defendant employer had such actual notice of the accident as required by the statute to relieve the claimant of the necessity of giving defendant notice of the accident.
Whether or not the failure to give such notice comes within one of the exceptions set forth by the statute, so as to prevent such failure from operating as a bar to an award of compensation, is a question of fact, to be determined by the board, and its finding upon such question of fact, if supported by the evidence, is, in the absence of fraud, conclusive. Maryland Cas. Co. v. England, 160 Ga. 810, 812 ( 129 S.E. 75); Montgomery v. Maryland Cas. Co., 169 Ga. 746 ( 151 S.E. 363); Maryland Cas. Co. v. Sanders, 182 Ga. 594 ( 186 S.E. 693); American Mut. Liab. Ins. Co. v. Sisson, 198 Ga. 623, 625 ( 32 S.E.2d 295); Code § 114-710. "But where the award of the State Board of Workmen's Compensation is based upon an erroneous conclusion drawn from the facts and the law applicable thereto, it is proper for the judge of the superior court to reverse such award and enter such judgment in the case as is proper under the law and the facts as disclosed by the record in the case." Glens Falls Indem. Co. v. Clark, 75 Ga. App. 453, 458 ( 43 S.E.2d 752); Bituminous Cas. Corp. v. Elliott, 70 Ga. App. 325 ( 28 S.E.2d 392); Aetna Cas. c. Co. v. Honea, 71 Ga. App. 569 (4) ( 31 S.E.2d 421); Gay v. Aetna Cas. c. Co., 72 Ga. App. 122 ( 33 S.E.2d 109); Hall v. Kendall, 81 Ga. App. 592 (1) ( 59 S.E.2d 421).
"The purpose of this provision [for notice] is undoubtedly to prevent the belated filing of claims which might work a fraud or injustice upon the employer." Federated Mut. c. Ins. Co. v. Elliott, 88 Ga. App. 266, 268 ( 76 S.E.2d 568). As to how much notice is required, in Employers Mutual c. Ins. Co. v. Holloway, 98 Ga. App. 265, 267 ( 105 S.E.2d 370) it is stated that: "It means only that there must be something (as in the cited cases of Railway Express Agency v. Harper, 70 Ga. App. 795, 29 S.E.2d 434; Davison-Paxon Co. v. Ford, 88 Ga. App. 890, 78 S.E.2d 257, and Ideal Mutual Ins. Co. v. Ray, 92 Ga. App. 273, 88 S.E.2d 428) to put the employer on notice that there is at least a probability that the injury of which he is informed is connected with an accident arising out of and in the course of the employment."
Was the mere fact that the employer's agent saw the claimant fall sufficient to put the employer on notice that the claimant had sustained an injury in the course of her employment? The record shows that even the claimant herself did not think she was injured at the time of the fall, that she did not feel any pain until ten days later, that she did not even mention the injury to her employer for about a month and a half, and that she told the doctor who examined and treated her that she had sustained no injury. When she finally told her supervisor of her condition, she did not indicate that it had arisen out of her employment, but merely said she had had trouble with her back. It was held in Royal Indem. Co. v. Coulter, 213 Ga. 277, 279 ( 98 S.E.2d 899): "Obviously, the notice required is 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." (Italics ours.) This was reaffirmed by Fountain v. Ga. Marble Co., 213 Ga. 352 ( 99 S.E.2d 144). See also New Amsterdam Cas. Co. v. Kidd, 101 Ga. App. 910 ( 115 S.E.2d 427).
Since, as shown above, the notice must be of an injury by accident, defendant's knowledge solely of the claimant's accident, in the absence of any indication that the accident had produced an injury, is not sufficient notice that the claimant had sustained an injury arising out of and in the course of her employment. Had the claimant indicated some presence of pain at the time of the accident, or even within a reasonable time thereafter, or had she not failed to tell the doctor of her accident, or even if she had informed the same senior assistant who had witnessed her accident, instead of her supervisor, that she was going to the hospital, there might have been sufficient information to put the employer on notice that the claimant's condition was in some way connected with the accident, rather than a result of disease or an accident not arising out of and in the course of her employment. It would place an undue burden upon employers to require them to investigate every minor accident which occurs on their premises, especially those wherein there is no evidence of any injury, either at the time of the accident or for a period of time as long as a month and a half later. The burden of giving notice was placed by the statute on the claimant, and it is not removed under the exception in question without proof that the employer knew, or had reasonable opportunity injury to the claimant, arising out of and in the course of her employment. The claimant's claim for compensation is therefore barred by her failure to give the statutory notice.
The finding of the State Board of Workmen's Compensation that the employer had such actual notice of the claimant's accident as to relieve her of the necessity of giving her employer notice under the statute is based upon an erroneous conclusion drawn from the facts and the law applicable thereto, and the superior court erred in affirming the award of compensation.
Judgment reversed. Bell and Hall, JJ., concur.