Opinion
40824.
DECIDED SEPTEMBER 8, 1964.
Workmen's compensation. Lowndes Superior Court. Before Judge Lilly.
Franklin, Barham, Coleman, Elliott Blackburn, Oris D. Blackburn, Jr., King Spalding, William H. Izlar, Jr., for plaintiff in error.
Tillman Brice, B. Lamar Tillman, contra.
The notice required by Code § 114-303 need only be that notice of an accidental injury occurring during the course of employment which will put the employer on notice to make an investigation if he sees fit to do so.
(a) Notice to an employee who receives reports of injuries for the employer and "If it is something showing, looks like it is bad or anything" reports such injuries to the plant manager or his assistant is notice to an "agent" or "representative" as is required by Code § 114-303.
DECIDED SEPTEMBER 8, 1964.
Mrs. Rudine Cofield filed a claim for workmen's compensation against Oberman Manufacturing Company to recover for an injury allegedly caused when she struck her foot against a thread buggy. Liberty Mutual Insurance Company is the insurer. The deputy director denied compensation because there was no substantial evidence that (1) the injury complained of arose out of and in the course of the claimant's employment, and (2) the accident and injury was not reported within the time required by Code § 114-303. The full board, on appeal amended the award by striking the first reason relied upon by the deputy director so that the effect of the award was to deny compensation solely for the reason that the accident was not timely reported. On appeal to the superior court the award of the full board was affirmed and it is to this judgment the claimant now excepts.
The award denying compensation is based solely on the ground that the deputy director, and later the full board, found that the notice required by Code § 114-303 had not been given to the employer; and the claimant, while also referring to other statutory grounds of appeal, relies upon the ground: "The facts found by the members do not support the order or decree." Code § 114-710 (3).
The findings of the deputy director, approved by the full board, were in part as follows: "I find from the testimony of Rudine Cofield . . . that she sustained an injury to her left foot when she `stove it under the thread buggy'; that after a few minutes she went to the office and `reported it' to Mrs. Hart, who was typing, and Mrs. Hart advised her to bathe it in alcohol . . . I find from the testimony of Edith Hart that she does personnel work in the office for defendant and was so employed in December, 1961; that she does not remember claimant telling her she hurt her foot in December, 1961. . ." The deputy director then found that compliance with Code § 114-303 is a necessary prerequisite to the payment of compensation, and unless a reasonable excuse is made to appear to the satisfaction of the board no compensation can be paid, and: "In order to comply with the notice provision of the Code § 114-303, the employee, or his representative, must give notice of an injury by accident arising out of and in the course of employment, which is not shown here, in mere notice by [sic] employer that an employee is suffering an injury from an accident does not meet the requirements of the statute." In support of the last quoted finding the deputy director cited the case of Crews v. General Motors Corp., 107 Ga. App. 592 ( 130 S.E.2d 925), where the sole notice to the employer was a conversation between the claimant's wife and the employer's personnel supervisor three days after the claimant last worked in which the personnel supervisor was informed that the claimant was then in the hospital suffering from a heart attack.
In the present case the testimony from which the finding, with reference to the claimant having "reported it" to Mrs. Hart, was that: "She was sitting there typing and I said, `Mrs. Hart, I hurt my foot out there on a buggy,' and she said, `you go to the first aid room and get some alcohol — bathe your foot in that alcohol.'" Accordingly, the present case is not one where the only notice given was that the claimant notified the employer of the disability, and such case is distinguishable from the Crews case, supra, and similar cases exemplified by Fountain v. Georgia Marble Co., 95 Ga. App. 21 ( 96 S.E.2d 656), "where the employer had no notice that such injury was the result of an event which took place in the course of claimant's employment."
As was pointed out in the Fountain case, supra: "It has been held that the notice required by Code § 114-303 need only be that notice that will put the employer on notice to make an investigation if he sees fit to do so. See Railway Express Agency v. Harper, 70 Ga. App. 795, 796 ( 29 S.E.2d 434), and Davison- Paxon Co. v. Ford, 88 Ga. App. 890, 891 ( 78 S.E.2d 257)."
The award did not follow the finding of fact since it was based on the erroneous legal theory that the claimant's notice was, as a matter of law, insufficient. The notice which the deputy director found had been given, when considered with testimony of the employer's manager that Mrs. Hart received reports of accidents and "if it is something showing, looks like it is bad or anything, she comes to me or" the assistant manager.
The award of the full board, which in effect affirmed the award of the deputy director, did not follow the facts found and therefore, the judgment of the superior court affirming such award must be reversed.
Judgment reversed. Hall and Russell, JJ., concur.