Gossage v

City of Dalton Fire Dep’t, 257 Ga. 430, 360 S.E.2d 249 (1987). Notice requirements met. — When there was evidence to authorize findings that appellant-employer knew of appellee’s preexisting injury and of worsening of appellee’s condition so that it could have made investigation had it chosen to do so, this was sufficient to meet the notice requirements of O.C.G.A. § 34-9-80. Dairymen, Inc. v. Wood, 162 Ga. App. 430, 291 S.E.2d 763 (1982). Recovery despite statements that injury was not work-related. — Claimant’s statements that the injury was not work related do not preclude claimant’s recovery as there was evidence of at least a possibility that the injury was job related. Impress Communications, Inc. v. Stanley, 202 Ga. App. 226, 414 S.E.2d 238 (1991), cert. denied, 202 Ga. App. 906, 414 S.E.2d 238 (1992). Admission of notice. — When physician’s testimony implied that within 30 days of the injury, the employer’s representative told the physician about the accident and the employee’s injury on the job, such a statement would constitute an admission by the employer inconsistent with its contention of no notice and would be evidence of the employer’s knowledge. Employers Ins. Co. v. Goss, 107 Ga. App. 249, 129 S.E.2d 545 (1963). Reasonable Excuse 1. Determination by Board 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 34-9-80 a bar to an award of compensation, is a question of fact, to be determined by the board, and its finding upon such a question of fact, if supported by the evidence, is, in the absence of fraud, conclusive. Federated Mut. Implement & Hdwe. Ins. Co. v. Elliott, 88 Ga. App. 266, 76 S.E.2d 568 (1953); Dill v. Ocean Accident & Guarantee Co., 95 Ga. App. 60, 96 S.E.2d 638 (1957); Kresge v. Holley, 104 Ga. App. 144, 121 S.E.2d 182 (1961). Reasonableness of the excuse offered for failure to give the notice is a matter for determination by the board. Hardware Mut. Cas. Co. v. Sprayberry, 69 Ga. App. 196, 25 S.E.2d 74 (1943); Anderson v. Houston Fire & Cas. Ins. Co., 104 Ga. App. 680, 122 S.E.2d 589 (1961). Whether or not delay in giving notice was excusable was peculiarly a matter for the determination of the board, it being best situated to determine both the extenuating causes and the prejudicial results of a failure to comply strictly with the provisions of this section. Federated Mut. Implement & Hdwe. Ins. Co. v. Elliott, 88 Ga. App. 266, 76 S.E.2d 568 (1953). Reasonable excuse for not giving employer notice. — There was evidence in the record to support the State Board of Worker’s Compensation’s conclusion that the driver demonstrated a reasonable excuse for not giving the employer timely notice and that the employer was not prejudiced thereby. McAdoo v. Metropolitan Atlanta Rapid Transit Auth., 326 Ga. App. 788, 755 S.E.2d 278 (2014). If 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 that the failure to give notice is excused. Anderson v. Houston Fire & Cas. Ins. Co., 104 Ga. App. 680, 122 S.E.2d 589 (1961). 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. Anderson v. Houston Fire & Cas. Ins. Co., 104 Ga. App. 680, 122 S.E.2d 589 (1961); Crews v. GMC, 107 Ga. App. 592, 130 S.E.2d 925 (1963). If there is any competent evidence to support the board’s findings, the 598 34-9-80 WORKERS’ COMPENSATION findings must be accepted by the appellate courts. Anderson v. Houston Fire & Cas. Ins. Co., 104 Ga. App. 680, 122 S.E.2d 589 (1961). When 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, the reviewing court will not disturb the order of the board denying compensation. Anderson v. Houston Fire & Cas. Ins. Co., 104 Ga. App. 680, 122 S.E.2d 589 (1961). Conflicting evidence. — When a finding of fact by the board on the question of adequate notice is supported by any evidence, though the evidence is in conflict, the finding is conclusive and on appeal must be affirmed by the court. Bryant v. J.C. Distribs., Inc., 108 Ga. App. 401, 133 S.E.2d 109 (1963). Absence of any finding on notice is not cause for reversal when the facts are undisputed that the employer was given timely notice of the injury. Fulton Indus. v. Knight, 127 Ga. App. 604, 194 S.E.2d 346 (1972). Appellate court did not disturb the order denying compensation, which was based on the ground that the claim for compensation was barred by failure to give the required notice. James v. Fite, 38 Ga. App. 759, 145 S.E. 536 (1928). Error to reverse. — When the commission finds as a matter of fact that an agent or representative of an employer has actual notice of an injury to an employee it is error for the superior court to reverse such holding upon the grounds that no written notice was given. Van Treeck v. Travelers Ins. Co., 31 Ga. App. 603, 121 S.E. 584 (1924). 2. Grounds for Excuse Proof of employer’s knowledge of injury would make proof of other notice unnecessary. Employers Ins. Co. v. Goss, 107 Ga. App. 249, 129 S.E.2d 545 (1963). Bus driver’s notice of injury was sufficient and timely under O.C.G.A. § 34-9-80, given driver’s supervisor’s awareness of the pain and difficulty the driver was suffering, even if neither the driver nor the supervisor was aware that the pain was work-related and not a com- 34-9-80 plication of diabetes until months later; further, the employer was not prejudiced by the late notice. Mcadoo v. Metropolitan Atlanta Regional Transit Authority, 2014 Ga. App. LEXIS 129 (Mar. 11, 2014). Actual knowledge found. — When at the date on which the aggravation occurred, the appellant’s attorney took part in the deposition upon which the board based its finding of the occurrence of the aggravated accident, the appellants’ attorney had actual knowledge of the ‘‘accident.’’ U.S. Asbestos v. Hammock, 140 Ga. App. 378, 231 S.E.2d 792 (1976). Fraud not found. — Mere fact that an employee is an illiterate, and that the employer fails to advise the employee orally that the employee should notify the employer of any accident which the employee might sustain, does not constitute fraud so as to relieve the employee of the employee’s obligation to report the accident. Jeffers v. Liberty Mut. Ins. Co., 115 Ga. App. 528, 154 S.E.2d 801 (1967). Since a claimant was uneducated and did not understand the difference between insurance and workers’ compensation the claimant would not be estopped from receiving the benefits of the workers’ compensation law (see now O.C.G.A. Ch. 9, T. 34). Coulter v. Royal Indem. Co., 95 Ga. App. 124, 97 S.E.2d 358, rev’d on other grounds, 213 Ga. 277, 98 S.E.2d 899 (1957). Ignorance of law. — In view of the fact that the claimant and claimant’s spouse were ignorant regarding the workers’ compensation law (see now O.C.G.A. § 34-9-1 et seq.) and the possible benefits to be derived therefrom, the law must be construed to take care of this human element particularly in view of the fact that the claimant and the claimant’s spouse did very well indeed in giving notice. Coulter v. Royal Indem. Co., 95 Ga. App. 124, 97 S.E.2d 358, rev’d on other grounds, 213 Ga. 277, 98 S.E.2d 899 (1957). Delay immaterial. — When the evidence demands that the employer was placed on notice of an injury to the employee arising out of and in the course of employment, but the employer did not receive notice that a claim for compensation would be made until more than 30 days after the employee’s death, this delay 599 Reasonable Excuse (Cont’d) 2. Grounds for Excuse (Cont’d) is immaterial because the required notice need not be given with a view to claiming compensation. Fulton Indus. v. Knight, 127 Ga. App. 604, 194 S.E.2d 346 (1972). Physical incapacity. — If the employer received no formal notice until more than 30 days after the employee’s death, but the employer did have notice 34-9-81 that the employee was ‘‘sick’’ on the job, and was too ill the following day to return to work, this was a circumstance which might have been considered by the board in finding, as a matter of fact, that failure to give the proper notice was excusable and that the claim should not thereby be barred. Federated Mut. Implement & Hdwe. Ins. Co. v. Elliott, 88 Ga. App. 266, 76 S.E.2d 568 (1953).