2020 Georgia Code
Title 34 - Labor and Industrial Relations
Chapter 9 - Workers' Compensation
Article 3 - Procedure
Part 1 - Claims and Notice of Accident
§ 34-9-80. Procedure for Giving Notice of Accident; Requirements of Written Notice; Effect of Failure to Give Notice

Every injured employee or his representative shall, immediately on the occurrence of any accident or as soon thereafter as practicable, give or cause to be given to the employer, his agent, representative, or foreman, or the immediate superior of the injured employee a notice of the accident. This notice shall be given by the employee either in person or by his representative, and until such notice is given the employee shall not be entitled to any physician's fees nor to any compensation which may have accrued under the terms of this chapter prior to the giving of such notice. In the event that, within 30 days after the accident, neither the employee nor his representative has given a notice in person to the employer, his agent, representative, or foreman, or to the immediate superior of the injured employee, a written notice must be given. This written notice will not be required where an injured employee or his representative has given notice in person to the employer, his agent, representative, or foreman, or to the immediate superior of the injured employee. No compensation will be payable unless such notice, either oral or written, is given within 30 days after the occurrence of an accident or within 30 days after death resulting from 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 board for not giving such notice and it is reasonably proved to the satisfaction of the board that the employer had not been prejudiced thereby.

(Ga. L. 1920, p. 167, §§ 23, 24; Ga. L. 1923, p. 92, §§ 1, 2; Code 1933, § 114-303.)

- For article discussing injury as a result of aggravation, see 14 Ga. St. B. J. 135 (1978). For annual survey of workers' compensation, see 38 Mercer L. Rev. 431 (1986).

ANALYSIS

• General Consideration
• Notice
• A. Notice Insufficient
• B. Notice Sufficient
• Reasonable Excuse

General Consideration

Purpose.

- Purpose of this section was undoubtedly to prevent the belated filing of claims which might work a fraud or injustice upon the employer. Federated Mut. Implement & Hdwe. Ins. Co. v. Elliott, 88 Ga. App. 266, 76 S.E.2d 568 (1953); Kresge v. Holley, 104 Ga. App. 144, 121 S.E.2d 182 (1961).

Purpose of the notice requirement is to put the employer on notice of the injury so that it may make an investigation if it sees fit to do so. Carey v. Travelers Ins. Co., 133 Ga. App. 657, 212 S.E.2d 13 (1975).

- Liberal construction of O.C.G.A. § 34-9-80 is necessary to effectuate the humane purposes of the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.). Jones v. Fieldcrest Mills, Inc., 162 Ga. App. 848, 292 S.E.2d 523 (1982).

- This section provided in substance that every injured employee shall within 30 days give to the employer notice of the accident or no compensation shall be payable. Federated Mut. Implement & Hdwe. Ins. Co. v. Elliott, 88 Ga. App. 266, 76 S.E.2d 568 (1953).

Compliance with the notice provisions of this section was a necessary prerequisite to payment of compensation. Complete Auto Transit, Inc. v. Reavis, 105 Ga. App. 364, 124 S.E.2d 491 (1962); Crews v. GMC, 107 Ga. App. 592, 130 S.E.2d 925 (1963); Griffith v. Coggins Granite Indus., Inc., 114 Ga. App. 537, 152 S.E.2d 15 (1966); Jackson v. U.S. Fid. & Guar. Co., 119 Ga. App. 111, 166 S.E.2d 426 (1969).

- Failure to give notice immediately or as soon after the accident as practicable disqualifies the claimant for physician's fees and compensation accruing prior to the claimant's giving notice. Federated Ins. Group v. Pitts, 118 Ga. App. 356, 163 S.E.2d 841 (1968).

Failure of an employee to prove fulfillment of the notice requirements of O.C.G.A. § 34-9-80 does not result in a lack of jurisdiction of the matter, but instead results in a denial of the claim for compensation. Dugger v. North Bros. Co., 172 Ga. App. 622, 323 S.E.2d 907 (1984).

- No defect or inaccuracy in the notice shall be a bar to compensation unless the employer shall prove that the employer's interest was prejudiced thereby, and then only to the extent of the prejudice. 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).

- Under the broad definition of the term "accident" as used in the workers' compensation law, if the employee continued to perform the duties of the employment and thereby aggravated the initial injury, this would amount to a new "injury by accident." N.L. Indus. v. Childs, 150 Ga. App. 866, 258 S.E.2d 667 (1979).

- To hold that an employee who gives an employer notice of an employee's original accident but who continues to work to the point that the injury the employee received in the original accident results in a disability and who then files a disability claim within one year of the date of the original accident itself will be denied compensation unless the employee gives the employer a second notice that the original injury has become disabling would penalize "a claimant who attempted to continue working even though he was injured to some extent." Mason, Inc. v. Gregory, 161 Ga. App. 125, 291 S.E.2d 30 (1982).

If the employer is given notice of the employee's original accident and the employee's condition gradually worsens to the point of disability and a claim is filed for this subsequently occurring disability within one year of the original accident itself, the requirements of both O.C.G.A. §§ 34-9-80 and34-9-82 are met. Mason, Inc. v. Gregory, 161 Ga. App. 125, 291 S.E.2d 30 (1982).

- Burden is on the employee to give requisite notice, or prove that for justifiable reason notice could not be given within the proper time, or that the employer was otherwise aware of the accident. Neither that notice nor that knowledge is to be presumed but remains a matter of proof resting upon the claimant. Schwartz v. Greenbaum, 138 Ga. App. 695, 227 S.E.2d 479 (1976); Barron v. Pacific Employers Ins. Co., 149 Ga. App. 113, 253 S.E.2d 777 (1979).

This section did not place any burden upon the employer to become aware that its employee has experienced an accident. Schwartz v. Greenbaum, 138 Ga. App. 695, 227 S.E.2d 479 (1976); Barron v. Pacific Employers Ins. Co., 149 Ga. App. 113, 253 S.E.2d 777 (1979).

- Burden of giving notice was placed by the statute on the claimant, and it is not removed under the exception dealing with knowledge on the part of the employer without proof that the employer knew, or had reasonable opportunity to know, that an accident of which the employer had knowledge caused an injury to the claimant. Kresge v. Holley, 104 Ga. App. 144, 121 S.E.2d 182 (1961).

- 30-day notice period does not begin to run until the day when the claimant first had reason to realize claimant had sustained a work related injury. Commercial Union Ins. Co. v. Verner, 150 Ga. App. 13, 256 S.E.2d 603 (1979).

- Even if the date of injury is found to be the date of cessation of work, the employee is required to give notice that the employee's reason for ceasing work is because of a job-related injury. Carey v. Travelers Ins. Co., 133 Ga. App. 657, 212 S.E.2d 13 (1975); Mason, Inc. v. Gregory, 161 Ga. App. 125, 291 S.E.2d 30 (1982).

- The date of a gradually acquired injury should be set at the first time the injury becomes extensive enough either to prevent the claimant from working or to constitute a disability as itemized in the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.). Employers Mut. Liab. Ins. Co. v. Shipman, 108 Ga. App. 184, 132 S.E.2d 568 (1963).

If a claim is based on a gradual injury and when the evidence authorizes it, the date of the accident may be found to be the date the employee is required to cease work. Carey v. Travelers Ins. Co., 133 Ga. App. 657, 212 S.E.2d 13 (1975); Mason, Inc. v. Gregory, 161 Ga. App. 125, 291 S.E.2d 30 (1982).

- When the initial claim is based upon a "new accident" theory, it must be asserted against that employer in whose employment the proximate cause of the "new accident" - the aggravation of the original uncompensated injury - occurred. Slattery Assocs. v. Hufstetler, 161 Ga. App. 389, 288 S.E.2d 654 (1982).

Cited in Maryland Cas. Co. v. England, 34 Ga. App. 354, 129 S.E. 446 (1925); Blanchard v. Savannah River Lumber Co., 40 Ga. App. 416, 149 S.E. 793 (1929); State Hwy. Dep't v. Turner, 198 Ga. 795, 32 S.E.2d 805 (1945); Roberts v. Burnette, 72 Ga. App. 775, 35 S.E.2d 201 (1945); Shealy v. Benton, 82 Ga. App. 514, 61 S.E.2d 582 (1950); GMC v. Pruitt, 83 Ga. App. 620, 64 S.E.2d 339 (1951); Davison-Paxon Co. v. Ford, 88 Ga. App. 890, 78 S.E.2d 257 (1953); Padgett v. American Mut. Liab. Ins. Co., 96 Ga. App. 463, 100 S.E.2d 150 (1957); Employers Mut. Liab. Ins. Co. v. Holloway, 98 Ga. App. 265, 105 S.E.2d 370 (1958); Patterson v. Employer's Mut. Liab. Ins. Co., 99 Ga. App. 325, 108 S.E.2d 146 (1959); Rhodes v. Liberty Mut. Ins. Co., 101 Ga. App. 642, 115 S.E.2d 363 (1960); New Amsterdam Cas. Co. v. Kidd, 101 Ga. App. 910, 115 S.E.2d 427 (1960); Davis v. Liberty Mut. Ins. Co., 110 Ga. App. 389, 138 S.E.2d 603 (1964); Hyde v. Atlantic Steel Co., 112 Ga. App. 136, 144 S.E.2d 232 (1965); Fireman's Fund Am. Ins. Co. v. Hester, 115 Ga. App. 39, 153 S.E.2d 622 (1967); Duchess Chenilles, Inc. v. Goswick, 116 Ga. App. 384, 157 S.E.2d 304 (1967); Mallory v. American Cas. Co., 116 Ga. App. 477, 157 S.E.2d 775 (1967); Smith v. Columbus Transp., 116 Ga. App. 432, 157 S.E.2d 879 (1967); Hoard v. Phoenix Assurance Co., 117 Ga. App. 383, 160 S.E.2d 621 (1968); Savannah Elec. & Power Co. v. Edenfield, 118 Ga. App. 531, 164 S.E.2d 366 (1968); Aetna Cas. & Sur. Co. v. Davidson, 121 Ga. App. 669, 175 S.E.2d 91 (1970); Aetna Cas. & Sur. Co. v. Nix, 122 Ga. App. 878, 179 S.E.2d 97 (1970); Georgia Cas. & Sur. Co. v. Cochran, 127 Ga. App. 55, 192 S.E.2d 547 (1972); Employers Commercial Union Ins. Co. v. Offutt, 129 Ga. App. 270, 199 S.E.2d 406 (1973); Poston v. St. Paul Ins. Co., 131 Ga. App. 745, 206 S.E.2d 728 (1974); Clark v. Fireman's Fund Ins. Co., 131 Ga. App. 809, 207 S.E.2d 222 (1974); Continental Ins. Co. v. Peardon, 132 Ga. App. 162, 207 S.E.2d 658 (1974); Liberty Mut. Ins. Co. v. Carnley, 135 Ga. App. 599, 218 S.E.2d 307 (1975); Florida Plywood, Inc. v. Boyette, 140 Ga. App. 383, 231 S.E.2d 79 (1976); Pike v. Greyhound Bus Lines, 140 Ga. App. 863, 232 S.E.2d 143 (1977); Home Indem. Co. v. Howard, 143 Ga. App. 327, 238 S.E.2d 288 (1977); Williams v. Travelers Ins. Co., 153 Ga. App. 443, 265 S.E.2d 354 (1980); West Point Pepperell v. Gordon, 163 Ga. App. 837, 296 S.E.2d 155 (1982); Whitaker v. Fieldcrest Mills, Inc., 174 Ga. App. 533, 330 S.E.2d 761 (1985); Harper v. L & M Granite Co., 197 Ga. App. 157, 397 S.E.2d 739 (1990); Satilla Regional Medical Ctr. v. Dixon, 238 Ga. App. 619, 518 S.E.2d 723 (1999); Georgia Pac. Corp. v. Cross, 275 Ga. App. 664, 621 S.E.2d 586 (2005).

Notice

1. Nature and Sufficiency

Notice need not be given with a view to claiming compensation. Skinner Poultry Co. v. Mapp, 98 Ga. App. 772, 106 S.E.2d 825 (1958); Employers Mut. Liab. Ins. Co. v. Shipman, 108 Ga. App. 184, 132 S.E.2d 568 (1963); Bryant v. J.C. Distribs., Inc., 108 Ga. App. 401, 133 S.E.2d 109 (1963); Schwartz v. Greenbaum, 236 Ga. 476, 224 S.E.2d 38 (1976); Schwartz v. Greenbaum, 138 Ga. App. 695, 227 S.E.2d 479 (1976); McElhannon v. St. Paul Fire & Marine Ins. Co., 141 Ga. App. 169, 233 S.E.2d 28 (1977); Home Indem. Co. v. Brown, 141 Ga. App. 563, 234 S.E.2d 97 (1977); Mason, Inc. v. Gregory, 161 Ga. App. 125, 291 S.E.2d 30 (1982); Jones v. Fieldcrest Mills, Inc., 162 Ga. App. 848, 292 S.E.2d 523 (1982); State v. Mitchell, 177 Ga. App. 333, 339 S.E.2d 384 (1985); Wilson v. Manville Bldg. Materials Prods., Inc., 179 Ga. App. 408, 346 S.E.2d 851 (1986).

- Notice required by this section need only be that notice that will put the employer on notice to make an investigation if the employer sees fit to do so. Fountain v. Georgia Marble Co., 95 Ga. App. 21, 96 S.E.2d 656, aff'd, 213 Ga. 352, 99 S.E.2d 144 (1957); Skinner Poultry Co. v. Mapp, 98 Ga. App. 772, 106 S.E.2d 825 (1958); Employers Mut. Liab. Ins. Co. v. Shipman, 108 Ga. App. 184, 132 S.E.2d 568 (1963); Bryant v. J.C. Distribs., Inc., 108 Ga. App. 401, 133 S.E.2d 109 (1963); Employers Mut. Liab. Ins. Co. v. Dyer, 108 Ga. App. 623, 134 S.E.2d 49 (1963); Cofield v. Liberty Mut. Ins. Co., 110 Ga. App. 225, 138 S.E.2d 115 (1964); Schwartz v. Greenbaum, 236 Ga. 476, 224 S.E.2d 38 (1976); Schwartz v. Greenbaum, 138 Ga. App. 695, 227 S.E.2d 479 (1976); McElhannon v. St. Paul Fire & Marine Ins. Co., 141 Ga. App. 169, 233 S.E.2d 28 (1977); Home Indem. Co. v. Brown, 141 Ga. App. 563, 234 S.E.2d 97 (1977); Mason, Inc. v. Gregory, 161 Ga. App. 125, 291 S.E.2d 30 (1982); Jones v. Fieldcrest Mills, Inc., 162 Ga. App. 848, 292 S.E.2d 523 (1982); State v. Mitchell, 177 Ga. App. 333, 339 S.E.2d 384 (1985); Wilson v. Manville Bldg. Materials Prods., Inc., 179 Ga. App. 408, 346 S.E.2d 851 (1986).

This section did not require that notice of an injury or accident must show that it "arose out of and in the course of the employment." Schwartz v. Greenbaum, 236 Ga. 476, 224 S.E.2d 38 (1976); McElhannon v. St. Paul Fire & Marine Ins. Co., 141 Ga. App. 169, 233 S.E.2d 28 (1977); Wilson v. Manville Bldg. Materials Prods., Inc., 179 Ga. App. 408, 346 S.E.2d 851 (1986).

Required notice of injury need not show that injury arose out of and in the course of employment. Jones v. Fieldcrest Mills, Inc., 162 Ga. App. 848, 292 S.E.2d 523 (1982).

- While the employee must timely inform an employer of the accident or injury in order to satisfy the notice requirement of O.C.G.A. § 34-9-80, it is not necessary for the employee to state that the accident or injury occurred on the job. Gossage v. City of Dalton Fire Dep't, 257 Ga. 430, 360 S.E.2d 249 (1987).

Notice must be of an injury by accident. Snyder v. Employers Mut. Liab. Ins. Co., 115 Ga. App. 111, 153 S.E.2d 736 (1967).

- It is illogical and unreasonable to hold that an employer has sufficient notice of the existence of an injury that has not yet been discovered by either the employee or the employee's treating physician. William L. Bonnell Co. v. McKoon, 184 Ga. App. 516, 361 S.E.2d 680 (1987).

Statute does not require both personal and written notice as a condition of compensation; if the employee gives notice, personal or written, within 30 days and shows that the employee's accidental injury arose from employment, the employee is entitled to compensation. Federated Ins. Group v. Pitts, 118 Ga. App. 356, 163 S.E.2d 841 (1968).

- While it is not required that notice of the accident be in any prescribed form, there must be at least enough information about it imparted to put the employer on notice to make an investigation if the employer desires to do so. Complete Auto Transit, Inc. v. Reavis, 105 Ga. App. 364, 124 S.E.2d 491 (1962).

Notice need not be in a particular format, but the employee carries the burden of giving timely notice, which will indicate to the proper statutory recipient thereof that there exists at least a possibility that the injury complained of may be job-related so that the employer may make an investigation if it sees fit to do so. 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).

Verbal notice was in compliance with the provisions of this section. Reliance Ins. Co. v. Oliver, 117 Ga. App. 466, 160 S.E.2d 615 (1968).

- 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 the manager's assistant is notice to an "agent" or "representative" as is required by this section. Cofield v. Liberty Mut. Ins. Co., 110 Ga. App. 225, 138 S.E.2d 115 (1964).

- Under this section, a foreperson in charge of the special work in which the employee is engaged is an "agent" or "representative" within the meaning of that section, whose knowledge of an accident, derived from the employee, within a day or two thereafter, makes written notice by the employee within 30 days, as provided by the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.), unnecessary. Van Treeck v. Travelers Ins. Co., 157 Ga. 204, 121 S.E. 215 (1924).

- Evidence authorized the inference that the representative of the injured employee immediately gave notice of the injury to the immediate superior of the injured employee, and therefore a written notice to the employer was not necessary. Ocean Accident & Guarantee Corp. v. Martin, 35 Ga. App. 504, 134 S.E. 174 (1926).

When an employee gave timely notice to the employee's immediate supervisor of an accident and such notice was sufficient to allow the employer to investigate, if the employer saw fit to do so, such notice complied with this section. Liberty Mut. Ins. Co. v. Elrod, 102 Ga. App. 548, 116 S.E.2d 890 (1960).

- Mention of the fact that claimant had hurt claimant's back in connection with lifting, made to a fellow employee rather than to claimant's foreperson or superior, was not sufficient notice. Jackson v. U.S. Fid. & Guar. Co., 119 Ga. App. 111, 166 S.E.2d 426 (1969).

2. Examples and Illustrations

A. Notice Insufficient

- Employer's knowledge of the general state of an employee's health on what turned out to be the employee's last working day did not fulfill the notice requirements of O.C.G.A. § 34-9-80. Dugger v. North Bros. Co., 172 Ga. App. 622, 323 S.E.2d 907 (1984).

Mere fact that claimant's supervisor gave claimant a slip to go to the doctor is not an admission of notice and the fact that the doctor may have found claimant to be suffering from a condition that may have resulted from an accident was not sufficient to constitute the notice which the statute requires. Complete Auto Transit, Inc. v. Reavis, 105 Ga. App. 364, 124 S.E.2d 491 (1962); Jackson v. U.S. Fid. & Guar. Co., 119 Ga. App. 111, 166 S.E.2d 426 (1969).

- When the claimant's testimony, the only evidence offered to prove notice of accident, was equivocal, vague and contradictory, and showed that no notice of injury from the accident was given at all, the finding of the director, that the notice required by this section was not given cannot be said to be unsupported by the evidence. Carden v. Liberty Mut. Ins. Co., 108 Ga. App. 829, 134 S.E.2d 879 (1964).

B. Notice Sufficient

Notice must alert employer to possibility of job-related injury.

- Burden is clearly on the employee to give such notice as will alert the employer to the possibility of a job-related injury and to prompt the latter to make such investigation as the employer may see fit. Such notice need not be in a particular format, and need not state that it is being given for the express purpose of filing a workers' compensation claim. Either the language or the context of the notice, however, must be such as to indicate to the employer (or its agent or appropriate supervisory personnel) that there exists at least a possibility that the injury complained of may be job-related. Carroll v. Dan River Mills, Inc., 169 Ga. App. 558, 313 S.E.2d 741 (1984).

- When the record demonstrates that claimant's injury was sustained on the day claimant ceased work, that the employer had specific knowledge of the toll claimant's work was taking on claimant's back before claimant's injury occurred and became aware, shortly after claimant's admission to the hospital, that claimant had suffered a slipped disk, the employer had sufficient notice of the injury to warrant an investigation as soon as it became aware that claimant could no longer perform claimant's work duties due to claimant's injury. This notice occurred after the injury and within the statutory time period. 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).

Delivery of temporary medical limitation slip to supervisor after treatment by the company doctor in the employer's clinic was sufficient to authorize a finding of notice as required by this section. Employers Mut. Liab. Ins. Co. v. Dyer, 108 Ga. App. 623, 134 S.E.2d 49 (1963).

Since the accident took place during working hours and was witnessed by fellow employees, the police were immediately notified, an ambulance was sent, and the employee died on the way to the hospital, there is sufficient circumstantial evidence in the absence of any indication to the contrary that the employer had knowledge of the accident under the exception to the provisions of this section. Insurance Co. of N. Am. v. Ross, 122 Ga. App. 760, 178 S.E.2d 762 (1970).

Evidence that employee reported injury to supervisor "when he was able to get around after his injury" when that employee was confined to the hospital for five weeks is sufficient to support the findings of the deputy director that the employer had timely notice of the injury. U.S. Fire Ins. Co. v. Phillips, 124 Ga. App. 7, 183 S.E.2d 13 (1971).

- When there was an official of the employer who had knowledge of the circumstances surrounding the deceased's death, the employer received notice of the accident as required by this section. Georgia Power Co. v. Crutchfield, 125 Ga. App. 488, 188 S.E.2d 140 (1972).

- When the evidence showed that the foreperson of the two employees ordered them to report to work in another city the next day; knew that they were rooming in that city; found out on the day of the accident that they were injured on a direct route from their job to their lodging place and their next job site; talked with their fellow employees, who were following their automobile and who arrived shortly after the collision; and visited one of them in the hospital, discussing the details of the collision with the injured employee, the victims did not have to give formal notice, because the facts constituted knowledge of the accident under this section and were sufficient to put the employer on notice of the accident. Wilson v. Georgia Power Co., 128 Ga. App. 352, 196 S.E.2d 693 (1973).

Employee's statement to a supervisor of the employee's symptoms and the employee's request for hospitalization was sufficient notice of an accident. American Motorists Ins. Co. v. Brown, 128 Ga. App. 813, 198 S.E.2d 348 (1973).

Conversations between claimant and the foreperson and a company nurse in which claimant attributed claimant's back pains to driving a piece of defective equipment is sufficient to constitute notice. West Point Pepperell, Inc. v. Crow, 129 Ga. App. 112, 198 S.E.2d 905 (1973).

Facts which arose through the doctor's testimony upon deposition were sufficient to put the employer on notice of the injury so that the employer could have made an investigation if the employer saw fit to do so. U.S. Asbestos v. Hammock, 140 Ga. App. 378, 231 S.E.2d 792 (1976).

Plaintiff 's statement to a supervisor that plaintiff was becoming sick from working in a frozen food area, and that the plaintiff was too ill to complete a work day, was sufficient notice of the plaintiff's injury. Colonial Stores, Inc. v. Hambrick, 176 Ga. App. 544, 336 S.E.2d 617 (1985).

- Claimant's January 13, 1989, statement that claimant's back was about to give out was not premature notice of the February 3 injury but merely served to inform the employer that claimant's back problem was work 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).

- Although employee was unaware that the employee suffered a new accident and could therefore file a claim for workers' compensation, there was some evidence to indicate that the employer at least knew of the possibility that a job-related injury occurred, when the employer was aware of the employee's previous back injury; that the employee had been on a medical leave of absence due to the employee's back injury for about six months; that the employee returned to the regular work the employee did prior to the initial injury; that the employee had a back problem during the time the employee was working for employer; that the employee's supervisor heard the employee mention a back problem and also heard several other employees mention it; and that the employee called in and left a message on the tape recorder that the employee would be out of work because the employee was having trouble with the employee's back again and was going back to the doctor. Therefore, the ruling of the superior court reversing the board's finding of sufficient notice was in error. Wilson v. Manville Bldg. Materials Prods., Inc., 179 Ga. App. 408, 346 S.E.2d 851 (1986).

Since claimant timely stated that claimant had "sneezed and hurt his back", the employer then had the opportunity to make additional inquiries relating to the injury if it cared to do so, and the notice was sufficient under O.C.G.A. § 34-9-80. Gossage v. City of Dalton Fire Dep't, 257 Ga. 430, 360 S.E.2d 249 (1987).

- 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).

- 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).

- 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 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).

- 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 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).

- 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).

- 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).

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 complication of diabetes until months later; further, the employer was not prejudiced by the late notice. Mcadoo v. Metropolitan Atlanta Regional Transit Authority, Ga. App. , S.E.2d (Mar. 11, 2014).

- 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).

- 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).

- 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).

- 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 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).

- If the employer received no formal notice until more than 30 days after the employee's death, but the employer did have notice 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).

RESEARCH REFERENCES

Am. Jur. 2d.

- 82 Am. Jur. 2d, Workers' Compensation, §§ 490, 497 et seq., 602.

- 100 C.J.S., Workers' Compensation, § 986 et seq.

- Injury to muscles or nerves attributable to occupation, but not due to a sudden event, as within Workmen's Compensation Act, 29 A.L.R. 510.

Accident and disability insurance: when insured deemed to be totally and continuously unable to transact all business duties, 37 A.L.R. 151.

Workmen's compensation: duty of injured employee to submit to an examination, 41 A.L.R. 866.

Requirement of Workmen's Compensation Act as to notice of accident or injury, 78 A.L.R. 1232; 92 A.L.R. 505; 107 A.L.R. 816; 145 A.L.R. 1263.

May notice of injury or claim contemplated by Workmen's Compensation Act be waived, 78 A.L.R. 1306.

Construction and application of provisions of workmen's compensation acts regarding allowance for aggravation of injury from same accident after time limited for filing claim, 105 A.L.R. 971.

Workmen's compensation: date of accident or date when injury becomes manifest as time from which period for filing claim commences to run, 108 A.L.R. 316.

Workers' compensation: compensability of injuries incurred traveling to or from medical treatment of earlier compensable injury, 83 A.L.R.4th 110.