Colonial Stores, Inc. v. Hambrick, 70811

• Decision Date: 23 October 1985
• Docket Number: No. 70811,70811
• Citation: 176 Ga.App. 544,336 S.E.2d 617
• Parties: COLONIAL STORES, INC. et al. v. HAMBRICK.
• Court: Georgia Court of Appeals

Page 617

336 S.E.2d 617

176 Ga.App. 544

COLONIAL STORES, INC. et al. v. HAMBRICK.

No. 70811.

Court of Appeals of Georgia.

Oct. 23, 1985.

Elaine W. Whitehurst, Robert D. Ingram, Atlanta, for appellants.

Glyndon C. Pruitt, Buford, for appellee.

BENHAM, Judge.

Appellant Colonial Stores, Inc., formerly employed appellee in one of its Big Star supermarkets. For the last three months of his employment, appellee worked as a frozen foods clerk, but on December 11, 1981, he was forced to leave work due to the worsening of his pre-existing pulmonary disease. He alleged that his condition was aggravated by his work duties, which required him to move frozen foods into and out of a large freezer. Appellee applied for and was awarded workers' compensation benefits, and the award was upheld by the State Board of Workers' Compensation and the Superior Court of DeKalb County. When the trial court's decision was filed, copies of the decision were not sent to the parties within the 30-day period for timely appeal to this court. When appellant did learn of the adverse decision, it applied for and was denied the right to appeal. Appellant then filed a motion to have the trial court's judgment set aside; the trial court granted the motion, set aside the judgment, and then reentered it. Within 30 days of the date of reentry, appellant filed a new application for discretionary appeal, which we granted. The case is now before us on appeal, and appellant cites seven enumerations of error.

1. Appellant followed the proper procedure to bring its case before us on appeal. Cambron v. Canal Ins. Co., 246 Ga. 147 (1), 269 S.E.2d 426 (1980).

2. Appellant cites Dugger v. North Bros. Co., 172 Ga.App. 622, 323 S.E.2d 907 (1984), in support of its contention that, as a matter of law, appellee did not give his employer sufficient notice that his reason for leaving work was because he suffered a job-related injury, such notice being required by the Workers Compensation Act ("Act") (OCGA § 34-9-80). Our review of the record does not comport with appellant's argument. There was evidence that appellee had a good work record until he was transferred to the frozen food/cold storage department; that the store manager knew that due to appellee's lung condition he should not be working in frozen foods; that appellee was unable to complete his work day on December 11, 1981, and that before he left, he told the supervisor who was on duty "that the frozen food had got to me, and I could not finish that night." The ALJ held that appellee had given sufficient notice of his accident under the Act, and we agree. "The required notice need not be given with a view to claiming compensation and is sufficient if it puts the employer on notice of the injury so that it may make an investigation if it sees fit to do so. [Cits.]" Argonaut Ins. Co. v. Cline, 138 Ga.App. 778, 780, 227 S.E.2d 405 (1976). Compare Carroll v. Dan River Mills, 169 Ga.App. 558, 313 S.E.2d 741 (1984). The Dugger case is also distinguishable from the instant case inasmuch as the only "notice" that Dugger's employer had was "Dugger's general poor health at the time his employment was terminated..." Dugger v. North Bros., supra, at 623, 323 S.E.2d 907. Here we have appellee's statement to his supervisor that the frozen food area was making him sick, in addition to the other evidence of the specific problem.

3. Appellant further asserts that appellee did not sustain an "injury by accident" within the meaning of OCGA § 34-9-1 (4), and that his illness was not work related but was merely a gradual deterioration of his condition and therefore not compensable under the Act. This argument is apparently based on the fact that the ALJ did not specify a single on-the-job incident as being the cause of appellee's injury. In reviewing the record, we note that there was medical testimony to the effect that appellee's susceptibility to lung infections was made more pronounced by his continuing exposure to the freezing temperatures at work. While it is undisputed that appellee had a pre-existing lung disease, the evidence showed that it was aggravated by his employment duties and that the subsequent lung infection from which he suffered was superimposed on his pre-existing condition.

"[I]f the employment contributes to the aggravation of the pre-existing injury, it is an accident under our compensation law, and is compensable and it is not necessary that there be a specific job-connected incident which aggravates the previous injury. [Cit.] It is...