Dugger v. North Bros. Co.

• Decision Date: 16 November 1984
• Docket Number: No. 68322,68322
• Citation: 172 Ga.App. 622,323 S.E.2d 907
• Parties: DUGGER v. NORTH BROTHERS COMPANY et al.
• Court: Georgia Court of Appeals

Page 907

323 S.E.2d 907

172 Ga.App. 622

DUGGER v. NORTH BROTHERS COMPANY et al.

No. 68322.

Court of Appeals of Georgia.

Nov. 16, 1984.

Richard H. Middleton, Jr., Eugene C. Brooks IV, Savannah, for appellant.

Arnold C. Young, Jonathan D. Sprague, Savannah, for appellees.

BENHAM, Judge.

On October 9, 1979, appellant's physician told appellant that he had contracted asbestosis, which had rendered him totally disabled. Asserting that he had become totally disabled due to exposure to asbestos while in the employ of appellee North Brothers Company, appellant/employee filed a claim for benefits under the Workers' Compensation Act (OCGA T. 34, Ch. 9) on July 16, 1980. After conducting a hearing and considering the evidence, an administrative law judge found, inter alia, that while asbestosis had rendered appellant totally disabled on July 26, 1979 (the day following appellant's last working day), he was not entitled to receive workers' compensation benefits from North Brothers because he had failed to give notice of the accident to his employer within 30 days after the accident, as required by OCGA § 34-9-80. The employee's appeal to the State Board of Workers' Compensation resulted in a reversal of the ALJ's decision. After its de novo review of the evidence, a majority of the Board found that appellant/claimant "became totally disabled to work by reason of the occupational disease of asbestosis on October 9, 1979" and that North Brothers "had notice of claimant's condition by virtue of claimant's generally poor health on July 25, 1979," the day appellant last worked for appellee. North Brothers sought review of the Board's award in the superior court, which reversed the Board on the ground that appellant had failed to give his employer timely notice of the accident, as required by OCGA § 34-9-80. Specifically, the superior court held that "the Board erred in finding that North Brothers' knowledge of Dugger's general poor health at the time his employment was terminated gave North Brothers notice of Dugger's disablement due to asbestosis arising two and one-half (2 1/2) months later." Appellant's application for discretionary appeal was subsequently granted by this court.

1. As may be discerned from a perusal of the facts summarized above, resolution of this case revolves around a determination of whether appellee/employer received the notice of appellant's disablement that OCGA § 34-9-80 requires. The question posed is one of utmost importance to the parties to this appeal since "[c]ompliance with the 30-day notice provision of the [Workers'] Compensation Act [OCGA § 34-9-80] is a prerequisite to the payment of compensation." Jackson v. U.S. Fidelity etc. Co., 119 Ga.App. 111(1), 166 S.E.2d 426 (1969). See also Barron v. Pacific Employers Ins. Co., 149 Ga.App. 113(2), 253 S.E.2d 777 (1979). Indeed, the question is of interest to the bench and bar inasmuch as we are dealing with a question concerning the application of the notice provision to a case involving an occupational disease.

However, before we can delve into the adequacy of any notice of appellant's accident that North Brothers may have received, we must answer a preliminary question raised by appellant: Is the Board's decision that the employer had the requisite notice a finding of fact which, if supported by any evidence, must be affirmed by the reviewing superior court? Or is that decision a conclusion of law which, if erroneous, subjects the Board's award to reversal by the reviewing superior court? Appellant argues that it is a finding of fact which was supported by evidence of record and therefore not subject to reversal by the superior court. Appellee maintains that it is a mixed question of law and fact, and we are inclined to agree. While the Board's conclusion that appellee had notice on July 25 of appellant's disablement is a factual finding, whether that which the Board determined was "notice" (i.e., the employer's knowledge of appellant's generally poor health on July 25, 1979) was sufficient as a matter of law to put the employer on notice of the possibility of an asbestosis workers' compensation claim is a legal question subject to appellate review. See Carroll v. Dan River Mills, 169 Ga.App. 558, 562, 313 S.E.2d 741 (1984). See also Schwartz v. Greenbaum, 136 Ga.App. 259, 221 S.E.2d 61 (1975); vacated, 236 Ga. 476, 224 S.E.2d 38 (1976); on remand, 138 Ga.App. 695, 227 S.E.2d 479 (1976). Thus, contrary to appellant's contention, the superior court did not substitute its finding of fact for that handed down by the Board when that court determined that the "notice" the Board relied upon was insufficient as a matter of law. It falls upon this court to determine if the superior court's determination was correct as a matter of law.

2. Under the provisions of the article of the Workers' Compensation Act governing occupational diseases (OCGA § 34-9-280 et seq.), asbestosis is an occupational disease which, if certain criteria are met, can cause an employee's disablement. See OCGA § 34-9-280(2). "Disablement means the event of an employee becoming actually incapacitated because of occupational disease from performing ... any work in any ... occupation for remuneration." OCGA § 34-9-280(2). The article further states that disablement resulting from an occupational disease is to be treated as the occurrence of an injury by accident, and that the practices and procedures outlined in the Workers' Compensation Act are applicable. OCGA § 34-9-281(a). Thus, a disabled employee, or his representative, is required to give or cause to be given to the employer a notice of the disablement immediately on its occurrence or as soon thereafter as practicable. OCGA § 34-9-80. However no such notice is required if the employer or his agent had knowledge of the disablement. Id. Here, there is no question that appellant did not give notice; it is asserted that such action on the part of appellant was unnecessary because appellee had knowledge of the disablement since it was aware of appellant's "below average" health on the last day he worked for North Brothers. Evidence concerning the extent of appellee's knowledge is contained in the record in the testimony of the man who hired appellant on behalf of North Brothers. He stated that, at the time appellant was hired, his health was "below average," and that appellant complained to him that "his health wasn't that good and he was having some problem with his hand or arms, I don't--like arthritis or something like that." The witness stated that appellant left North Brothers as of July 25, 1979 due to "the problems with his hands." While appellant and the Board equated the employer's knowledge of the general state of the employee's health on what turned out to be his last working day with fulfillment of the notice requirements of OCGA § 34-9-80, we cannot agree that such knowledge constitutes the notice envisioned by the statute.

An employer's knowledge of an accident/disablement cannot be presumed, but must be proven by the employee-claimant. Schwartz v. Greenbaum, 138 Ga.App. 695, 227 S.E.2d 479, supra. In Mason, Inc. v. Gregory, 161 Ga.App. 125, 128, 291 S.E.2d 30 (1982), this court stated that notice given pursuant to OCGA § 34-9-80 must "put the employer on notice of the accident [/disablement] which ultimately serves as the basis for [the employee's] claim." Thus, an employer's knowledge of an employee's history of heart disease is not knowledge of the heart attack for which the employee seeks benefits. Schwartz v. Greenbaum, 138 Ga.App. 695, 227 S.E.2d 479, supra. On the other hand, an employer who takes an employee to a physician for treatment of an ailment or is aware of an employee who, complaining of pain, leaves his job to see a physician is deemed to have the knowledge required by OCGA § 34-9-80. Argonaut Ins. Co. v. Cline, 138 Ga.App. 778(1), 227 S.E.2d 405 (1976); Ga.--Pacific Corp. v. Buchanan, 113 Ga.App. 844(3), 149 S.E.2d 831 (1966). If knowledge of general "below average" health is held to...