Mize v. Sangamo Elec. Co., 18796

• Citation: 251 S.C. 250,161 S.E.2d 846
• Decision Date: 31 May 1968
• Docket Number: No. 18796,18796
• Court: South Carolina Supreme Court
• Parties: Virginia M. MIZE, Respondent, v. SANGAMO ELECTRIC COMPANY and the Travelers Insurance Company, Appellants.

Page 846

161 S.E.2d 846

251 S.C. 250

Virginia M. MIZE, Respondent, v. SANGAMO ELECTRIC COMPANY and the Travelers Insurance

Company, Appellants.

No. 18796.

Supreme Court of South Carolina.

May 31, 1968.

Watkins, Vandiver, Kirven, Long & Gable, Anderson, for appellants.

Anderson, Chapman & Kenyon, Anderson, for respondent.

BUSSEY, Justice.

On a prior appeal in this Workmen's Compensation case, 246 S.C. 307, 143 S.E.2d 590, the cause was remanded to the Industrial Commission for the purpose of making factual findings on three points, not made in the original award: (1) whether there was a reasonable excuse for the failure of the employee to give written notice of the accident within thirty days; (2) whether the employer was prejudiced by such failure, and (3) whether a claim was filed with the Industrial Commission within one year, as required by statute. For the purpose of determining these factual issues, the opinion provided for the taking of such additional testimony as the parties might offer.

Pursuant to this remand, another hearing has been held. The Commission has found factually that there was reasonable excuse for the employee not giving written notice within the thirty days; that the employer cannot claim prejudice because it had full notice in fact through a plant supervisor, and that the claim was filed with the Commission by claimant through her attorney on August 30, 1963, well within one year after her accident, which occurred on December 14, 1962. The prior award was in all other respects reaffirmed. The award of the Commission has been affirmed by the circuit court and the employer is here again as appellant.

Since our prior opinion did not deal in any detail with the facts of the case, we now set them forth in the light of the established principle that the evidence and the inferences reasonably deducible therefrom have to be viewed in the light most favorable to the claimant.

Claimant, at the time of her accident, on December 14, 1962, was approximately thirty-six years of age. She went to work that afternoon on a shift which commenced at 4:30 P.M. and ended at 1 A.M. the following day. She was the operator of a magnet machine, and as a part of her duties she had to fill a bucket with magnets, for use on her machine. While a three-pound lard bucket was used, it is inferable that such bucket full of magnets was quite heavy, though the record does not, with any certainty, disclose even the approximate weight thereof. In beneding over and picking up a bucketful of magnets, claimant was struck with a sharp pain in her back which ran down her right leg and, as a result, her leg become considerably swollen before the end of her shift.

Claimant's immediate supervisor at the time was Rayford Burdette. At some unspecified time during the earlier part of claimant's shift on the particular date, Burdette came by and asked claimant if she would work on Saturday, which was not a regular work day, and she told him that she would. The testimony does not reflect the precise hour of either this conversation or the accident, but, in any event, Burdette came back by sometime between 10 and 11 o'clock in the evening, such visit being at a time sufficiently subsequent to the time of the accident that claimant's leg had in the meantime swollen therefrom. On this visit of Burdette, claimant not only told him in some detail about the accident, but undid her shoe and showed him the visible effects of the accident, the extent to which her leg had swollen. A discussion ensured between the two as to whether claimant would be able, in view of her injury, to work the following day as previously promised. Burdette insisted that she come to work on Saturday; assured her that she would be all right, and that in view of her injury he would keep her on a sitting down job.

Claimant worked until the end of her shift that night and went home, but had a lot of pain in her back and leg and had to elevate her legs to be able to sleep at all. The following morning she had to have the help of her husband to get out of bed and was not able to report to work that afternoon as promised. She phoned to let her employer know that she would not be there as promised. She did not testify as to whom she talked when she called or precisely what she said, but it is at least a logical inference, when her testimony is viewed in its entire context, that she did give the reason for not coming to work when she phoned. Even if she did not give the reason in this telephone conversation, the supervisor, Burdette, in view of his two conversations with her on the previous evening, had every reason to know or believe that claimant's absence was probably due to her accident and injury.

Evidence adduced on behalf of the employer shows that under the foregoing facts and circumstances, Burdette was charged by his employer with the duty to send claimant to first aid and make a report of the accident. He did neither. Claimant herself did not report to first aid but the employer's Director of Industrial Relations testified that employees were permitted to report accidents to their immediate supervisors.

While claimant continued to have pain, she worked the following week, which was the week before Christmas, and then after time off for the holidays, worked Wednesday, Thursday and Friday, and was 'furloughed' on December 28th along with twenty-seven other employees because of a cut back in production. She was advised by the employer to promptly apply for unemployment compensation and that she would be called back in six or seven weeks. Claimant did not make a written report of her injury and did not seek any medical attention until the latter part of January 1963. Claimant testified, without objection, that three different doctors concurred in the diagnosis that she was suffering from a reptured disk, and the employer does not contest this diagnosis.

Evidence adduced at the second hearing would indicate that she first consulted a physician on January 25, 1963, and was hospitalized on January 27. In any event, she was hospitalized for two weeks and was confined to bed at home for some weeks thereafter.

Claimant continued to have difficulty but succeeded in obtaining employment about the middle of July 1963, as a counter clerk for a dry cleaning establishment, where she worked until January 1964, when she had to quit the job because of pain in her back and leg and the dragging of her leg. From January 1964 until the date of the first hearing, on March 16, 1964, she was unemployed. Claimant from time to time drew unemployment compensation benefits when she was not employed and not confined to the hospital or in her home.

In August 1963, claimant's present counsel asked for a hearing, using Form 25, as prescribed by the Commission, and the employee was, in due course, notified of the filing of such request. The record reflects that at some undisclosed time prior thereto claimant had employed another attorney, but the record does not disclose just what resulted from such employment, except that the employer called the claimant and wanted her to return to work, but she declined because of her injury and disability. The foregoing facts, except where otherwise noted, are taken from the record of the initial hearing. On the second hearing claimant offered no additional testimony, and the testimony adduced by the employer was, for the most part, not germane to the issues encompassed within the remand. The facts hereinabove related as to the actual knowledge on the part of claimant's supervisor, as well as his duty and responsibility, are virtually undisputed. On these facts disclosed by the evidence, the Commission has found as a fact that there was reasonable excuse for the claimant not having given written notice within thirty days, and that the employer could not claim prejudice because of such failure since it had full notice in fact through its supervisor. It is our view that both of these findings are abundantly supported by the evidence.

Had written notice been given, it would have been required to state in ordinary language only, 'the name and address of the employee and the time, place, nature and cause of the accident and of the resulting injury.' Code Sec. 72--302. The consequences of the injury here later turned out to be more serious than was contemplated by either the claimant or the employer, but the evidence abundantly shows that within the thirty day period with which we are concerned, the employer had quite as full knowledge of the facts which would have been disclosed by a written notice, immediately given, as did the claimant herself.

Prior opinions of this court abundantly support the conclusion reached by the Commission that an employer cannot claim prejudice where its knowledge of the pertinent facts was as full as would have been disclosed by the written notice had such been given. Strawhorn v. J. A. Chapman Const. Co., 202 S.C. 43, 24 S.E.2d 116; Teigue v. Appleton Co., 221 S.C. 52, 68 S.E.2d 878; Raley v. City of Camden, 222 S.C. 303, 72 S.E.2d 572; Ricker v. Village Management Corp., 231 S.C. 47, 97 S.E.2d 83.

It might not be amiss to point out that Sec. 72--302 of the Code contains, inter alia, the following language:

'No defect or inaccuracy in the notice shall be a bar to compensation unless the employer has proved that its interest was prejudiced thereby and then only to the extent of such prejudice.'

Under a liberal construction of Sec. 72--301 and Sec. 72--302, this court has applied the quoted language to cases such as this where there was no written notice, but knowledge of the pertinent facts on the part of the employer, and held that the burden was upon the employer to prove prejudice. Strawhorn v. J. A. Chapman Const. Co., 202 S.C. 43, 24 S.E.2d 116.

There is nothing in the evidence even tending to prove that the employer was, in fact, prejudiced by the failure to give, within thirty days, the statutory...