U.S. Asbestos v. Hammock

• Decision Date: 22 October 1976
• Docket Number: No. 1,No. 52473,52473,1
• Citation: 140 Ga.App. 378,231 S.E.2d 792
• Parties: U.S. ASBESTOS et al. v. Morris HAMMOCK
• Court: Georgia Court of Appeals

Page 792

231 S.E.2d 792

140 Ga.App. 378

U.S. ASBESTOS et al. v. Morris HAMMOCK.

No. 52473.

Court of Appeals of Georgia, Division No. 1.

Oct. 22, 1976.

Rehearing Denied Nov. 10, 1976.

Hopkins, Gresham & Whitley, H. Lowell Hopkins, Atlanta, for appellants.

Smith, Cohen, Ringel, Kohler & Martin, Williston C. White, Atlanta, for appellee.

STOLZ, Judge.

The appellants, an employer and its insurer, appeal from an award by the Board of Workmen's Compensation in favor of the appellee-claimant. The claim upon which the award is based was filed in 1966 based upon an alleged accident in 1966. After many years of litigation, the board made this award based upon an accident in 1970 which was manifested as an aggravation of the earlier condition. The Superior Court of Fulton County affirmed the award, and from that decision this appeal was made.

In 1958 the appellee entered the employ of the appellant-employer. For eight years he worked in the dusty environment peculiar to the asbestos industry, leaving his work there in 1966 when the employees of the appellant-employer went on strike. A claim of total disability was filed on October 28, 1966, based upon an 'accident,' within the meaning of Code § 114-303, causing disease to the appellee's lungs.

The board found that the appellee's pre-existing lung condition was so aggravated by his employment for the appellant-employer that, as of March 27, 1970, the claimant became unable to work. Thus an 'accident' occurred on March 27, 1970. The board's finding as to the date of the accident was based on a decision on May 27, 1970, by Dr. James Kaufmann, that the appellee was unable at that date to perform any type of work requiring physical exertion.

1. The appellants contend that the board erred in finding an accident date in 1970, several years after the appellee last worked for the appellant-employer. Code § 114-102 (as amended, Ga.L.1973, pp. 232, 234) specifies that a compensable accident must 'aris(e) out of and in the course of the employment.' It is the appellants' contention that, for an accident to arise 'in the course of the employment' within the meaning of the Act, it must occur within the period of employment. See Thornton v. Hartford Acc. etc., Co., 198 Ga. 786, 32 S.E.2d 816. However, an accident arises 'in the course of the employment' if it is an aggravation of an injury which took place in the course of employment or if it is the end product of a force or cause set in motion in the course of employment. Employers Mut. Liab. Ins. Co. v. Videtto, 124 Ga.App. 458(1), 184 S.E.2d 210; Bullington v. Aetna Cas. etc. Co., 122 Ga.App. 842, 178 S.E.2d 901, rev'd on other grounds, 227 Ga. 485, 181 S.E.2d 495; Commissioners of Roads, etc., of Fulton County v. Dowis, 107 Ga.App. 647(2), 131 S.E.2d 144; Springfield Ins. Co. v. Harris, 106 Ga.App. 422(1), 126 S.E.2d 920; Maddox v. Buice Transfer etc. Co. 81 Ga.App. 503, 59 S.E.2d 329; Thornton v. Chamberlain Manufacturing Corp., 62 N.J. 235, 300 A.2d 146. According to Professor Larson, the Act does not require the accident to 'occur,' 'be manifested,' or 'be consummated' in the course of employment. It merely says that the accident must be one 'arising . . . in the course of employment.' "Arising' connotes origin, not completion or manifestation.' 1 Larson, The Law of Workmen's Compensation § 29.22. This statute must be liberally construed in order that its humane objectives may be effectuated. Lumbermen's Mut. Cas. Co. v. Griggs, 190 Ga. 277, 287, 9 S.E.2d 84.

Thus, in the instant case the dusty conditions at the appellant-employer's plant caused or greatly contributed to a progressively deteriorating physical condition, which manifested itself in a state of total disability in 1970, and the appellee's condition in 1970 was one 'arising . . . in the course of the employment.' It was an aggravation of an injury which was caused within the physical and temporal confines of the appellee's employment for the appellant-employer.

This case is distinguished from House v. Echota Cotton Mills, Inc., 129 Ga.App. 350 199 S.E.2d 585, because in House, compensation was denied due to failure to file a claim within the statutory period. In the instant case, unlike House, a claim was filed within a year of the appellee's last employment with the appellant-employer. See Commercial Union Cos. v. Byrd, 133 Ga.App. 878, 212 S.E.2d 446.

2. The appellants next contend that error was committed in finding an aggravated condition existent in 1970 when no claim was filed within a year following that date pursuant to Code § 114-305. However, the board obtained jurisdiction of the appellee's case upon the filing of his claim in 1966, Indemnity Ins. Co. v. O'Neal, 104 Ga.App. 305, 121 S.E.2d 689, and the board will retain jurisdiction until there is a withdrawal, dismissal, or full compliance with an award. U.S. Cas. Co. v. Smith, 162 Ga. 130, 133 S.E. 851; Metropolitan Gas. Ins. Co. v. Maloney, 56 Ga.App. 74, 192 S.E. 320.

3. The appellants next claim that the appellee was improperly awarded benefits due to the fact that the appellants were not given notice of the 1970 aggravated 'accident,' as required by Code § 114-303. The record shows, however, that at the date on which the 1970 aggravation occurred, the appellants' attotney took part in the deposition upon which the board based its finding of the occurrence of the aggravated accident. Therefore, the appellants' attorney had actual knowledge of the 'accident.' Code § 114-303 specifies that there is sufficient notice if 'the employer, his agent, representative, or foreman . . . had knowledge of the accident.'

At the very least, we hold as a matter of law that the facts which arose through Dr. Kaufmann's testimony upon deposition were sufficient to 'put the employer on notice of the injury so that he may make an investigation if he sees fit to do so.' Railway Express Agency v. Harper, 70 Ga.App. 795(1), 29 S.E.2d 434. This standard has traditionally constituted sufficient notice under Code § 114-303.

4. One of the appellants' enumerations of error is predicated upon their allegation that the deposition of Dr. Dan Henry was never admitted in evidence. However, we would call the appellants' attention to page 411 of the transcript, at which point the deposition in question was admitted in evidence.

5. The appellants contend that the board erred in finding that an aggravation of the appellee's condition occurred in 1970, without giving the appellees an opportunity to be heard at a hearing or to present any evidence as to the physical condition of the appellee in 1970. The record, however, reflects that a medical board hearing was held in 1972, the appellants being free at that time to introduce evidence. Furthermore, the appellants at no time after 1970 made a motion for presentation of additional evidence before the full board.

6. The appellants also contend that the board erred in awarding weekly compensation benefits...