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FEDERATED MUTUAL HARDWARE INSURANCE COMPANY et al. v. ELLIOTT.
34624.
Workmen's compensation. Before Judge Moore. Fulton Superior Court. February 13, 1953.
TOWNSEND, J.
1. The finding here, that the failure to give notice to the employer within 30 days of the accident or death, as provided by Code 114-303, comes within an exception to the statute, is supported by some evidence, and, no fraud appearing, is conclusive.
2. The crucial test to be applied in determining whether the relationship of the parties under a contract for the performance of labor is that of master and servant, or that of employer and independent contractor, being the right of the employer under the contract to control the time and manner of executing the work, as distinguished from the right merely to require certain results in conformity to the contract, the workmen's compensation director here was authorized by the evidence to find that the relationship of master and servant existed.
3. Where, as here, there is evidence that the employee suffered from a coronary occlusion while engaged in the regular course of his employment, and where the evidence authorizes the finding that the immediate precipitating cause of injury was overexertion within the regular course of employment, which exertion was too great for the man undertaking the activity in his existing physical condition, the injury is an accident and is compensable; and the fact that total incapacity did not result until after the day's work was over will not alter the situation.
4. It not appearing that this employee had worked at the employment in which he was engaged at the time of the injury "during substantially the whole of 13 weeks immediately preceding the injury," and it not appearing that a similar employee in the same employment had worked "substantially the whole of such 13 weeks," the Director of the Board of Workmen's Compensation properly applied subsection 3 of Code (Ann. Supp.) 114-402, which provides as follows: "If either of the foregoing methods cannot reasonably and fairly be applied, the full time weekly wage of the injured employee shall be used." Under this rule the finding that the average weekly wages of the deceased were in excess of $48 is authorized.
Mrs. Lillie Belle Elliott filed a claim for death benefits under the Workmen's Compensation Law against Healey Realty & Improvement Corporation, employer of her deceased husband, W. J. Elliott, and its insurance carrier, Federated Mutual Implement & Hardware Insurance Company. Upon the hearing before a single director, the evidence, in its light most favorable to the award, was substantially as follows: that Elliott was a plasterer by trade and worked from a "pool" or whenever called as his services were needed; that he had been previously employed on jobs by the employer; that on November 14, 1951, he was called to engage in some plastering work; that a permanent employee of the corporation was assigned as his helper; that he was paid an hourly wage of $2.50, and on that day worked nine and one-half hours, although his regular working day was eight hours, five and one-half days per week; that the employer reserved the right to tell him what to do and to supervise the work; that he was engaged in strenuous work during the day, involving climbing up and down a six-foot step ladder with a mortar board loaded with plaster and trowel; that about two or three o'clock in the afternoon his fellow employee noticed him indicating the left side of his chest several times and complaining of pain, and that he still complained when he went home; that the following morning the employer's supervisor telephoned and was told he was sick, and was on the same day informed by Elliott's helper that he was sick when he left work; that he remained in bed attended by a physician from that time until December 15, 1951, when he died; that the physician who treated him during this time had also died prior to the hearing, and that the death certificate showed as the cause of death bronchopneumonia with cardiac failure as the underlying cause. The only medical expert testifying gave as his opinion, based on hypothetical questions, that the employee died of terminal pneumonia; that he suffered a coronary occlusion on November 14 which resulted in "heart failure" attended by the pneumonia; and that the exertion undergone by the employee in plastering, climbing, and carrying the heavy mortar "hawk" precipitated a coronary occlusion which was the primary cause of his death.
The award of the director in favor of the claimant was affirmed by the full board and, on appeal, by the Judge of the Superior Court of Fulton County. The exception here is to the latter judgment.
1. Code 114-303 provides in substance that every injured employee shall within thirty days give to his employer notice of the accident or no compensation shall be payable, "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 Department of Industrial Relations for not giving such notice, and it is reasonably proved to the satisfaction of the Department that the employer had not been prejudiced thereby." The purpose of this provision is undoubtedly to prevent the belated filing of claims which might work a fraud or injustice upon the employer. The employer here received no formal notice until February 6, 1952, which was more than 30 days after Elliott's death on December 15, 1951, but the employer did have notice that Elliott was "sick" on the job, and was too ill the following day to return to work. Whether this in itself is sufficient to constitute notice of an "accident" under the compensation law, it is unnecessary to decide, but it is 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. As stated in James v. Fite, 38 Ga. App. 759 (2) (145 S. E. 536): "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 Industrial Commission, and its finding upon such question of fact, if supported by the evidence, is, in the absence of fraud, conclusive." See also Railway Express Agency v. Harper, 70 Ga. App. 795 (29 S. E. 2d 434). Whether or not the delay in giving notice is excusable is 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 Code 114-303, supra. The hearing director found that the acute illness of the deceased was such an extenuating circumstance, and under all the circumstances of this case we believe that such finding was in the interests of justice and within the discretion of the board.
2. The defendant further contends that the award was without evidence to support it, in that a finding was demanded that Elliott was not an employee but was an independent contractor, citing Bentley v. Jones, 48 Ga. App. 587 (173 S. E. 737), to the effect that the right to supervise the work to see that desired results are obtained is compatible with the relationship of independent contractors; and Richards v. Marco Realty Co., 57 Ga. App. 242 (194 S. E. 880), on the proposition that the specialization required in the trade is an aspect to be considered in determining whether the relationship is that of servant or contractor. Specialization alone is hardly an infallible test--is a plasterer more of a specialist than a carpenter or brickmason, and would any inference arise from such an occupation that the party was not the employee of another? Code 66-101 provides that, where wages are payable at a stipulated period this raises the presumption that the hiring is for such period. Here the wages were payable on an hourly base. Code 105-502 (5) provides that the relation of master and servant may be created by the employer's retaining the night to direct or control the time and manner of executing the work; here, the supervisor testified that he had the right to tell the men what to do at any time, to supervise the work and the manner in which they did it, and that all materials were furnished by the employer. In Fidelity & Casualty Co. of New York v. Clements, 53 Ga. App. 622 (1) (186 S. E. 764) it is held: "The crucial test to be applied . . . in determining whether the relationship of the parties under a contract for performance of labor is that of master and servant, or that of employer and independent contractor, lies in whether the contract gives, or the employer assumes, the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract." The director properly found that the relationship here was that of master and servant.
4. Exception is also made to the director's finding that the average weekly wages of the deceased employee were in excess of $48 per week and in computing compensation accordingly. It appeared from the evidence that the deceased worked as he obtained employment; that he averaged less than one day per month working for the defendant, but did many other jobs; that he worked nine hours on the day he was stricken; and that employees of the defendant regularly worked eight hours per day, five and one-half days per week. Code (Ann. Supp.) 114-402 (3), the only method of computation here, provides that the full-time weekly wage of the injured employee shall be used in computing the amount of the award. In New Amsterdam Casualty Co. v. Brown, 81 Ga. App. 790 (2 b) (60 S. E. 2d 245), it was held as follows: "Where subsections (1) and (2) are inapplicable in arriving at the average weekly wage under the provisions of Code (Ann. Supp.) 114-402, the director has no alternative but to apply the provisions of subsection (3) thereof so as to use the full-time weekly wage of the injured employee as his average weekly wage. Where wages are paid on an hourly basis, the full-time weekly wage is the wage per hour multiplied by the number of hours shown by the evidence to constitute a full-time work week for such employee under his contract of employment." The director was authorized, under this rule, to find that the employee's average weekly wage, at $2.50 per hour, was in excess of $48 per week. As a matter of fact, such employee would have earned this amount had he only worked two and a half days per week, at this hourly rate. There was no error in the computation of the award.
The judge of the superior court did not err in affirming the award of the Board of Workmen's Compensation.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.
Joe Salem, contra.
Marvin G. Russell, Turner Paschal, for plaintiffs in error.
DECIDED MAY 14, 1953 -- REHEARING DENIED MAY 27, 1953.
Saturday May 23 04:08 EDT


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