The Georgia Court of Appeals recently addressed whether an employee should be denied benefits under Georgia's Workers' Compensation Act for failing to satisfy the notice requirement under O.C.G.A. § 34-9-80 in McAdoo v. MARTA, 755 S.E. 2d 278, decided March 11, 2014. O.C.G.A. § 34-9-80 requires that an injured employee, or his or her representative, shall immediately on the occurrence of any accident or as soon thereafter as practicable, give or cause to be given a notice of the accident to the employer, its agent, representative, foreman, or the immediate supervisor of the injured employee.  No compensation will be payable unless such notice, either oral or written, is given within thirty (30) days after the occurrence of an accident, or within thirty (30) days after death resulting from an accident, 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, its agent, representative, foreman or immediate supervisor of the injured employee had knowledge of the accident, or unless a reasonable excuse is made to the satisfaction of the State Board of Workers' Compensation for not giving such notice and it is reasonably proven to the satisfaction of the Board that the employer had not been prejudiced thereby.

Over the course of Mr. McAdoo's twenty-two year employment with MARTA as a bus driver, he had gone out of work multiple times due to diabetes complications.  He began to experience low back pain during May of 2010, which resulted in symptoms in his right lower extremity. His supervisor became aware he was compensating for his symptoms by utilizing his left foot to operate the brakes on his bus and instructed him to obtain treatment, telling the employee that it was not safe to drive with his left foot.  The employee initially sought care with his family physician, who then referred him to a neurologist.  Both physicians filled out disability forms indicating the employee's symptoms were not work-related.  The employee went out of work on October 17, 2010.  During December of 2010, the employee indicated his problems were work-related on his application for short term disability benefits which he submitted to the employer.  Arguably, the injury date in this case was October 17, 2010, when the employee began losing time from work and presumably began losing wages.

The Administrative Law Judge and the State Board's Appellate Division found the claim compensable and determined the employee satisfied the notice requirement by way of the December, 2010 application for short-term disability benefits which was submitted to the employer.  Moreover, the Board held that even if it could be said the employee had not provided sufficient or timely notice, he was reasonably excused from giving notice since he did not receive an affirmative diagnosis that the radiating pain in his right leg was caused by an injury to his lower back until April of 2011, when he saw a third physician, and the employer was not prejudiced thereby.

The employer appealed to the Superior Court, which found the employee went out of work in connection with his diabetes and that neither the employer nor the employee could have presumed differently.  The Superior Court reversed the ruling of the State Board, finding the employee's notice that he was leaving work for diabetes-related reasons was insufficient to satisfy the notice requirement under the Act since such notice would not prompt the employer to investigate the circumstances surrounding the cessation from work.

The Georgia Court of Appeals reversed the ruling of the Superior Court, noting the State Board had correctly concluded the required notice need not show the injury arose out of the employment.  With regard to the adequacy of notice required by the Act, it noted the Supreme Court of Georgia has held "that a liberal construction must be given to effectuate the humane purposes for which the Workers' Compensation Act was enacted."  The required notice need not be given with a view to claiming compensation.  Per the Court of Appeals, "notice" is sufficient if it puts the employer on notice of an injury so that the employer may make an investigation if it sees fit to do so.  No doubt due in large part to the "Any Evidence Rule," the Court of Appeals held the Board had correctly concluded the employee provided MARTA with timely notice because MARTA was aware that he was unable to work because of his inability to use his right leg and, therefore, MARTA was on notice of an injury such that it could have made an investigation at the time the employee ceased working if it had chosen to do so. 

The Court of Appeals also held that even if the employee failed to give timely notice, his claim was not barred because he provided the Board with a reasonable excuse for not having done so, and he proved MARTA was not prejudiced thereby.  This finding was based on the employee not receiving a definitive diagnosis that the radiating pain in his right leg was caused by an injury to his lower back until April of 2011. Pretermitting whether the employee's notice to MARTA was sufficient and timely, there was evidence in the record to support the Board's conclusion that the employee demonstrated a reasonable excuse for not giving timely notice and that MARTA was not prejudiced thereby.

As a practical matter, an employer should notify its Workers' Compensation carrier or, if self-insured, its servicing agent, immediately upon learning that an employee has any type of injury.  Do not assume the injury will not subject you to Workers' Compensation liability if the employee is initially vague about the cause of his or her symptoms or does not affirmatively state his or her injury is work-related.  Be proactive and ask the employee if the condition which is causing the employee to lose time from work or to incur medical expenses is related to his or her job.  If the employee responds negatively, have the employee sign something to that effect in writing.  The Workers' Compensation carrier can file a timely WC-1 First Report of Injury and controvert the claim as one not arising out of or in the course of employment.  If you are unsure of what direction to take, contact an attorney with experience in representing employers in workers' compensation matters for additional guidance.

John M. Stephenson has since 1984 represented a variety of employers, both large and small, in defending against Workers' Compensation claims.