Opinion
43153.
ARGUED OCTOBER 3, 1967.
DECIDED OCTOBER 6, 1967.
Workmen's compensation. Fulton Superior Court. Before Judge Dyer.
Harrison, Martin Childs, John S. Harrison, for appellant.
Smith, Cohen, Ringel, Kohler, Martin Lowe, Williston C. White, for appellees.
1. Even though it appears that the claimant suffered a deteriorating condition resulting from his continuing to work after an accident arising out of and in the course of employment there must be a finding of notice to the employer, or of knowledge obviating the necessity of notice, as provided in Code § 114-303. Neither notice nor knowledge is to be presumed, but must be proven.
2. Where there is an award, based on partial disability, of a percentage of the difference in claimant's earnings before and after the accident, there must be some finding as to what the earnings were so that an intelligent calculation can be made of the compensation to be paid.
ARGUED OCTOBER 3, 1967 — DECIDED OCTOBER 6, 1967.
This is the second appearance of this case before this court. See Mallory v. American Cas. Co., 114 Ga. App. 641 ( 152 S.E.2d 592). Upon a remand of the case to the board new findings were made to the effect that: (1) the claimant sustained an injury and accident arising out of and in the course of his employment June 12, 1963; (2) the claimant continued working and suffered no compensable loss of time until May 26, 1964, when his condition became aggravated to the extent that he was no longer able to perform his work; (3) the claimant was totally disabled from May 26, 1964, until some time prior to October 22, 1964 — the evidence being insufficient to enable the board to determine the date of change — when his condition changed from total to partial disability.
The board also found that the claimant's aggravated condition resulting in inability to work when he quit on May 26, 1964, was tantamount to the suffering of a "new accident" on that date, and that compensation should be paid from that time.
There was no finding as to whether the employer had knowledge or notice of the accidental injury of June 12, 1963, or as to whether it had knowledge or notice of the aggravation which led up to his total disability on May 26, 1964.
Although there was a finding that claimant's condition changed from total to partial disability prior to October 22, 1964, and an award of compensation for total disability from May 26, 1964 to October 22, 1964, and commencing on October 22, 1964, for partial disability amounting to 60 percent of the difference in claimant's earnings before and after the "accident," not to exceed $30 per week for the statutory period, there was no finding as to what claimant's earnings had been either before or after the "accident," i.e., before or after May 26, 1964.
The employer appealed to Fulton Superior Court, where, after argument and consideration of the matter, an order was entered again remanding the case to the board with direction that it make findings as to the matter of notice and as to the claimant's earnings. From that order claimant appeals.
There may have been some misunderstanding as to the meaning or import of our decision on the former appearance because of some language in the body of the decision which indicates that we construed the evidence to authorize a finding that the claimant suffered a "new accident" when he reached the point of being unable to continue with his work. But the holding of the case was that the evidence was sufficient to authorize a finding that the gradual worsening of the claimant's condition was at least partly attributable to his physical activity in the continuing of his work after the injury of June 12, 1963, and that under these circumstances (if the board finds this to be the case) the statute of limitation would begin to run on the date when the employee was for that reason forced to cease work.
To state it another way, we held the situation to be one coming within the principles applied in Noles v. Aragon Mills, 114 Ga. App. 130 ( 150 S.E.2d 305) and in Employers Mut. Liab. Ins. Co. v. Shipman, 108 Ga. App. 184 ( 132 S.E.2d 568).
Upon remand the board has found that claimant did suffer an injury arising out of and in the course of employment which, as of May 26, 1964, was totally disabling. But since there is no finding as to whether the employer had knowledge or notice, within the requirements of Code § 114-303, we agree with the judge of the superior court that the matter should be remanded for further findings and award in the light thereof.
Judgment affirmed. Felton, C. J., and Hall, J., concur.