Mize v. Sangamo Electric Co.

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 determing 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 prej*254udice 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 bending 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 became considerably swollen before the end of her shift.

Claimant’s immediate supervisor at the time was Ray-ford 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 subse*255quent 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 ensued 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 o.f 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 o,r 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 *256then 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 projmptly 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 ruptured 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

*257The 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 o,n 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 thro,ugh 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.” Co.de 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.

*258It 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 pro,ved 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 qf 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 written notice.

The challenge by the employer-carrier of the finding that a claim was filed with the Commission within one year raises an issues of law, rather than of fact. It is undisputed that claimant’s attorney filed with the Commission a request for a hearing on or about August 30, 1963, using Form 25 required by Rule No,. 1 of the Industrial Commission. The employer’s contention is simply that the contents of this form were insufficient to constitute a claim within the purview of the statute. It does not appear from the record that any other form is either furnished or required under the rules of the Commission for filing the claim required by statute. We think it necessary to pass in detail upon the contents of the form used or precisely what a claim within the purview of the statute should contain. Suffice it to, say that we are confident that the form filed here on behalf of the claimant was quite sufficient, under the circumstances, to serve the purpose of the statute.

Notice of filing was promptly sent by the Commission to the employer-carrier. Correspondence followed between the carrier and claimant’s counsel, in *259which counsel expressed a willingness to discuss the claim in detail with the adjuster of the carrier. A hearing was set for September 30, 1963, but the employer-carrier requested a continuance for purpose of further investigating the claim, which request was granted, and as a result of this request, the hearing was not held until March 16, 1964. In the meantime, the employer-carrier, on October 29, 1963, denied all liability. Not until the application for a review by the full Commission, following the hearing on March 16, 1964, did the employer-carrier ever raise any question as to the sufficiency of the form filed with the Commission to constitute a claim within the purview of the statute. Had the hearing been held on September 30, 1963, instead of being postponed at the request of employer’s carrier, and any question as to the sufficiency of the claim timely raised, the claimant would still have had more than two months remaining in which to file with the Commission a claim meeting any objections raised by the employer-carrier. Under these circumstances, the employer-carrier should not now be heard to complain, even if the form filed on behalf of the claimant was insufficient in any particular to constitute a claim within the purview of the statute.

On the first appeal, it was contended that there was no competent evidence of any disability causally connected with the accident and injury sustained by the employee, which contention was passed upon by this court only by implication, the opinion not having dealt expressly therewith. We use the term “implication” because, patently, if there was no competent evidence of causally connected disability, a remand for specific findings on the other issues would have been pointless. The issue is, however, again presented on this appeal and since we did not do so in the first instance, we now pass expressly thereupon. Only the evidence adduced upon the first hearing is properly considered in the determination of this issue as, on remand, such issue was no longer before the Commission.

*260The diagnosis of a ruptured disk is not contested. Except for the diagnosis which claimant herself testified to on the first hearing, without objection, no medical evidence was offered tending to either prove or disprove causal connection between the injury sustained and the ruptured disk the claimant was later found to have. The question is simply whether the lay testimony of the claimant herself, unsupported by any medical evidence, other than the admitted diagnosis, is sufficient to support a finding of causal connection between the initial accident and injury and the disability suffered by the claimant. Circumstantial evidence and lay testimony can be sufficient to support a finding of causal connection in a Workmen’s Compensation case. Such evidence need not reach such a degree of certainty as to exclude every reasonable or possible conclusion other than that reached by the Commission. It is sufficient if the facts and circumstances proved give rise to a reasonable inference that there was a causal connection between the disability and the prior injury. Whether the absence of medical testimony is conclusive on the question of causation depends upon the particular facts and circumstances of the case. See Grice v. Dickerson, Inc., 241 S. C. 225, 127 S. E. (2d) 722, and the cases therein cited.

None of our prior decisions is precisely in point with the facts of this case, but when all of the facts and circumstances disclosed by the evidence are considered, we think that they are sufficient to give rise to a reasonable inference of causal connection between the claimant’s accident and injury and the disability proved to exist. Research on our part discloses two cases from other jurisdictions involving ruptured disks in which awards were sustained and where, as here, a finding of causal connection between an accidental injury and a ruptured disk was unsupported by medical evidence. Smith v. Terminal Transfer Co. et al., 372 S. W. (2d) 659 (Kansas City, Mo., Ct. App. 1963) ; Di Fiore v. United States Rubber Co., 78 R. I. 124, 79 A. (2d) 925 (1951). No decision contrary to those cited has come to our attention.

*261The initial award of the hearing Commissioner in this case, dated June 15, 1964, provided for payment of compensation at the rate of $30.00 per week from the date of the accident until the date of the hearing, March 16, 1964, with the employer-carrier to take credit for the weeks the claimant was- suitably employed and for the amounts drawn by her as unemployment compensation benefits during the time she was not employed. The award further provided that compensation at the rate of $30.00 per week should be paid from the date of the hearing until a determination by the Commission that maximum healing had been reached, o,r until otherwise terminated in accordance with the provisions of law. The hearing following remand was held on December 14, 1965, and the award of the full Commission was filed on June 21, 1966, and, as above pointed out, in addition to making the specific findings of fact as directed, it reaffirmed the earlier award, including the provision for the payment of compensation beyond the date of the initial hearing. The employer-carrier now contends that it was incumbent upon the claimant to prove at the December 1965 hearing that she was then still disabled and that in the absence of such pro,of on her part, the award cannot stand. Assuming that any exception on the part of the employer-carrier properly raises this question, which is doubtful, it is clear that the issue was not raised below and cannot be asserted for the first time o-n appeal to this court.

Finally, the employer-carrier asserts error on the part of the circuit court as to a provision in the order dealing with the payment of compensation pending appeal. The brief on behalf of claimant asserts that the order has not been complied with, which assertion is not challenged. Any issue thereabout has now become moot, particularly in view of our disposition of the other questions involved. The exceptions of the appellants are without merit and the judgment of the lower court is, accordingly,

Affirmed.

Lewis and Braisford, JJ., concur. *262Moss, C. J., and Littlejohn, J., dissent.