State v. Mitchell

339 S.E.2d 384, 177 Ga. App. 333, 1985 Ga. App. LEXIS 2580
CourtCourt of Appeals of Georgia
DecidedDecember 5, 1985
Docket70936, 71066
StatusPublished
Cited by12 cases

This text of 339 S.E.2d 384 (State v. Mitchell) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Mitchell, 339 S.E.2d 384, 177 Ga. App. 333, 1985 Ga. App. LEXIS 2580 (Ga. Ct. App. 1985).

Opinions

Pope, Judge.

Dr. Mary L. Mitchell was employed by the Georgia Department of Education (DOE) as the Director of Teacher Education. She stayed in Atlanta where she worked during the week and returned to her home in Macon on weekends. Her duties included traveling the southeast to lecture at colleges on effective teaching techniques. On Thursday, October 20,1983 Mitchell drove to the residence of another DOE employee, parked her personal vehicle and proceeded in a state vehicle for a tour of colleges in north Georgia and Tennessee. After returning the following afternoon, Mitchell switched to her personal car and proceeded south on 1-285 where her car was struck from behind by another vehicle. The route being taken led both to Mitchell’s home in Macon and to her office at the Twin Towers. She stated that she was going to her office to leave records (which were required for security to be left there over the weekend) and then proceed home. The injury suffered apparently affected her speech and memory. She utilized all available sick and annual leave and was obliged to cease her employment on January 17,1984. DOE filed a first report of injury on February 15, 1984 and a notice to controvert payment on February 29.

The ALJ entered an award for Mitchell. The full board affirmed the award with additional findings of fact and also imposed a 15% penalty and attorney fees for the failure to timely file the notice to controvert under OCGA § 34-9-221 (d) and further failure to begin payments of income benefits within 14 days pursuant to OCGA § 34-9-221 (e). The superior court affirmed the board and this court granted an application for discretionary review filed by DOE.

Because we extended the scope of our original grant from solely whether there was any evidence to sustain the assessment of attorney fees to a consideration of the entire application, there are two appeals: Case No. 70936 involving the imposition of a penalty and attorney fees, and Case No. 71066 involving whether Mitchell gave notice to DOE within the purview of OCGA § 34-9-80. Two notices of appeal are necessary when we broaden the scope of the grant of the discretionary (or for that matter, interlocutory) appeal because the filing of [334]*334the notice in the lower court affects the time period in which the enumeration of errors must be filed in this court. Court of Appeals Rule 27 (a). For simplicity, however, we will preserve the single nature of the appeal. It will then be sufficient simply to supplement the first enumeration of errors, within the time measured from the filing of the second notice below and the docketing thereof here, and file supplemental briefs and a supplemental record if necessary, as are liberally provided for. OCGA §§ 5-6-41 (f) and 5-6-58 (d); Court of Appeals Rule 12.

1. In Case No. 71066 DOE contends that it did not have notice of the accident since Mitchell was in her own vehicle on a route which would take her home; that she did not claim travel expenses for that portion of her time; that she informed her own doctor the injury did not take place on the job and never notified her supervisor that she was injured on the job.

The evidence showed DOE was aware of Mitchell’s injury as it required her to take all her sick and annual leave allowances. There was also evidence that DOE knew that she was returning from an overnight trip on DOE’s behalf when she was injured. Further, her supervisor related that the records Mitchell had with her at the time she was injured should indeed have been returned to the office for safekeeping over the weekend.

The question as to adequacy of notice of the accident required by OCGA § 34-9-80 was laid to rest in Schwartz v. Greenbaum, 236 Ga. 476 (1) (224 SE2d 38) (1976), which renounced a prior Supreme Court decision to the contrary (Royal Indem. Co. v. Coulter, 213 Ga. 277 (98 SE2d 899) (1957)) and held: “In Lumbermen’s Mut. Cas. Co. v. Griggs, 190 Ga. 277, 287 (9 SE2d 84) (1940) this court said that a liberal construction must be given to effectuate the humane purposes for which the Workmen’s Compensation Act was enacted. Code § 114-303 [now OCGA § 34-9-80] does not require that notice of an injury or accident must show that it ‘arose out of and in the course of the employment.’ Therefore, this court will no longer follow the ruling set out in the Coulter decision. This court finds that the better rule is stated in Davison-Paxon Co. v. Ford, 88 Ga. App. 890, 892 (78 SE2d. 257) (1953) which holds: ‘The required notice need not be given with a view to claiming compensation, and is sufficient if it puts the employer on notice of the injury so that it may make an investigation if it sees fit to do so. Railway Express Agency v. Harper, 70 Ga. App. 795 (29 SE2d 434).’ ” Schwartz v. Greenbaum, supra at 477. DOE’s position here is in effect a reargument of the Coulter position which is now discredited. See Jones v. Fieldcrest Mills, 162 Ga. App. 848 (1) (292 SE2d 523) (1982).

The full board found: “The employer received notice of the accident and injury to claimant shortly after it occurred, and was aware [335]*335of the fact that claimant was returning from a trip on behalf of the employer at that time. This was ample notice to the employer to make a further investigation into the circumstances surrounding the accident if it so chose.” Since there was some evidence to sustain the board’s finding, and it applied the correct law, we apply the any evidence test and affirm. See Howard Sheppard, Inc. v. McGowan, 137 Ga. App. 408 (224 SE2d 65) (1976).

2. Case No. 70936 involves the assessment of attorney fees and a 15% penalty under OCGA §§ 34-9-108 and 34-9-221.

(a) Because there was evidence that DOE received notice of the injury, it was incumbent upon it to meet the requirements of OCGA § 34-9-221 (e). DOE’s failure to comply therewith authorized the board’s imposition of the 15% penalty of that section. See Union Carbide Corp. v. Coffman, 158 Ga. App. 360 (2) (280 SE2d 140) (1981).

(b) There are different requirements insofar as attorney fees are concerned. First, the allowance of attorney fees under OCGA § 34-9-108 (b) must be predicated upon a determination that the proceedings were defended in whole or in part without reasonable grounds or that there were no reasonable grounds for noncompliance with OCGA § 34-9-221. See Union Carbide Corp. v. Coffman, supra.

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State v. Mitchell
339 S.E.2d 384 (Court of Appeals of Georgia, 1985)

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Bluebook (online)
339 S.E.2d 384, 177 Ga. App. 333, 1985 Ga. App. LEXIS 2580, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mitchell-gactapp-1985.