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September 30, 1994


Appeal from Walker Circuti Court. (CV-92-233). John Madison, TRIAL JUDGE.

Rehearing Overruled November 10, 1994, . Released for Publication March 4, 1995.

Wright, Retired Appellate Judge.

The opinion of the court was delivered by: Wright

WRIGHT, Retired Appellate Judge

Mary Elliott brought this action to recover benefits from Wal-Mart Stores, Inc., under the Workmen's Compensation Act of Alabama. Following oral proceedings, the trial court found Elliott to be covered by the Act and to be totally and permanently disabled from an employment-caused injury. Wal-Mart appeals.

The sole issue on appeal is whether Elliott gave Wal-Mart the required statutory notice of injury. § 25-5-78, Code 1975.

Section 25-5-78 provides the following:

"Every injured employee or his representative shall, within five days after the occurrence of an accident, give or cause to be given to the employer written notice of the accident, and the employee, if he fails to give such notice, shall not be entitled to physician's or medical fees nor any compensation which may have accrued under the terms of this article ... unless it can be shown that the party required to give such notice had been prevented from doing so by reason of physical or mental incapacity, other than minority, fraud or deceit, or equal good reason, but no compensation shall be payable unless such written notice is given within 90 days after the occurrence of the accident ...."

The purpose of written notice is to advise the employer that the employee received a specified injury, in the course of his employment, at a specified time, and at a specified place, so that the employer may verify the injury by its own investigation. James v. Hornady Truck Line, Inc., 601 So. 2d 1059 (Ala. Civ. App. 1992). Written notice is not required where it is shown that the employer had actual notice of the injury. James. Oral notice is sufficient to give the employer actual notice. James. Like written notice, oral notice imparts to the employer the opportunity to investigate and protect itself against simulated and exaggerated claims. International Paper Co. v. Murray, 490 So. 2d 1228 (Ala. Civ. App.), remanded on other grounds, 490 So. 2d 1230 (Ala. 1984). Even with oral notification, the employer must be notified that the employee was injured while in the scope of his employment. James. The fact that an employer is aware that the employee suffers from a malady or has medical problems is not, by itself, sufficient to charge the employer with actual notice. Russell Coal Co. v. Williams, 550 So. 2d 1007 (Ala. Civ. App. 1989). Knowledge on the part of a supervisory or representative agent of the employer that a work-related injury has occurred will generally be imputed to the employer. Beatrice Foods Co. v. Clemons, 54 Ala. App. 150, 306 So. 2d 18 (Ala. Civ. App. 1975). Notice of the injury to a mere co-employee is not sufficient to excuse written notice. Legg v. Americold Compressor Co., 336 So. 2d 1121 (Ala. Civ. App. 1976). The employee has the burden of proving that the employer had notice or knowledge of the injury. Sloss-Sheffield Steel & Iron Co. v. Watts, 236 Ala. 636, 184 So. 201 (1938).

In a workmen's compensation case, this court's review is limited to a determination of whether there is any legal evidence to support the trial court's Conclusions. If a reasonable view of the evidence supports the findings of the trial court, this court may then determine whether the correct legal Conclusions have been drawn therefrom. Ex parte Eastwood Foods, Inc., 575 So. 2d 91 (Ala. 1991).

Elliott did not give Wal-Mart adequate written notice. The question to be determined, therefore, is whether proper oral notice was given. Actual knowledge sufficient to remove the written notice requirement is a question of fact to be determined by the trial court. Brown-Ray Development, Inc. v. Murray, 568 So. 2d 814 (Ala. Civ. App. 1990). All reasonable doubts in the evidence must be resolved in favor of the employee. Marley Erectors, Inc. v. Rice, 620 So. 2d 31 (Ala. Civ. App. 1993).

The pertinent facts, viewed in the light most favorable to Elliott, James, are as follows: Elliott worked for Wal-Mart for approximately 14 years. She testified that in June 1990 she injured her neck when she lifted some oil out of a customer's cart. She testified that while she was on her break, she told the assistant manager "that my neck was hurting really bad and that I had lifted that oil and I asked him could I go home. And he let me go home early that night." The assistant manager did not testify at trial. On cross-examination Elliott became somewhat confused as to the exact conversation she had with the assistant manager.

Elliott called in sick the next day. She was hospitalized on June 18, 1990, and was diagnosed as having herniated discs at C5, C6, and C7. She underwent an anterior cervical diskectomy and fusion. (Elliott had previously had the same surgery in 1985.) She was released to return to work on August 25, 1990.

Elliott submitted the medical expenses for her treatment on her group health insurance policy. Her insurance claim form, which was introduced into evidence, asked for a description of her illness or injury. She wrote "cervical disk." The claim form also ...

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