Watts v. Borg Warner Automotive, Inc.

WYNN, Judge.

ELMORE, Judge concurring.

I concur in the result and reasoning of the majority opinion on both issues. I write separately in an attempt to guide the Industrial Commission on section97-22upon remand.

At the root of this case is the question of whether plaintiff's excuse for not reporting an alleged on-the-job injury within thirty days of its occurrence is reasonable, pursuant to N.C. Gen. Stat. §97-22. The Full Commission did not make adequate findings on this issue, and thus we deem it necessary to remand for further consideration.

This Court has reviewed the "reasonable excuse" language in section97-22many times.See, e.g., Lakey v. U.S. Airways,Inc.,155 N.C. App. 169,573 S.E.2d 703(2002);Davisv. Taylor-Wilkes Helicopter Serv., Inc.,145 N.C. App. 1,549 S.E.2d 580(2001);Peagler v. Tyson Foods, Inc.,138 N.C. App. 593,532 S.E.2d 207(2000);Westbrooks v.Bowes,130 N.C. App. 517,503 S.E.2d 409(1998);Jonesv. Lowe's Companies,103 N.C. App. 73,404 S.E.2d 165(1991);Lawton v. County of Durham,85 N.C. App. 589,355 S.E.2d 158(1987);Sanderson v. Northeast ConstructionCo.,77 N.C. App. 117,334 S.E.2d 392, (1985);Hill v.Bio-Gro Systems,73 N.C. App. 112,326 S.E.2d 72(1985). The majority and dissent in this case highlight a subtle difference in these cases that has not been precisely addressed: whether "reasonable excuse" should be read broadly under the circumstances or strictly construed and limited to two previously identified circumstances.

InLawton, this Court remanded the case to the Full Commission for further findings, but not before interpreting the statutory language.

While a belief that one's employer is already cognizant of the accident may serve as `reasonable excuse' under G.S.97-22,see Key v. Woodcraft,Inc.,33 N.C. App. 310,235 S.E.2d 254(1977), it is not the only basis for establishing reasonable excuse.The question of whether an employee hasshown reasonable excuse depends on the reasonablenessof his conduct under the circumstances.Where the employee does not reasonably know of the nature, seriousness, or probable compensable character of his injury and delays notification only until he reasonably knows, he has established `reasonable excuse' as that term is used in G.S.97-22.Seegenerally3 Larson,The Law of Workmen'sCompensation, Section 78.40 (1983). Though plaintiff testifiedPage 8that he did not immediately realize the nature and seriousness of his injury, the Commission made no findings whether, under the circumstances, that constituted a reasonable excuse. Accordingly, this case must be remanded for additional findings.

Lawton,85 N.C. App. at 592-93,355 S.E.2d at 160. Then, inJones, the Court quoted the language inLawton, not of "reasonableness under the circumstances," but the more definitive text as what constitutes a reasonable excuse.

A `reasonable excuse' has been defined by this Court to include `a belief that one's employer is already cognizant of the accident . . .' or `[w]here the employee does not reasonably know of the nature, seriousness, or probable compensable character of his injury and delays notification only until he reasonably knows. . . .'

Jones,103 N.C. App. at 75,404 S.E.2d at 166(internal quotations noted above). No Court has yet to hold that any circumstance other than the employer's knowledge of the injury or the employee's lack thereof is a reasonable excuse.

The dissent argues that these are the only two circumstances that warrant a reasonable excuse and plaintiff fails to fall into either. I write separately to stress the fact that the majority does not agree with this limited interpretation of "reasonable excuse." Indeed, the majority opinion citesLawtonfor the proposition that "[w]hether an employee has shown a reasonable excuse depends on the reasonableness of his conduct under the circumstances."Lawton,85 N.C. App. at 592,355 S.E.2d at 160. The fact that no opinion has found a reasonable excuse to encompass anything other than the two identified inJonesshould not limit the Commission's determination of what is reasonable.

TYSON, Judge dissenting.

The majority holds the Commission failed to make adequate findings of fact on: (1) a reasonable excuse for plaintiff's failure to timely notify his employer of an industrial accident; and (2) whether plaintiff's alleged injuries were caused by the accident and remands to the Commission for further findings of fact. Under the facts of and the law applicable to this case, remand is unnecessary. I vote to reverse and respectfully dissent.Page 9 Our review of a Commission's opinion and award "[is] limited to reviewing whether any competent evidence supports the Commission's findings of fact and whether the findings of fact support the Commission's conclusions of law."Deese v.Champion Int'l Corp.,352 N.C. 109,116,530 S.E.2d 549,553(2000). No findings of fact support the Commission's conclusions of law. This Court reviews conclusions of lawde novo. Grantham v. R. G. Barry Corp.,127 N.C. App. 529,534,491 S.E.2d 678,681(1997),disc. rev.denied,347 N.C. 671,500 S.E.2d 86(1998). The Commission found as fact that "[p]laintiff did not report the injury to his employer within 30 days" but concluded as a matter of law that plaintiff's twenty month delay was justified by plaintiff's showing a "reasonable excuse." The majority agrees plaintiff failed to provide defendants notice within the required thirty day time period, but remands the matter for additional findings of fact whether a reasonable excuse was given. Undisputed evidence shows plaintiff failed to notify defendants within the statutorily required thirty days and failed to offer any "reasonable excuse" recognized by any precedent. Remand to the Commission for further findings of fact is unecessary. The Commission's opinion and award is affected with an error of law and should be reversed. N.C. Gen. Stat. §97-22(2003) states "every injured employee . . .shall immediatelyon the occurrence of an accident . . . give or cause to be given to the employer a written notice of the accident" and"no compensation shallbe payableunless such written notice is givenwithin30 daysafter the occurrence of the accident." (Emphasis supplied). "The purpose of the notice-of-injury requirement is two-fold. It allows the employer to provide immediate medical diagnosis and treatment . . . to minimiz[e] the seriousness of the injury, and . . . [to] facilitate the earliest possible investigation of the circumstances surrounding the injury."Booker v. Medical Center,297 N.C. 458,481,256 S.E.2d 189,204(1979) (N.C. Gen. Stat. §97-22inquiries are conducted to prevent prejudice to the employer by lack of notice by the employee).

"The primary goal of statutory construction is to effectuate the purpose of the legislature in enacting the statute."Hoffman v. GreatPage 10American Alliance Ins. Co.,166 N.C. App. 422,427,601 S.E.2d 908,912(2004). We are required to interpret notice requirements in N.C. Gen. Stat. §97-22to protect the employer's right and to require timely notice of injury.See Davis v. Taylor-Wilkes Helicopter Serv., Inc.,145 N.C. App. 1,2,549 S.E.2d 580,581(2001) (Both parties knew of the plaintiff's injury within thirty days but believed the plaintiff was an "independent contractor" when he was, in fact, an employee. The Court found reasonable excuse and no prejudice in the delay). Cases cited within Judge Elmore's concurring opinion show either the employer had actual knowledge of the injury or the plaintiff was unaware a compensable injury had occurred:Lakey v. U.S. Airways, Inc.,155 N.C. App. 169,573 S.E.2d 703(2002) (The defendant failed to allege prejudice and the delay of five months for written notice did not prejudice the defendant. The Court held the defendant had notice because the plaintiff's incident report was made after the flight was complete.),disc. rev. denied,357 N.C. 251,582 S.E.2d 271(2003);Westbrooks v. Bowes,130 N.C. App. 517,503 S.E.2d 409(1998) (The defendant conceded immediate notice but contended prejudice by the surviving spouse's filing of a claim a year late. The court remanded for a finding of prejudice because the Commission's award failed to address it.);Hill v. Bio-Gro Systems,73 N.C. App. 112,326 S.E.2d 72(1985) (The employee told his supervisor about the accident within a week, but had not suffered any pain and was unaware of his injury. The Court found the defendant was not prejudiced in the delay.);Sanderson v. NortheastConstruction Co.,77 N.C. App. 117,334 S.E.2d 392(1985) (The employer was on constructive notice because it received a doctor's bill for plaintiff's injury within a month. The Court found no prejudice in the delay.);see also Chilton v.School of Medicine,45 N.C. App. 13,262 S.E.2d 347(1980) (The plaintiff was not barred by failure to notify the employer within thirty days where school faculty had personal knowledge of the plaintiff's injury as it happened.).

Here, plaintiff failed to immediately and timely report his alleged 28 October 1999 injury to defendants until July 2001, more than twenty months after the accident. No precedent has allowed a reasonable excuse for a twenty month delay. Under N.C. Gen. Stat. §97-22, plaintiff's failure to provide notice "immediately on the occurrence of an accident" which caused his alleged injuries bars his workers' compensation claim.Page 11 Plaintiff's failure to timely report the accident places the burden on him to provide a "reasonable excuse" for his delay. The Commission must find and be "satisfied that the employer has not been prejudiced." N.C. Gen. Stat. §97-22.

The Commission concluded plaintiffs "fear [of] losing his job" was a reasonable excuse for his unduly delayed notification to defendants of his injuries. The majority remands to the Full Commission because "the full Commission made no findings of fact showing that [plaintiff] feared retaliation if he timely reported his injury" and whether this "fear" was a reasonable excuse.Id.; Lawton v. County ofDurham,85 N.C. App. 589,592-93,355 S.E.2d 158,160(1987) (The Commission did not address the employee's allegation that he did not "realize the nature and seriousness of his injury").

Defendants argue plaintiff failed to give and cannot provide a reasonable excuse for his prejudicial failure to provide written notice to his employer within thirty days. I agree. "The burden is on the employee to show a `reasonable excuse.'"Jones v. Lowe's Companies,103 N.C. App. 73,75,404 S.E.2d 165,166(1991) (quotingLawton,85 N.C. App. at 592,355 S.E.2d at 160) (Two months after the injury, the employee gave oral notice and sought treatment. Three months after injury, the employee gave written notice. The Court found a reasonable excuse because the plaintiff did not know he was hurt). All prior cases recognized a "reasonable excuse" as either "`a belief that one's employer is already cognizant of the accident . . .' or `[where] the employee does not reasonably know of the nature, seriousness, or probable compensable character of his injury and delays notification only until he reasonably knows. . . .'"Id.Undisputed facts show plaintiff cannot justify his failure of notice under either exception to excuse his noncompliance with the statute. The Commission erred in concluding as a matter of law that plaintiff gave a reasonable excuse for his failure to notify defendants of the accident. We all agree no findings of fact show the employer was "cognizant of the accident."Id.The Commission found: (1) "plaintiffdid not reporta work-related injury to defendant-employer[;]" (2) plaintiff"did not mentionanything about an injury at work to [the human relations coordinator;]" and (3) "when [plaintiff] completed] the forms regarding disability associated with the neck surgery," hePage 12affirmatively "checked the box stating that the conditionwas not the resultof a work-related illness or injury." (Emphasis added). The Commission's findings of fact directly conflict with his employer being "cognizant of the accident" to excuse plaintiff's failure to timely report.Id.

Plaintiff not only failed to report his accident to defendants but affirmatively represented his injury was not related to his employment. Plaintiff cannot meet his burden of proving a reasonable excuse existed for his failure to notify his employer of the accident. We also all agree the Commission's findings of fact also cannot support a conclusion that plaintiff was unaware "of the nature, seriousness, or probable compensable character of his injury."Id.The Commission found plaintiff was injured on 28 October 1999, visited a chiropractor on 1 November 1999, "missed approximately two weeks of work," and was treated by an orthopedic surgeon. Plaintiff sought treatment from his chiropractor within four days of his injuries. Plaintiff was obviously aware of his injuries throughout these visits and knew or should have known of "the nature, seriousness, or probable compensable character of his injury."Jones,103 N.C. App. at 75,404 S.E.2d at 166. Plaintiff cannot meet his burden of showing a reasonable excuse by not realizing the "seriousness" of his injuries.Id.Undisputed facts also show plaintiff had previously filed a workers' compensation claim and was aware of his duty to promptly notify his employer.

N.C. Gen. Stat.97-22requires that a "reasonable excuse is made to the satisfaction of the Industrial Commission." The Commission's finding of fact stated, plaintiff's "late reporting did not prejudice defendants] and plaintiff's failure to timely report the injury is excused." The majority correctly holds the Commission failed to make a finding of fact to support its conclusion that plaintiff had a "reasonable excuse." N.C. Gen. Stat. §97-22.

Undisputed evidence shows plaintiff cannot provide a reasonable excuse to the Commission for his failure to timely notify defendants of his injury. Plaintiff did not give actual notice to defendants and intentionally misrepresented his accident. Defendants were not "cognizant of the accident" and plaintiff was aware "of the nature, seriousness, or probable compensable character of his injury."See Jones,103 N.C. App. at 75,404 S.E.2d at 166.Page 13

Plaintiff's actions directly contravene the purpose of the notice requirement in N.C. Gen. Stat. §97-22. This Court has recognized claims by a plaintiff where timely notice was not given, if the plaintiff was unaware of the serious nature of their injury.See Peagler v. Tyson Foods, Inc.,138 N.C. App. 593,532 S.E.2d 207(2000) (The plaintiff filed a claim after thirty days but showed reasonable excuse that doctors misdiagnosed his injury as a heart attack when the actual injury was a herniated disc and the plaintiff depended on his wife and doctor to notify the defendant of his work-related injuries.).

Here, plaintiff knew of his injuries, immediately sought treatment for them, and did not report the accident to his employer. Plaintiff's actions are easily distinguishable from all precedents upholding reasonable excuses. Plaintiff claims he failed to report his injuries for "fear [of] losing his job." The purpose of the notice requirement in N.C. Gen. Stat. §97-22is not for the benefit of the employee, but rather to provide actual notice to the employer. Plaintiff cannot meet his burden to show a reasonable excuse.Jones,103 N.C. App. at 75,404 S.E.2d at 166. The Commission's opinion and award should be reversed. Defendants suffered prejudice as a matter of law by plaintiff's delay regardless of the Commission's conclusion that plaintiff had a reasonable excuse.

N.C. Gen. Stat. §97-22requires both a "reasonable excuse" and a showing "that the employer has not been prejudiced" if notice of an injury is untimely. "If prejudice is shown, [e]mployee's claim is barred even though he had a reasonable excuse for not giving notice of the accident within 30 days."Id.at 76,404 S.E.2d at 167. The purpose of the requirement of notice is to prevent prejudice toward the employer. "The purpose is dual: First, to enable the employer to provide immediate medical diagnosis and treatment with a view to minimizing the seriousness of the injury; and second, to facilitate the earliest possible investigation of the facts surrounding the injury."Id.at 76-77,404 S.E.2d at 167;Booker,297 N.C. at 481,256 S.E.2d at 204;see2B Larson's Workmen's Compensation Law § 78.10, 15-102.

Plaintiff delayed reporting his accident for nearly two years after it occurred. Without notice, defendant-employer was: (1) unable to provide plaintiff with immediate medical diagnosis; (2) unable to provide plaintiff with treatment and could not initiate the earliest possible investigation of the facts; (3) unable to interview employees whoPage 14may have witnessed plaintiff's injuries; (4) unable to investigate the site where the alleged injury occurred; and (5) unable to provide or direct plaintiff's medical treatment.Jones,103 N.C. App. at 76-77,404 S.E.2d at 167.

We all agree that although "the Commission is not required to make findings of fact concerning each question raised by the evidence, . . . it is required to make specific findings pertaining to these crucial facts upon which plaintiff's claim rests."Barnes v. O'Berry Center,55 N.C. App. 244,246,284 S.E.2d 716,717(1981).

The Commission's conclusion of law, "[d]efendant-employer has not shown prejudice for plaintiff's late filing of this claim" is unsupported by its findings of fact. The only finding of fact made by the Commission is plaintiff's "late reporting did not prejudice defendant. . . ." This statement is actually a conclusion of law and does not explain or support the Commission's finding. The Commission failed to consider each of the factors above.Jones,103 N.C. App. at 76-77,404 S.E.2d at 167. If no finding of fact supports the Commission's conclusion of law, our review isde novo. Grantham,127 N.C. App. at 534,491 S.E.2d at 681. Defendants were prejudiced by plaintiff's delayed notification as a matter of law.Jones,103 N.C. App. at 76,404 S.E.2d at 167. Remand is unnecessary where plaintiff cannot offer any recognized "reasonable excuse" to overcome prejudice to defendants. The Commission's opinion and award should be reversed. Defendants argue the Commission failed to make adequate findings of fact on causation.

We all agree the Commission "failed to make adequate findings of fact on causation," but the majority remands for further findings of fact. Our Supreme Court has repeatedly held "that the entirety of causation evidence" must "meet the reasonable degree of medical certainty standard necessary to establish a causal link between" the plaintiff's accident and their injury.Holley v. ACTS, Inc.,357 N.C. 228,234,581 S.E.2d 750,754(2003);Edmonds v. Fresenius Med. Care,165 N.C. App. 811,600 S.E.2d 501(2004) (J. Steelman, dissenting),rev'd per curiam,359 N.C. 313,608 S.E.2d 755(2005);Alexander v. Wal-mart Stores, Inc.,166 N.C. App. 563,603 S.E.2d 552(2004) (J. Hudson dissenting),rev'd percuriam,359 N.C. 403,610 S.E.2d 374(2005).

"Unless a causal connection between employment and injury is proved, the injury is not compensable. The burden of proving thePage 15causal relationship or connection rests with the claimant."Arp v. Parkdale Mills, Inc.,150 N.C. App. 266,274,563 S.E.2d 62,68(2002) (J. Tyson, dissenting),rev'd percuriam,356 N.C. 657,576 S.E.2d 326(2003). "The rule of causal relation is `the very sheet anchor of the Workmen's Compensation Act,' and has been adhered to in our decisions, and prevents our Act from being a general health and insurance benefit act."Id.(quotingBryan v. First FreeWill Baptist Church,267 N.C. 111,115,147 S.E.2d 633,635(1966)).

"Although expert testimony as to the possible cause of a medical condition is admissible[,] . . . it is insufficient to prove causation, particularly `when there is additional evidence or testimony showing the expert's opinion to be a guess or mere speculation.'"Edmonds,165 N.C. App. at 818,600 S.E.2d at 506(quotingHolley,357 N.C. at 233,581 S.E.2d at 753).

"Although medical certainty is not required, an expert's `speculation' is insufficient to establish causation."Holley,357 N.C. at 234,581 S.E.2d at 754. InAlexander, our Supreme Court held "the role of the Court of Appeals is `limited to reviewing whether any competent evidence supports the Commission's findings of fact and whether the findings of fact support the Commission's conclusions of law.'"166 N.C. App. at 573,603 S.E.2d at 558(quotingDeese,352 N.C. at 116,530 S.E.2d at 553).

Plaintiff's orthopedic surgeon, Dr. Moody, testified plaintiff's "work injury could have aggravated and caused the onset of symptoms in the neck and low back" or could have been caused by plaintiff's recreational weight lifting or working on his home. Plaintiff's family physician, Dr. Kelly, also testified concerning plaintiff's injuries, "I do not think that his whatever happened at work caused all this. . . ." Dr. Kelly later added, "I think it could have, could have aggravated, accelerated or contributed." This testimony is insufficient to prove causation.

[M]edical experts were asked only whether "`a particular event or condition could or might have produced the result in question, not whether it did produce such result.'"Lockwood v. McCaskill,262 N.C. 663,668,138 S.E.2d 541,545(1964) (quoting Stansbury, North Carolina Evidence § 137, at 332 (2d ed. 1963)). With the adoption of Rule704in 1983, experts were allowed to testify more definitively as to causation. N.C.G.S. §8C-1, Rule 704. While the "could" or "might" question format circumvented the admissibility problem, it led to confusion that such testimony was sufficientPage 16to prove causation.See Alva v. CharlotteMecklenburg Hosp. Auth.,118 N.C. App. 76,80-81,453 S.E.2d 871,874(1995) (a case that erroneously relied onLockwoodan opinion on the admissibility of expert opinion testimony, to find "could" or "might" testimony sufficient to prove causation). Although expert testimony as to the possible cause of a medical condition is admissible if helpful to the jury,Cherry,84 N.C. App. at 604-05,353 S.E.2d at 437,it is insufficient toprove causation. . . .

Holley,357 N.C. at 232-33,581 S.E.2d at 753(emphasis supplied).

Plaintiffs physicians testified only to "possibility" and not to a "medical certainty" or that it is more likely plaintiff's injuries were caused by his accident.Id.at 234,581 S.E.2d at 754. Possibility or might testimony "is insufficient to prove causation."Id.The entirety of plaintiff's expert medical testimony is "possibility" and "speculation" and does not meet plaintiff's burden to show the necessary degree of "medical certainty" to prove causation.Id.

Remand for further findings of fact could give plaintiff a second bite at the apple. Plaintiff fully litigated his claim and failed to prove causation. The majority perpetuates and encourages both fraudulent and stale claims against employers by employees who fail to report injuries for nearly two years and who fail to establish their injuries were caused by their alleged accident.

The Commission failed to make any findings of fact on the cause of plaintiff's injuries, but concluded "[p]laintiff sustained an injury by accident arising out of his employment with defendants as a direct result of the work assigned on or about 28 October 1999." No competent evidence substantiates the required element of the accident causing plaintiff's injury. The Commission's conclusion of law that "plaintiff suffered a compensable injury" is not supported by any competent evidence in the record. The Commission's opinion and award should be reversed. Plaintiff failed to report his injury "immediately" to defendants within the statutorily required thirty day requirement and failed to provide a reasonable excuse for his twenty month delay. N.C. Gen. Stat. §97-22(2003). Defendants were prejudiced as a matter of law by plaintiff's unduly delayed notification.

The Commission's conclusion of law that "plaintiff suffered a compensable injury" is not supported by any competent evidence orPage 17findings of fact. No competent evidence substantiates the required element of causation. Plaintiff's claim for temporary total disability compensation should be denied. I vote to reverse the Commission's opinion and award. I respectfully dissent.