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[T] Crowder v. Preston Trucking Co.11/4/2003
ained an injury by accident to his back arising out the course of his employment with Preston and as a direct result of a specific traumatic incident of the work assignedon 19 May 1999 which aggravated or exacerbated the plaintiff's pre- existing back condition. Defendant appealed to the full Commission which affirmed the Deputy's findings and awarded benefits. From the full Commission's opinion and award, defendant appeals.
Defendant contends that the Commission erred in finding a reasonable excuse for plaintiff's failure to give written notice of the accident within 30 days of its occurrence. Defendant also contends that the Commission erred in finding that there was no prejudice to the defendant due to the lack of written notice. We disagree.
N.C. Gen. Stat. § 97-22 provides that an injured employee must give written notice to his employer "immediately on the occurrence of an accident, or as soon thereafter as practicable . . .; but no compensation shall be payable unless such written notice is given within 30 days after the occurrence of the accident . . . ." N.C.G.S. § 97-22 (2001) (emphasis added). Here, plaintiff never gave his employer written notice. However, an employee is excused from this 30-day notice requirement if the employee has a "reasonable excuse . . . for not giving such notice and . . . the employer has not been prejudiced thereby." N.C.G.S. § 97-22.
A "reasonable excuse" has been defined by this Court to include "a belief that one's employer is already cognizant of the accident . . ." or " 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 . . . ." 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)(citation omitted).
Plaintiff testified that he called Preston's central dispatch office in Maryland and spoke about his injury with the dispatcher on duty and with Ms. Jean Farmer, the company nurse. Defendant disputes this and argues that plaintiff gave no notice of the injury. The Commission, however, rejected defendant's evidence on this point and found as a fact that plaintiff had actually notified his employer of his injury. In that there is competent evidence from plaintiff's testimony that he notified Preston of his injury, we are bound by that finding. Jones at 75, 404 S.E.2d at 166. Accordingly, the Commission did not err when it excused the requirement for written notice on the grounds that plaintiff's employer had already been informed of the accident.
N.C. Gen. Stat. § 97-22 would also bar an employee's claim if the Commission found that the employer was prejudiced by the lack of written notice, even where the employee has shown reasonable excuse. Defendant bears the burden of showing prejudice. Id. at 76, 404 S.E.2d at 167. In order to find prejudice to the employer, the court must evaluate the evidence of prejudice in relation to the purpose of the notice requirement:
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. The evidence tends to show that immediate medical diagnosis and treatment would not have minimized the injury to plaintiff's back, that the exact location of the accident was unknown and that the truck that plaintiff was driving, though sold as part of the bankruptcy proceeding, could have been located for examination through the use of the
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