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Foy v. Interstate Brands/Merita9/6/2005
ff has incurred medical expenses that were reasonably necessary to effect a cure or give relief for his back injury. Plaintiff has not reached maximum medical improvement and further medical treatment may be necessary. Plaintiff is entitled to have defendants pay for all medical treatments, past and future, reasonably related to his compensable injury. N.C.G.S. 97-25.
4. As the result of his injury by accident of 5 July 2001, plaintiff is disabled from work and is entitled to receive compensation for temporary total disability compensation at the rate of $546.67 per week for the period beginning 6 July 2001 and continuingthereafter until further order of the Industria1 Commission. N.C.G.S. 97-29.
To support a conclusion of disability, the Commission must find:
(1) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in the same employment, (2) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in any other employment, and (3) that this [plaintiff's] incapacity to earn was caused by injury.
Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982).
Plaintiff testified his employment with defendant has been terminated and he began drawing social security disability in early 2002. Furthermore, defendant has not objected to the Commission's Finding of Fact #3, which states:
3. The plaintiff sought immediate treatment from Onslow Memorial Hospital, where he was initially misdiagnosed as having suffered a "mini-stroke." The plaintiff was referred to Coastal Nuerological Associates and was evaluated there by Dr. Ballenger on 6 July 2001. After numerous tests, Dr. Ballenger diagnosed plaintiff's condition as a cervical myelopathy and referred the plaintiff to Dr. Sean Hsu, a neurosurgeon. Dr. Hsu saw plaintiff on 22 August 2001, diagnosed a cervical myelopathy, and recommended surgery to remove the herniated disc to decompress the spinal cord. This surgery was performed on 30 August 2001. Plaintiff has been unable to work since the accident.
(Emphasis added.) This finding is binding upon this Court and, when considered in light of our analysis in Issue I supra, suffices to show plaintiff is incapable of earning the same wages he previously earned because of his injury . These facts are sufficient to support the conclusion of the Commission thatplaintiff is entitled to disability income as compensation for his injury resulting from a specific traumatic incident. This assignment of error is overruled.
IV.
Finally, defendant claims the Full Commission erred by finding plaintiff provided defendant with adequate notice pursuant to N.C. Gen. Stat. § 97-22. N.C. Gen. Stat § 97-22 requires an injured employee to notify his employer in writing of the occurrence of a work-place accident. N.C.G.S. § 97-22 (2003). Furthermore, if the employee does not provide written notice of the accident within thirty days the employee is not entitled to workers' compensation benefits unless "reasonable excuse is made to the satisfaction of the Industrial Commission for not giving such notice and the Commission is satisfied that the employer has not been prejudiced thereby." Id.; see also, Peagler v. Tyson Foods, Inc., 138 N.C. App. 593, 603-04, 532 S.E.2d 207, 214 (2000) (reasonable excuse found because employee did not know nature and character of injury where doctors originally told him he had a heart attack, not a herniated disk).
In its Findings of Fact the Full Commission found as follows:
4. On 27 August 2001, the plaintiff completed a "Workers Compensation Claim Reporting
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