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Foy v. Interstate Brands/Merita9/6/2005
Form" and submitted it to his supervisor for transmittal to the Industrial Commission. On September 6, 2001, defendants denied liability using a Form 61.
5. Defendant was given immediate actual notice of plaintiff's injury and disability and was not prejudiced by the plaintiff's slight delay in filing the proper Industrial Commission form.
Defendant does not assign error to the Commission's Finding of Fact #4, and therefore, it is binding on this Court. The report submitted by plaintiff's supervisor, Kenny King, lists the date of notification of the injury as 5 July 2001. Kenny King is the same supervisor plaintiff called to report his accident and request assistance to complete his route. While defendant's Human Resources manager may not have been informed of the incident until he received the report from King, defendant was on actual notice of plaintiff's injury the day it occurred and therefore was not prejudiced by plaintiff's delay in filing the proper forms. See Key v. Wagner Woodcraft, Inc., 33 N.C. App. 310, 314, 235 S.E.2d 254, 256 (1977) (employer had knowledge of the injury by accident through notification by plaintiff to his supervisor); Lawton v. County of Durham, 85 N.C. App. 589, 592, 355 S.E.2d 158, 160 (1987) (reasonable excuse includes "a belief that one's employer is already cognizant of the accident").
Furthermore, plaintiff established a reasonable excuse for the delay due to the fact that he was not diagnosed with cervical myelopathy until he was seen by Dr. Hsu on 22 August 2001. Two days after this diagnosis, plaintiff contacted defendant's Human Resources Manager who informed plaintiff he should meet with his supervisor and fill out the required workers' compensation forms. These forms were filled out on 27 August 2001, five days after the diagnosis of plaintiff's injury , giving defendant written notice of plaintiff's claims. Competent evidence exists in the record beforethis Court to support the Commission's findings. This assignment of error is overruled.
Affirmed.
Judges McCULLOUGH and TYSON concur.
Report per Rule 30(e).
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