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Chavis v. TLC Home Health Care8/16/2005
s provides in pertinent part:
no compensation shall be payable unless such written notice is given within 30 days after the occurrence of the accident or death, 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.
N.C. Gen. Stat. § 97-22 (2004). Section 97-22 requires written notice be given by the injured employee to the employer within thirty days. Pierce v. Autoclave Block Corp., 27 N.C. App. 276, 278, 218 S.E.2d 510, 511 (1975).
Here, both parties agree that Ms. Chavis did not give written notice of injury to her employer until she filed Form 18, more than thirty days after the accident. Since Ms. Chavis failed to providewritten notice within the thirty-day time period, (1) she must provide a reasonable excuse for not giving the written notice, and (2) the employer must fail to show prejudice for the delay. Id.
Section 97-22 gives the Industrial Commission the discretion to determine what is or is not a "reasonable excuse." N.C. Gen. Stat. § 97-22 (" nless reasonable excuse is made to the satisfaction of the Industrial Commission . . .") (emphasis added). This Court has previously indicated that included on the list of reasonable excuses would be, for example, "'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 . . ..'" Jones v. Lowe's Cos., Inc., 103 N.C. App. 73, 75, 404 S.E.2d 165, 166 (1991) (quoting Lawton v. County of Durham, 85 N.C. App. 589, 592, 355 S.E.2d 158, 160 (1987)); see Lakey v. U.S. Airways, Inc., 155 N.C. App. 169, 173, 573 S.E.2d 703, 706 (2002), disc. review denied, 357 N.C. 251, 582 S.E.2d 271 (2003) (reasonable excuse because employer knew of injury where employee was injured on employer's aircraft, employer filed an incident report, and employee saw employer's doctor within the thirty days following the injury); 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). The burden is on theemployee to show a "reasonable excuse." Jones, 103 N.C. App. at 75, 404 S.E.2d at 166.
The full Commission found the following pertinent finding of fact on the issue of notice:
24. Plaintiff's father reported the injury to defendant-employer on the date of injury. Defendant-employer had actual notice of the injury on the date it occurred, as evidenced by defendant-employer's own written incident report. Under these circumstances, plaintiff had no reason to believe she had to follow-up with a written report of injury. Plaintiff has offered reasonable excuse for failing to give written notice of the injury within 30 days. Defendants offered no evidence that might tend to show that they were prejudiced by plaintiff's failure to file a written report within thirty days of the injury.
Ms. Locklear testified that, on the date of the injury, Ms. Chavis's father notified her of Ms. Chavis's accident and injury. Ms. Locklear is TLC Home Health Care's scheduling supervisor. This is competent evidence to support the full Commission's finding that on the date of the injury, TLC Home Health Care had actual notice of Ms. Chavis's accident and injury. Actual notice by the employer has been previously held by this Court to be a reasonable excuse for not giving written notice within thirty days. See, e.g., Dav
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