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Chavis v. TLC Home Health Care8/16/2005
is v. Taylor-Wilkes Helicopter Serv., 145 N.C. App. 1, 11, 549 S.E.2d 580, 586 (2001) (employee's failure to provide written notice within thirty days did not bar his claim when his employer had actual notice of the injuries on the date they occurred).
Section 97-22 of the North Carolina General Statutes also requires that the full Commission be satisfied that the employer has not been prejudiced by the delay in written notification. N.C.Gen. Stat. ยง 97-22; Lakey, 155 N.C. App. at 173, 573 S.E.2d at 706 ("Possible prejudice occurs where the employer is not able to provide immediate medical diagnosis and treatment with a view to minimizing the seriousness of the injury and where the employer is unable to sufficiently investigate the incident causing the injury."). The burden is on the employer to show prejudice. Peagler, 138 N.C. App. at 604, 532 S.E.2d at 214; Jones, 103 N.C. App. at 76, 404 S.E.2d at 167.
Here, the full Commission found that TLC Home Health Care had actual notice of Ms. Chavis's accident on the day it occurred. The full Commission found also that TLC Home Health Care "offered no evidence that might tend to show that they were prejudiced" by any delay in written notification. Although TLC Home Health Care now argues it was prejudiced because it was unable to direct Ms. Chavis's medical treatment, it did not argue this to the full Commission. Also, TLC Home Health Care fails to assert how it was prejudiced by Ms. Chavis seeking medical treatment from her own doctor. We find competent evidence to support the full Commission's finding that TLC Home Health Care had actual knowledge of Ms. Chavis's injury and was not prejudiced by any delay in written notification. See Lakey, 155 N.C. App. at 173, 573 S.E.2d at 706 (the defendants failed to assert how they were prejudiced by a delay in written notification).
Finally, TLC Home Health Care argues that the full Commission erred by erroneously excluding evidence of Ms. Locklear's testimony regarding TLC Home Health Care's policies. Determining credibilityof witnesses is the responsibility of the full Commission, not this Court. Adams, 349 N.C. at 681, 509 S.E.2d at 413. This Court does not re-weigh the evidence. Id, 509 S.E.2d at 414 Furthermore, "the Commission does not have to explain its findings of fact by attempting to distinguish which evidence or witnesses it finds credible." Deese, 352 N.C. at 116, 530 S.E.2d at 553. We find this argument to be without merit.
Affirmed.
Judge MCCULLOUGH concurs.
Judge TYSON dissents.
TYSON, Judge dissenting.
The majority's opinion holds Ms. Chavis's "accident occurred in the course of her employment making her injury compensable." Ms. Chavis was not at work or "on-duty" and was completing a personal errand when the accident occurred. Also, this single car accident occurred after Ms. Chavis "blacked out," an idiopathic condition that was the sole cause of the accident. Ms. Chavis's injury did not "arise out of" her employment. I respectfully dissent.
I. Standard of Review
The standard of review of an appeal from a decision by the Commission is well-established. "In reviewing an order and award of the Industrial Commission in a case involving workmens['] compensation, [an appellate court] is limited to a determination of(1) whether the findings of fact are supported by competent evidence, and (2) whether the conclusions of law are supported by the findings." Moore v. Federal Express, 162 N.C. App. 292, 297, 590 S.E.2d 461, 465 (2004) (citation omitted). "As long as the Commission's findings are supported by competent evidence of record, they will not be overturned on appeal." Rackley v.
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