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Watts v. Borg Warner Automotive6/21/2005
causation . . . .
Holley, 357 N.C. at 232-33, 581 S.E.2d. at 753 (emphasis supplied).
Plaintiff's physicians testified only to "possibility" and not to a "medical certainty" or that it is more likely plaintiff's injuries were caused by his accident. Id.at 234, 581 S.E.2d. at 754. Possibility or might testimony "is insufficient to prove causation." Id. The entirety of plaintiff's expert medical testimony is "possibility" and "speculation" and does not meet plaintiff's burden to show the necessary degree of "medical certainty" to prove causation. Id.
Remand for further findings of fact could give plaintiff a second bite at the apple. Plaintiff fully litigated his claim and failed to prove causation. The majority perpetuates and encourages both fraudulent and stale claims against employers by employees who fail to report injuries for nearly two years and who fail to establish their injuries were caused by their alleged accident.
The Commission failed to make any findings of fact on the cause of plaintiff's injuries, but concluded " laintiff sustained an injury by accident arising out of his employment with defendants as a direct result of the work assigned on or about 28 October 1999." No competent evidence substantiates the required element of the accident causing plaintiff's injury. The Commission's conclusion of law that "plaintiff suffered a compensable injury" is not supported by any competent evidence in the record. The Commission's opinion and award should be reversed.
III. Conclusion
Plaintiff failed to report his injury "immediately" to defendants within the statutorily required thirty day requirement and failed to provide a reasonable excuse for his twenty month delay. N.C. Gen. Stat. ยง 97-22 (2003). Defendants were prejudiced as a matter of law by plaintiff's unduly delayed notification.
The Commission's conclusion of law that "plaintiff suffered a compensable injury" is not supported by any competent evidence or findings of fact. No competent evidence substantiates the required element of causation. Plaintiff's claim for temporary total disability compensation should be denied. I vote to reverse the Commission's opinion and award. I respectfully dissent.
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