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Watts v. Borg Warner Automotive6/21/2005
usive on appeal when supported by competent evidence," even if there is evidence to support a contrary finding, Morrison v. Burlington Indus., 304 N.C. 1, 6, 282 S.E.2d 458, 463 (1981), and may be set aside on appeal only "when there is a complete lack of competent evidence to support them[.]" Young v. Hickory Bus. Furniture, 353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000) (citation omitted). Further, all evidence must be taken in the light most favorable to the plaintiff, and the plaintiff "is entitled to the benefit of every reasonable inference to be drawn from the evidence." Deese, 352 N.C. at 115, 530 S.E.2d at 553.
Borg Warner argues that the full Commission erred in awarding Mr. Watts temporary total disability benefits and medical expenses because Mr. Watts's claim was barred by his failure to timely notify Borg Warner, in writing, of his injury. Because the full Commission failed to make adequate findings of fact, we remand for further findings.
Section 97-22 of the North Carolina General Statutes 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 clearly 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 Mr. Watts did not give written notice of injury to his employer until twenty months after the injury occurred. Since Mr. Watts failed to provide written notice within the thirty-day time period, (1) he must provide a reasonable excuse for not giving the written notice, and (2) the employer must 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 (". . .unless 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 also Lakey v. U.S. Airways, Inc., 155 N.C. App. 169, 173, 573 S.E.2d 703, 706 (2002) (reasonable excuse because employer knew of injury where employee was injured on employer's aircraft, employer filed an incident report, andemployee 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 the employee to show a "reasonable excuse." Jones, 103 N.C. App. at 75, 404 S.E.2d at 166.
In this case, Mr. Watts argues in his brief that his fear of retaliation was the "reasonable excuse" for failing timely to notify Borg Warner in writing. However, while the full Commission made a finding of fact that the "late reporting did not prejudice defendant and plaintiff'
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