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Watts v. Borg Warner Automotive6/21/2005
irty days of its occurrence is reasonable, pursuant to N.C. Gen. Stat. ยง 97-22. The Full Commission did not make adequate findings on this issue, and thus we deem it necessary to remand for further consideration.
This Court has reviewed the "reasonable excuse" language in section 97-22 many times. See, e.g., Lakey v. U.S. Airways, Inc., 155 N.C. App. 169, 573 S.E.2d 703 (2002); Davis v. Taylor-Wilkes Helicopter Serv., Inc., 145 N.C. App. 1, 549 S.E.2d 580 (2001); Peagler v. Tyson Foods, Inc., 138 N.C. App. 593, 532 S.E.2d 207 (2000); Westbrooks v. Bowes, 130 N.C. App. 517, 503 S.E.2d 409(1998); Jones v. Lowe's Companies, 103 N.C. App. 73, 404 S.E.2d 165 (1991); Lawton v. County of Durham, 85 N.C. App. 589, 355 S.E.2d 158 (1987); Sanderson v. Northeast Construction Co., 77 N.C. App. 117, 334 S.E.2d 392, (1985); Hill v. Bio-Gro Systems, 73 N.C. App. 112, 326 S.E.2d 72 (1985). The majority and dissent in this case highlight a subtle difference in these cases that has not been precisely addressed: whether "reasonable excuse" should be read broadly under the circumstances or strictly construed and limited to two previously identified circumstances.
In Lawton, this Court remanded the case to the Full Commission for further findings, but not before interpreting the statutory language.
While a belief that one's employer is already cognizant of the accident may serve as 'reasonable excuse' under G.S. 97-22, see Key v. Woodcraft, Inc., 33 N.C. App. 310, 235 S.E.2d 254 (1977), it is not the only basis for establishing reasonable excuse. The question of whether an employee has shown reasonable excuse depends on the reasonableness of his conduct under the circumstances. Where 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, he has established 'reasonable excuse' as that term is used in G.S. 97-22. See generally 3 Larson, The Law of Workmen's Compensation , Section 78.40 (1983). Though plaintiff testified that he did not immediately realize the nature and seriousness of his injury, the Commission made no findings whether, under the circumstances, that constituted a reasonable excuse. Accordingly, this case must be remanded for additional findings.
Lawton, 85 N.C. App. at 592-593, 355 S.E.2d at 160. Then, in Jones, the Court quoted the language in Lawton, not of "reasonableness under the circumstances," but the more definitive text as what constitutes a reasonable excuse.
A 'reasonable excuse' has been defined by this Court to include '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, 103 N.C. App. at 75, 404 S.E.2d at 166 (internal quotations noted above). No Court has yet to hold that any circumstance other than the employer's knowledge of the injury or the employee's lack thereof is a reasonable excuse.
The dissent argues that these are the only two circumstances that warrant a reasonable excuse and plaintiff fails to fall into either. I write separately to stress the fact that the majority does not agree with this limited interpretation of "reasonable excuse." Indeed, the majority opinion cites Lawton for the proposition that " hether an employee has shown a reasonable excuse depends on the reasonableness of his conduct under the circumstances." Lawton, 85 N.C. App. at 592, 355 S.E.2d at 160. The fact that no opinion has found a reasonable excuse to encompass anything other than the two identified in Jones s
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