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Watts v. Borg Warner Automotive6/21/2005
169, 573 S.E.2d 703 (2002) (The defendant failed to allege prejudice and the delay of five months for written notice did not prejudice the defendant. The Court held the defendant had notice because the plaintiff's incident report was made after the flight was complete.), disc. rev. denied, 357 N.C. 251, 582 S.E.2d 271 (2003); Westbrooks v. Bowes, 130 N.C. App. 517, 503 S.E.2d 409 (1998) (The defendant conceded immediate notice but contendedprejudice by the surviving spouse's filing of a claim a year late. The court remanded for a finding of prejudice because the Commission's award failed to address it.); Hill v. Bio-Gro Systems, 73 N.C. App. 112, 326 S.E.2d 72 (1985) (The employee told his supervisor about the accident within a week, but had not suffered any pain and was unaware of his injury. The Court found the defendant was not prejudiced in the delay.); Sanderson v. Northeast Construction Co., 77 N.C. App. 117, 334 S.E.2d 392 (1985) (The employer was on constructive notice because it received a doctor's bill for plaintiff's injury within a month. The Court found no prejudice in the delay.); see also Chilton v. School of Medicine,45 N.C. App. 13, 262 S.E.2d 347 (1980) (The plaintiff was not barred by failure to notify the employer within thirty days where school faculty had personal knowledge of the plaintiff's injury as it happened.).
Here, plaintiff failed to immediately and timely report his alleged 28 October 1999 injury to defendants until July 2001, more than twenty months after the accident. No precedent has allowed a reasonable excuse for a twenty month delay. Under N.C. Gen. Stat. § 97-22, plaintiff's failure to provide notice "immediately on the occurrence of an accident" which caused his alleged injuries bars his workers' compensation claim.
B. Reasonable Excuse
Plaintiff's failure to timely report the accident places the burden on him to provide a "reasonable excuse" for his delay. TheCommission must find and be "satisfied that the employer has not been prejudiced." N.C. Gen. Stat. § 97-22.
The Commission concluded plaintiff's "fear losing his job " was a reasonable excuse for his unduly delayed notification to defendants of his injuries. The majority remands to the Full Commission because "the full Commission made no findings of fact showing that [plaintiff] feared retaliation if he timely reported his injury" and whether this "fear" was a reasonable excuse. Id.; Lawton v. County of Durham, 85 N.C. App. 589, 592-93, 355 S.E.2d 158, 160 (1987) (The Commission did not address the employee's allegation that he did not "realize the nature and seriousness of his injury").
Defendants argue plaintiff failed to give and cannot provide a reasonable excuse for his prejudicial failure to provide written notice to his employer within thirty days. I agree. "The burden is on the employee to show a 'reasonable excuse.'" Jones v. Lowe's Companies, 103 N.C. App. 73, 75, 404 S.E.2d 165, 166 (1991) (quoting Lawton,85 N.C. App. at 592, 355 S.E.2d at 160) (Two months after the injury, the employee gave oral notice and sought treatment. Three months after injury, the employee gave written notice. The Court found a reasonable excuse because the plaintiff did not know he was hurt). All prior cases recognized a "reasonable excuse" as either "'a belief that one's employer is already cognizant of the accident . . .' or '[where] the employee does not reasonably know of the nature, seriousness, or probable compensable character of his injury and delays notification onlyuntil he reasonably knows . . . .'" Id. Undisputed facts show plaintiff cannot justify his failure of notice under either exception to excuse his noncompliance with the statute.
1. Employ
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