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Watts v. Borg Warner Automotive6/21/2005
er Knew of Injury
The Commission erred in concluding as a matter of law that plaintiff gave a reasonable excuse for his failure to notify defendants of the accident. We all agree no findings of fact show the employer was "cognizant of the accident." Id. The Commission found: (1) "plaintiff did not report a work-related injury to defendant-employer[;]" (2) plaintiff "did not mention anything about an injury at work to [the human relations coordinator;]" and (3) "when [plaintiff] complet the forms regarding disability associated with the neck surgery," he affirmatively "checked the box stating that the condition was not the result of a work-related illness or injury." (Emphasis added). The Commission's findings of fact directly conflict with his employer being "cognizant of the accident" to excuse plaintiff's failure to timely report. Id.
Plaintiff not only failed to report his accident to defendants but affirmatively represented his injury was not related to his employment. Plaintiff cannot meet his burden of proving a reasonable excuse existed for his failure to notify his employer of the accident.
2. Plaintiff was Unaware of Injury
We also all agree the Commission's findings of fact also cannot support a conclusion that plaintiff was unaware "of the nature, seriousness, or probable compensable character of hisinjury." Id.The Commission found plaintiff was injured on 28 October 1999, visited a chiropractor on 1 November 1999, "missed approximately two weeks of work," and was treated by an orthopedic surgeon. Plaintiff sought treatment from his chiropractor within four days of his injuries. Plaintiff was obviously aware of his injuries throughout these visits and knew or should have known of "the nature, seriousness, or probable compensable character of his injury." Jones, 103 N.C. App. at 75, 404 S.E.2d at 166.Plaintiff cannot meet his burden of showing a reasonable excuse by not realizing the "seriousness" of his injuries. Id. Undisputed facts also show plaintiff had previously filed a workers' compensation claim and was aware of his duty to promptly notify his employer.
N.C. Gen. Stat. 97-22 requires that a "reasonable excuse is made to the satisfaction of the Industrial Commission." The Commission's finding of fact stated, plaintiff's "late reporting did not prejudice defendant and plaintiff's failure to timely report the injury is excused." The majority correctly holds the Commission failed to make a finding of fact to support its conclusion that plaintiff had a "reasonable excuse." N.C. Gen. Stat. § 97-22.
Undisputed evidence shows plaintiff cannot provide a reasonable excuse to the Commission for his failure to timely notify defendants of his injury. Plaintiff did not give actual notice to defendants and intentionally misrepresented his accident. Defendants were not "cognizant of the accident" and plaintiff was aware "of the nature, seriousness, or probable compensablecharacter of his injury." See Jones, 103 N.C. App. at 75, 404 S.E.2d at 166.
Plaintiff's actions directly contravene the purpose of the notice requirement in N.C. Gen. Stat. § 97-22. This Court has recognized claims by a plaintiff where timely notice was not given, if the plaintiff was unaware of the serious nature of their injury. See Peagler v. Tyson Foods, Inc., 138 N.C. App. 593, 532 S.E.2d 207 (2000) (The plaintiff filed a claim after thirty days but showed reasonable excuse that doctors mis-diagnosed his injury as a heart attack when the actual injury was a herniated disc and the plaintiff depended on his wife and doctor to notify the defendant of his work-related injuries.).
Here, plaintiff knew of his injuries, immediately sought tre
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