Watts v. Borg Warner Automotive, Inc.

613 S.E.2d 715, 171 N.C. App. 1, 2005 N.C. App. LEXIS 1159

• Court: Court of Appeals of North Carolina
• Decided: June 21, 2005
• Docket: COA04-895
• Status: Published

Opinions

WYNN, Judge.

The Industrial Commission is required to make findings on crucial facts upon which the right to compensation depends. Gaines v. L. D. Swain & Son, Inc., 33 N.C. App. 575, 579, 235 S.E.2d 856, 859 (1977). In this matter, the full Commission made no findings of fact whether, under the circumstances, Plaintiff had a reasonable excuse and the employer was not prejudiced for delay in giving written notice as required by section 97-22 of the North Carolina General Statutes. Additionally, the full Commission failed to make any findings of fact determining causation of the injury. Accordingly, we remand this case for further findings of fact.

Plaintiff David Noble Watts filed two workers’ compensation claims alleging that he injured his lower back on 28 October 1999 and 26 May 2000 while lifting turbos. Mr. Watts filed an additional claim alleging that he injured his cervical spine and right hand and fingers while building turbos on 16 May 2000.

Following the 28 October 1999 injury, Mr. Watts went to a chiropractor, Dr. James Dutton, for back pain and did not report the injury as work-related. Dr. Dutton referred Mr. Watts to Dr. Stewart Harley, an orthopedic surgeon. On 24 November 1999, Dr. Harley saw Mr. Watts for lower back pain. Mr. Watts told Dr. Harley the injury was not a workers’ compensation claim.

From 28 October 1999 until he was terminated on 30 April 2001, Mr. Watts was periodically absent from work and received short-term disability benefits while recovering from back surgery. During this period, Mr. Watts never told his supervisor or human resources that his injury was work-related. Mr. Watts filed four separate weekly indemnity forms for health benefits with Defendant Borg Warner Automotive, Inc., and stated in the four forms that the claims were not the result of a work-related illness or injury. Borg Warner terminated Mr. Watts on 30 April 2001 for failure to comply with its absence policy.

On 3 July 2001, Mr. Watts completed three separate Form 18s giving Borg Warner notice of the accident and claim. Borg Warner denied the claims. The case was heard before Deputy Commissioner Morgan S. Chapman on 11 July 2002. Deputy Commissioner Chapman filed an Opinion and Award denying all claims. Mr. Watts appealed to the full Commission. The full Commission reversed the award with regard to the 28 October 1999 claim number 152657, and awarded Mr. Watts temporary total disability benefits from 28 October 1999 through 27 December 1999 and ordered Borg Warner to pay for related medical expenses and attorney’s fees. Borg Warner appealed the Opinion and Award as it related to claim number 152657.

On appeal, Borg Warner argues that the full Commission erred in awarding Mr. Watts temporary total disability benefits and medical expenses because (1) Mr. Watts’s claim was barred by his failure to timely notify Borg Warner in writing of his injury; and (2) Mr. Watts did not sustain a compensable injury arising out of his employment. Because the full Commission failed to make adequate findings of fact on both issues, we remand this case for further findings of fact.

The standard of review for this Court in reviewing an appeal from the full Commission is limited to determining “whether any competent evidence supports the Commission’s findings of fact and whether the findings of fact support the Commission’s conclusions of law.” Deese v. Champion Int’l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). Our review “ ‘goes no further than to determine whether the record contains any evidence tending to support the finding.’ ” Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (citation omitted). The full Commission’s findings of fact “are conclusive 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 ‘[w]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, and employee 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 brief¹ that his fear of retaliation was the “reasonable excuse” for failing timely to notify Borg Warner in writing.² However, while the full Commission made a finding of fact that the “late reporting did not prejudice defendant and plaintiff’s failure to timely report the injury is excused,” it failed to make findings of fact to support the conclusion that the delay was due to a “reasonable excuse.” Instead, the full Commission made the following conclusion of law which is not supported by adequate findings of fact:

5. Plaintiff stated that he did not report his 28 October 1999 injury because when he had filed a previous workers’ compensation claim in 1991, he was moved to a job with more difficult duties. He believed the employer was trying to make him quit. He also stated that he feared losing his job. We find this to be a reasonable excuse.

While the Industrial Commission is not required to make specific findings of fact on every issue raised by the evidence, it is required to make findings on crucial facts upon which the right to compensation depends. Gaines, 33 N.C. App. at 579, 235 S.E.2d at 859. Specific findings on crucial issues are necessary if the reviewing court is to ascertain whether the findings of fact are supported by competent evidence and whether the findings support the conclusion of law. Barnes v. O’Berry Ctr., 55 N.C. App. 244, 247, 284 S.E.2d 716, 718 (1981). “Where the findings are insufficient to enable the court to determine the rights of the parties, the case must be remanded to the Commission for proper findings of fact.” Lawton v. County of Durham, 85 N.C. App. 589, 592, 355 S.E.2d 158, 160 (1987) (citing Hansel v. Sherman Textiles, 304 N.C. 44, 59, 283 S.E.2d 101, 109-10 (1981)).

Whether an employee has shown 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. We hold that in this case, the full “Commission made no findings of fact showing that Mr. Watts feared retaliation if he timely reported his injury.” As such, the full Commission’s conclusion that a “reasonable excuse” existed under section 97-22 of the North Carolina General Statutes, is not supported by adequate findings of fact. Lawton, 85 N.C. App. at 592-93, 355 S.E.2d at 160. Accordingly, this case must be remanded for additional findings. Additionally, if the full Commission finds these circumstances constitute a reasonable excuse, it must then make sufficient findings regarding whether Borg Warner was prejudiced by the delayed notice.³ See Lakey, 155 N.C. App. at 173, 573 S.E.2d at 706; Pierce, 27 N.C. App. at 278, 218 S.E.2d at 511.

Borg Warner also argues that the full Commission erred in concluding that Mr. Watts sustained a compensable spine injury arising out of his employment. Because the full Commission failed to make adequate findings of fact on causation, we must remand this matter.

The plaintiff in a workers’ compensation case bears the burden of initially proving each and every element of compensability, including causation.⁴ Whitfield v. Lab. Corp. of Am., 158 N.C. App. 341, 350, 581 S.E.2d 778, 784 (2003); Porter v. Fieldcrest Cannon, Inc., 133 N.C. App. 23, 28, 514 S.E.2d 517, 521 (1999). Since the full Commission failed to make any findings of fact determining causation of the injury, we must remand this case for sufficient findings of fact on causation. Lawton, 85 N.C. App. at 592, 355 S.E.2d at 160.

Remanded.

Judge TYSON dissents in a separate opinion. Judge ELMORE concurs in a separate opinion.

1 . We note that Plaintiff-Appellee’s brief exceeded the page limit. N.C. R. App. P. 28Q). Additionally, Plaintiff-Appellee’s “Motion for Waiver of Page Limit to File Plaintiff-Appellee’s Brief’ was denied by this Court by Order dated 23 November 2004. Thus, this Court did not consider that part of Plaintiffs brief that exceeded the allowable page limit.

2 . The dissent asserts that Plaintiff cannot provide a reasonable excuse because “Plaintiff did not give actual notice to defendants and intentionally misrepresented his accident.” After throughly examining the record and transcripts, we find no evidence that Plaintiff concealed or intentionally misrepresented his injury. The record shows that when filling out health insurance forms for time off work due to his back injury, Plaintiff did not include that he was hurt at work. However, while he was filling out the health insurance forms, Plaintiff informed his supervisor, Myra Butler, of the nature and cause of his injury by stating “I did say that, you know, I’d hurt my back lifting the turbochargers last week[.]”

3 . The dissent asserts that since Plaintiff cannot meet either of the two previously established “reasonable excuses,” i.e., that the employer had actual notice or that the employee was unaware of the nature of his injuries, it is unnecessary to remand this case for further findings of fact. However, section 97-22 of the North Carolina General Statutes does not limit what constitutes a reasonable excuse, but instead gives the Industrial Commission discretion to determine if an excuse is reasonable on an individual basis. N.C. Gen. Stat. § 97-22 (“. . . unless reasonable excuse is made to the satisfaction of the Industrial Commission for not giving such notice . . . .” (emphasis added)).

4 . The dissent asserts that “[n]o competent evidence substantiates the required element of the accident causing plaintiffs injury[,]” therefore, the Opinion and Award should be reversed and not remanded. The dissent cites Dr. Bruce Kelly, Plaintiff’s family physician, as testifying that T do not think that his whatever happened at work caused all this ....” Dr. Kelly went on to testify that T think it could have, could have aggravated, accelerated or contributed.”