Yingling v. Bank of America

741 S.E.2d 395, 225 N.C. App. 820, 2013 WL 791513, 2013 N.C. App. LEXIS 224
CourtCourt of Appeals of North Carolina
DecidedMarch 5, 2013
DocketNo. COA12-1031
StatusPublished
Cited by7 cases

This text of 741 S.E.2d 395 (Yingling v. Bank of America) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Yingling v. Bank of America, 741 S.E.2d 395, 225 N.C. App. 820, 2013 WL 791513, 2013 N.C. App. LEXIS 224 (N.C. Ct. App. 2013).

Opinion

STROUD, Judge.

Bank of America (“defendant”) appeals from the 3 April 2012 Opinion and Award granting James Yingling (“plaintiff’) compensation for 2006 and 2008 work-related injuries and approving Dr. Joseph Lane as plaintiff’s treating physician. Defendant argues on appeal that plaintiff’s 2006 injury is not compensable because he failed to give written notice without reasonable excuse, that they were prejudiced by the two-year delay, that the Full Commission erred in concluding otherwise, and that the Full Commission’s findings on this issue do not support its conclusions. Defendant further argues that the findings of the Full Commission as to plaintiff’s 2008 injuries are not supported by the evidence and that the Commission erred in approving Dr. Lane as a treating physician. For the following reasons, we hold that the Full Commission’s findings as to the 2006 injury supported its conclusions, that its findings as to the 2008 injury were supported by the evidence, and that the Commission did not err in approving Dr. Lane as a treating physician. Therefore, we affirm the Opinion and Award.

[822]*822I. Introduction

Plaintiff began working for defendant in 2005 as a client manager and a support associate. Plaintiff worked with clients to provide various banking and financial services. In July 2005, plaintiff fell from a ladder in his home’s backyard and injured his back. Plaintiff sought treatment for the injury and was able to engage in normal activity again within a year.

On 29 November 2006, plaintiff had a meeting at work in one of defendant’s buildings. After plaintiff delivered doughnuts and coffee to the morning meeting, he went to move his car to another lot because he had parked in a spot reserved for senior managers. As plaintiff was driving through an intersection, his car was hit by another driver who ran a red light.

Plaintiff contacted his supervisor and the branch manager, who both came to the scene of the accident and helped plaintiff retrieve his items from the vehicle. Plaintiff also reported the accident to his manager in Charlotte. Plaintiff did not file any written notice of the incident with defendant at that time. Later that same day, plaintiff began feeling back pain again and went to Wrightsville Family Practice for treatment. Over the next several months, plaintiff sought treatment for his back pain at a variety of facilities and with several physicians. Despite the treatments, plaintiff continued to experience significant pain through December 2007.

In December 2007, plaintiff visited Dr. Lane at the Hospital for Special Surgery in New York. After speaking with and examining plaintiff, Dr. Lane recommended physical therapy and other conservative treatment to address plaintiff’s continuing back pain. Plaintiff continued to work for defendant throughout this period.

On 13 June 2008 plaintiff slipped and fell on a recently-waxed floor while at work. This fall caused plaintiff “considerable” pain in his back and down his legs. Plaintiff again sought treatment from Dr. Lane, who recommended more invasive treatment, including spinal surgery. Despite a successful surgery, which helped mitigate some of plaintiff’s pain, plaintiff continued to experience considerable discomfort. Plaintiff has not worked for defendant since the 2008 fall.

Plaintiff filed written notice of a claim for the 2008 injury on 1 August 2008 and written notice of a claim for the 2006 injury on 16 October 2008. Defendant denied both claims. The claims were heard by Deputy Commissioner James C. Gillen, who found both claims [823]*823compensable and awarded plaintiff total disability compensation, as well as medical and psychological expenses and attorney’s fees, by Opinion and Award entered 19 September 2011. Defendant appealed to the Full Commission, which found plaintiff’s injuries compensable and granted plaintiff total disability, all medical and psychological care incurred as a result of both injuries, and attorney’s fees by Opinion and Award entered 3 April 2012. Defendant filed written notice of appeal to this Court on 3 May 2012.

II. Compensability of Plaintiff’s Injuries

A. Standard of Review

The standard of review in workers’ compensation cases has been firmly established by the General Assembly and by numerous decisions of this Court. Under the Workers’ Compensation Act, the Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Therefore, on appeal from an award of the Industrial Commission, review is limited to consideration of whether competent evidence supports the Commission’s findings of fact and whether the findings support the Commission’s conclusions of law. This [C]ourt’s duty goes no further than to determine whether the record contains any evidence tending to support the finding.

Richardson v. Maxim Healthcare/Allegis Group, 362 N.C. 657, 660, 669 S.E.2d 582, 584 (2008) (citations, quotation marks, and brackets omitted).

B. 2006 Injury

Defendant argues that plaintiff is not entitled to compensation for his 2006 injury because he failed to provide timely written notice without reasonable excuse and that it was prejudiced by the delay. Plaintiff counters that he gave defendant immediate actual notice of the accident, which constitutes a reasonable excuse for the nearly two-year delay in providing written notice, and that defendant cannot show any prejudice.

As a general rule, to be entitled to recover workers’ compensation benefits, an employee injured in a work-related accident must give the employer written notice of the accident as soon as practicable or “within 30 days after the occurrence of the accident or death, unless reasonable excuse is made to the satisfaction of the Industrial [824]*824Commission for not giving such notice and the Commission is satisfied that the employer has not been prejudiced thereby.” N.C. Gen. Stat. § 97-22 (2009). Our Supreme Court has decided two cases addressing this issue in the past several years — Richardson v. Maxim Healthcare/Allegis Group, 362 N.C. 657, 669 S.E.2d 582 (2008) and Gregory v. W.A. Brown & Sons, 363 N.C. 750, 688 S.E.2d 431 (2010) (Gregory I). In Richardson, the Court held:

“The plain language of section 97-22 requires an injured employee to give written notice of an accident unless it can be shown that the employer, his agent or representative, had knowledge of the accident. When an employer has actual notice of the accident, the employee need not give written notice, and therefore, the Commission need not make any findings about prejudice.”

Richardson, 362 N.C. at 663, 669 S.E.2d at 586 (citations, quotation marks, and emphasis omitted). But in Gregory, the Court noted that

[n]ot every instance of actual notice will satisfy the statutory requirements of reasonable excuse and lack of prejudice. The Industrial Commission is therefore obligated to apply the test in each case in which timely written notice of the accident is lacking, and the Commission cannot award compensation in such a case

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Cite This Page — Counsel Stack

Bluebook (online)
741 S.E.2d 395, 225 N.C. App. 820, 2013 WL 791513, 2013 N.C. App. LEXIS 224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yingling-v-bank-of-america-ncctapp-2013.