Gregory v. Sons, COA10–1521.

• Decision Date: 07 June 2011
• Docket Number: No. COA10–1521.,COA10–1521.
• Court: North Carolina Court of Appeals
• Parties: Andrea GREGORY, Employee/Plaintiff,v.W.A. BROWN & SONS, Employer,PMA Insurance Group, Carrier/Defendants.

713 S.E.2d 68

Andrea GREGORY, Employee/Plaintiff,

v.W.A. BROWN & SONS, Employer,PMA Insurance Group, Carrier/Defendants.

No. COA10–1521.

Court of Appeals of North Carolina.

June 7, 2011.

OPINION TEXT STARTS HERE

Appeal by defendants from opinion and award entered 8 September 2010 by the North Carolina Industrial Commission. Heard in the Court of Appeals 27 April 2011.

DeVore Acton & Stafford, P.A., Charlotte, by William D. Acton, Jr., for plaintiff appellee.

Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., Charlotte, by M. Duane Jones and Neil P. Andrews, for defendant appellants.

McCULLOUGH, Judge.

Defendants appeal from an opinion and award of the North Carolina Industrial Commission finding that defendants were not prejudiced by plaintiff's failure to give written notice of her work injury within 30 days. We affirm.

I. Background

Andrea Gregory (“plaintiff”) began working for W.A. Brown & Sons (“defendant-employer”) in June 1999 as a metal shop worker building industrial walk-in coolers. As of October 2001, plaintiff had been experiencing intermittent lower back pain for approximately six months and was taking an over-the-counter medication for the pain. During the week of 11 October 2001, plaintiff alleged that she was lifting a container of metal pods, weighing approximately 60 pounds, when she heard her back “pop” and experienced a high level of pain in her lower back. Plaintiff immediately dropped the container as a result of the incident, and plaintiff's work partner, Tony Harding (“Harding”) came over to plaintiff to see what was wrong.

Plaintiff alleged that immediately after the incident occurred, she reported her injury to her team leader, Rick Dunaway (“Dunaway”). Dunaway then reported the incident to plaintiff's supervisor, Barry Christy (“Christy”). Christy gave plaintiff a back support brace so that plaintiff could return to work, and Dunaway assisted plaintiff with putting the back support brace on. Plaintiff stated that with the help of the back support brace, she worked the remainder of the day on 11 October 2001, and the next day, Friday, 12 October 2001.

Plaintiff's back pain continued to increase over the weekend, so on Sunday, 14 October 2001, plaintiff saw a doctor about her back pain. Plaintiff informed the doctor that she had been experiencing lower back pain for approximately six months and described the lifting incident that had just occurred at work. Plaintiff was unable to return to work on Monday due to her pain.

Plaintiff reported for work on Tuesday, 16 October 2001, but she was so visibly impaired by pain that Christy told her to go home and referred her to Pam Cordts (“Cordts”) in Human Resources. Plaintiff discussed her back pain with Cordts, and Cordts told plaintiff that for her own safety, she would not be allowed to return to work without a note from the doctor. Cordts told plaintiff she should return to the doctor she had seen on Sunday, “or another physician of her choice,” and helped plaintiff get an appointment by making phone calls on her behalf.

On 5 February 2002, 87 days after the incident, plaintiff filed a Form 18 claiming benefits for her back injury allegedly caused by the specific traumatic incident that occurred on 11 October 2001 while plaintiff was working for defendant-employer. Defendant-employer and its insurance carrier, PMA Insurance Group (collectively, “defendants”), denied plaintiff's claim on the basis that medical evidence did not support an injury by accident within plaintiff's scope of employment and because of plaintiff's “non-cooperation with the workers compensation investigation.” Plaintiff then requested that her claim be assigned for hearing.

A hearing was held on 16 September 2003 before Deputy Commissioner Morgan S. Chapman (“Deputy Commissioner Chapman”), and on 28 April 2004, Deputy Commissioner Chapman entered an opinion and award denying plaintiff's claim for benefits. Deputy Commissioner Chapman concluded that “[o]n an unknown date during the week of October 11, 2001 plaintiff sustained an injury by accident arising out of and in the course of her employment with [defendant-employer].” Deputy Commissioner Chapman also concluded, “[h]owever, plaintiff's claim is barred due to her failure to give [defendant-employer] written notice of the injury within thirty days,” as required by N.C. Gen.Stat. § 97–22 (2009). Both plaintiff and defendants appealed to the Full North Carolina Industrial Commission (“the Commission”).

The Commission reviewed plaintiff's case and filed an opinion and award on 18 January 2005, reversing Deputy Commissioner Chapman's opinion and award. The Commission first concluded that plaintiff “sustained a back injury as the result of a specific traumatic incident of the work assigned” on “an unknown date during the week of October 11, 2001.” In addition, the Commission concluded, “The aggravation or exacerbation of plaintiff's pre-existing back condition as a result of a specific traumatic incident, which has resulted in loss of wage[-]earning capacity, is compensable under the Workers' Compensation Act.” The Commission then concluded that defendants “had actual notice of plaintiff's work-related injury,” and “[b]ecause defendants had actual knowledge of plaintiff's work-related injury, plaintiff's failure to give written notice of her claim did not bar her claim for compensation.” The Commission further concluded that plaintiff had a reasonable excuse for failing to give defendant-employer timely written notice of her accident in accordance with N.C. Gen.Stat. § 97–22. However, the Commission did not make any specific conclusion of law that defendants were or were not prejudiced by plaintiff's failure to give timely written notice.

Subsequently, the case was remanded by the Commission for assignment to a deputy commissioner “for the taking of additional evidence or further hearing, if necessary” and the entry of an opinion and award with additional findings of fact as to the extent of plaintiff's disability, the amount of indemnity owed, and the extent of medical benefits owed to plaintiff. These three issues were heard by Deputy Commissioner John DeLuca (“Deputy Commissioner DeLuca”), whose findings were substantially adopted by the Commission in an opinion and award of benefits to plaintiff filed on 11 May 2007. The Commission also “incorporated by reference” its previous opinion and award filed 18 January 2005. Furthermore, the Commission's 11 May 2007 opinion and award expressly “reserved for future determination” the issue of “the extent of plaintiff's disability, if any, after May 31, 2005,” stating, “The parties may hereafter enter into an Agreement, stipulate to the extent of continuing disability, or either party may present additional evidence to this panel of the Full Commission on this issue.” Defendants appealed the Commission's 11 May 2007 opinion and award to this Court.

On 19 August 2008, this Court addressed the merits of defendants' appeal, and a divided panel of this Court affirmed, holding, inter alia, that the Commission's conclusion that defendant-employer had actual knowledge of plaintiff's injury was supported by findings of fact, which in turn were supported by competent evidence in the record. Gregory v. W.A. Brown & Sons, 192 N.C.App. 94, 106, 664 S.E.2d 589, 596 (2008), rev'd in part, remanded in part, 363 N.C. 750, 688 S.E.2d 431 (2010). The majority held that as a result of defendant-employer's actual knowledge of plaintiff's injury on the date of occurrence, defendant-employer was not prejudiced by plaintiff's failure to provide written notice of her injury within 30 days. Id. However, the dissenting judge disagreed with the majority's decision to “infer a lack of prejudice when the Commission has not addressed that issue specifically.” Id. at 111, 664 S.E.2d at 599 (Jackson, J., dissenting in part). Rather, the dissenting judge would have “remand[ed] to the Commission for findings of fact and conclusions of law addressing the issue of prejudice as required by section 97–22.” Id. at 114, 664 S.E.2d at 601.

Defendants appealed to our Supreme Court based on the split decision, and our Supreme Court then considered the issue of whether the employer's actual knowledge of the work-related accident and injury relieved the Commission from the obligation to make findings of fact and conclusions of law on whether the employer was prejudiced by the employee's failure to provide written notice of the accident within 30 days. Gregory v. W.A. Brown & Sons, 363 N.C. 750, 688 S.E.2d 431 (2010). On 29 January 2010, our Supreme Court reversed the decision of this Court, holding that, when an employee fails to give written notice of the accident to the employer within 30 days as required by N.C. Gen.Stat. § 97–22, regardless of whether the employer had actual notice of the accident, the Commission cannot award compensation to the employee unless the Commission concludes as a matter of law, and supports the conclusions with appropriate findings of fact, that: (1) the lack of timely written notice is reasonably excused, and (2) the employer has not been prejudiced thereby. Gregory, 363 N.C. at 764, 688 S.E.2d at 440. The Court emphasized that these two factors must be found by the Commission regardless of whether the Commission finds the employer had actual notice of the accident. Id. The Court also reiterated this Court's prior holding that there are two purposes for the statutory notice requirement: (1) it allows the employer to provide immediate medical diagnosis and treatment in order to minimize the seriousness of the injury, and (2) it facilitates the earliest possible investigation of the facts surrounding the injury. Id. at 762, 688 S.E.2d at 439. The Court remanded the case to this Court for remand to the Commission in order for the Commission to make findings and conclusions addressing whether defendants were prejudiced by plaintiff's failure to give timely written notice as required by the...