Gregory v. W.A. Brown & Sons, 447A08.
| Decision Date | 29 January 2010 |
| Docket Number | No. 447A08.,447A08. |
| Citation | 363 N.C. 750,688 S.E.2d 431 |
| Court | North Carolina Supreme Court |
| Parties | Andrea GREGORY, Employee v. W.A. BROWN & SONS, Employer, PMA Insurance Group, Carrier. |
DeVore, Acton, & Stafford, P.A., by William D. Acton, Jr., Charlotte, for plaintiff-appellee.
Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by M. Duane Jones, Charlotte, for defendant-appellants.
This case involves a claim under the Workers' Compensation Act for disability and medical payments due to a workplace accident. Plaintiff-employee failed to give the employer written notice of the accident within thirty days after the accident's occurrence as directed by N.C.G.S. § 97-22. The question presented is whether, in order for any compensation to be payable under such circumstances, the Industrial Commission must (1) conclude as a matter of law that the employer has not been prejudiced by the employee's failure to provide timely written notice and (2) support that conclusion with appropriate findings of fact. Because the express language of section 97-22 requires us to answer this question in the affirmative, we reverse in part the decision of the Court of Appeals and remand to that court for further remand to the Industrial Commission for findings of fact and conclusions of law regarding the issue of prejudice.
Plaintiff began working for defendant W.A. Brown & Sons ("Brown & Sons") in June 1999. As of October 2001 plaintiff had been experiencing pain in her lower back for approximately six months and was taking over-the-counter medication for her pain. During the week of 11 October 2001, plaintiff sustained an injury to her lower back while lifting a heavy container at work. Although plaintiff testified before a representative of the Industrial Commission ("the Commission") that the incident occurred on the morning of 11 October 2001, Brown & Sons' time records showed that plaintiff was not at work that morning. Presumably because the precise timing of plaintiff's injury is therefore uncertain, the Commission simply found plaintiff suffered an injury "on an unknown date" during the week of 11 October 2001.
Plaintiff alleged that, immediately after the incident, she reported her injury to Rick Dunaway, her team leader. Dunaway in turn reported the incident to Barry Christy, plaintiff's supervisor, who gave plaintiff a back support belt. Plaintiff worked the remainder of the week. On Sunday 14 October 2001, plaintiff saw a doctor about her back pain. She told the doctor she had been having pain for about six months and described the incident at work. However, because Brown & Sons had not authorized the medical visit, the doctor's office "would not treat [plaintiff] as a possible workers' compensation patient and made no record of her report of injury."
The following Tuesday, plaintiff reported for work but was so visibly impaired by pain that Christy referred her to Pam Cordts in human resources. Plaintiff told Cordts about her pain and inability to work, but she did not then claim that her injury was work related. According to the opinion and award of the Full Commission, Cordts "gave plaintiff paperwork on Family Medical Leave and short-term disability, but did not discuss the possibility of workers' compensation" because she "believed that [plaintiff's injury] was something that had occurred outside of work." Cordts told plaintiff to see a doctor and that "for her own safety she would not be allowed to return to work without a note from the doctor."
During the ensuing year, plaintiff saw an orthopedic surgeon, a neurosurgeon, and a chiropractor and underwent a variety of examinations to determine the nature and cause of her pain. Throughout this process, the doctors' examinations were limited because plaintiff would complain of severe pain during the tests. As a result, the Full Commission found "it was initially difficult for the treating physicians to sort out diagnoses for [plaintiff's] physical problems and to determine the relationship between her symptoms and the injury at work." Based on expert testimony that plaintiff "likely had a pre-existing [sic] back condition at the time of her work-related injury," the Full Commission found that plaintiff "sustained an injury to her back that aggravated her preexisting degenerative condition."
Plaintiff failed to give Brown & Sons written notice of her accident as directed by N.C.G.S. §§ 97-22 and 97-23 until she filed a Form 18, entitled "Notice of Accident to Employer (G.S.97-22) and Claim of Employee or His Personal Representative or Dependents (G.S.97-24)." Plaintiff completed her Form 18 on 1 February 2002, and it was filed with the Commission on 5 February 2002, nearly four months after the claimed accident.
The matter was initially heard before Deputy Commissioner Morgan S. Chapman ("the deputy"), who, on 28 April 2004, entered an opinion and award denying plaintiff's claim for workers' compensation benefits. The deputy made numerous findings of fact, the most pertinent of which are as follows. When Barry Christy, plaintiff's supervisor, gave plaintiff a back support belt on the day of the accident, Christy "was unaware of a specific injury." When Pam Cordts in human resources asked plaintiff about her injury, "plaintiff indicated that she did not know how she had done it and that she had been having back problems for quite a while." After Cordts told plaintiff she would not be allowed to return to work without a doctor's clearance, plaintiff saw a doctor and "stated that the onset of her symptoms was six months previously and that she was not injured on the job." During plaintiff's neurosurgical evaluation on 12 December 2001, "she gave a six-month history of symptoms and did not describe the incident at work, although she advised that her job involved heavy lifting." In addition, the deputy found:
13. Defendants denied this claim since there was no record of an injury at work in plaintiff's medical records and since she had denied that her back condition was related to a work-related injury to Ms. Cordts, to the adjuster, Brian Gray, who spoke with her on November 9, 2001 regarding her short term disability claim, and on the claims forms for the disability benefits.
....
15..... Defendants were prejudiced by the delay in receiving written notice since they otherwise might well have accepted the claim as compensable, but rather allowed plaintiff to pursue disability benefits, for which they would not receive a credit since the benefits were not totally employer funded, since defendants were not able to designate the medical treatment plaintiff would receive and since the treatment which plaintiff obtained was unusually protracted. The fact that the claim was denied was due to plaintiff's own statements to representatives of defendants which gave defendants very good grounds to believe that the back condition was not due to a compensable injury at work.
Based upon these findings of fact, the deputy concluded as a matter of law that "plaintiff sustained an injury by accident arising out of and in the course of her employment with defendant." However, the deputy further concluded that
plaintiff's claim is barred due to her failure to give her employer written notice of the injury within thirty days since she did not have reasonable excuse for the delay and since defendants were prejudiced by it. Defendants did not have actual knowledge of the injury despite the initial verbal report since plaintiff repeatedly thereafter denied that she was injured at work. G.S. § 97-22.
Plaintiff appealed the deputy's opinion and award to the Full Commission, and defendants cross-appealed. The Full Commission reviewed the case and reversed the deputy's opinion and award, entering its opinion and award on 18 January 2005. The Full Commission determined that Brown & Sons did have actual notice of plaintiff's work-related injury and concluded that plaintiff had a reasonable excuse for failing to give Brown & Sons timely written notice of her accident in accordance with N.C.G.S. § 97-22. The Full Commission made the following conclusions of law:
1. On 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 in that she sustained a back injury as the result of a specific traumatic incident of the work assigned.
2. 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.
3. Defendants had actual notice of plaintiff's work-related injury, and resulting workers' compensation claim, (1) when plaintiff immediately reported her injury to her team leader, (2) when plaintiff's supervisor gave her a back support brace so that she could continue working; and (3) when her supervisor sent her to human resources to discuss her injury. Because 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.
4. Even if defendants had not had actual notice, given the nature of plaintiff's injury and her pre-existing back condition, plaintiff's failure to give written notice within 30 days is reasonably excused because plaintiff did not reasonably know of the nature, seriousness, or probable compensable character of her injury until after extensive treatment with Dr. Roy, her treating physician.
(Citations omitted.)
The Full Commission also found that Cordts "failed to ask specific questions regarding the cause of plain...
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