Gregory v. W.A. Brown & Sons

JACKSON, Judge

concurring in part, dissenting in part.

I concur in the majority opinion except as to its holding that defendant-employer was not prejudiced by plaintiffs failure to submit written notice of her injury within the thirty-day period mandated by North Carolina General Statutes, section 97-22. As to that portion of the majority opinion, I must respectfully dissent.

While I recognize that there is some divergence of opinion surrounding this issue, see Booker v. Duke Med. Ctr., 297 N.C. 458 , 256 S.E.2d 189 (1979); Richardson v. Maxim Healthcare/ Allegis Grp., 188 N.C. App. 337 , 657 S.E.2d 34 (2008); Legette v. Scotland Mem’l Hosp., 181 N.C. App. 437 , 640 S.E.2d 744 (2007), rev. denied, 362 N.C. 177 , 658 S.E.2d 273 (2008); Chavis v. TLC Home Health Care, 172 N.C. App. 366 , 616 S.E.2d 403 (2005), appeal dismissed, 360 N.C. 288 , 627 S.E.2d 464 , (2006); Watts v. Borg Warner Auto., Inc., 171 N.C. App. 1 , 613 S.E.2d 715 , aff'd, 360 N.C. 169 , 622 S.E.2d 492 (2005); Davis v. Taylor-Wilkes Helicopter Serv., 145 N.C. App. 1 , 549 S.E.2d 580 (2001); Lakey v. United States Airways, 155 N.C. App. 169 , 573 S.E.2d 703 (2002), rev. denied, 357 N.C. 251 , 582 S.E.2d 271 (2003); Westbrooks v. Bowes, 130 N.C. App. 517 , 503 S.E.2d 409 (1998); Jones v. Lowe’s Cos., 103 N.C. App. 73 , 404 S.E.2d 165 (1991); Sanderson v. Northeast Construction Co., 77 N.C. App. 117 , 334 S.E.2d 392 (1985); Chilton v. School of Medicine, 45 N.C. App. 13 , 262 S.E.2d 347 (1980), I believe section 97-22 requires the Industrial Commission to make findings of fact and conclusions of law concerning whether an employee’s failure to file written notice of the accident within thirty days of the accident prejudiced the employer. I do not believe this Court may infer a lack of prejudice when the Commission has not addressed that issue specifically.

Though there are opinions from this Court that may be interpreted as supporting a per se rule of no prejudice under section 97-22 *112 when an employer had actual notice of the employee’s accident, see Legette, 181 N.C. App. at 448 , 640 S.E.2d at 752 ; Davis, 145 N.C. App. at 11 , 549 S.E.2d at 586 ; Sanderson, 77 N.C. App. at 123 , 334 S.E.2d at 395 , I believe the weight of North Carolina law requires the Commission to make a conclusion of law stating that the employer was not prejudiced by the employee’s failure to file within the thirty day mandate, and to support that conclusion with adequate findings of fact.

Section 97-22 specifically states in relevant 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 (2008) (emphasis added). The burden is on the employer to prove prejudice. Richardson, 188 N.C. App. at 346 , 657 S.E.2d at 40 (citation omitted). The Commission is required to make findings of fact concerning issues upon which the granting or denial of compensation depends. Id. (citation omitted) (emphasis added). I am in agreement with previous opinions of this Court which require: 1) a separate inquiry into the issue of prejudice, and 2) appropriate findings of fact and conclusions of law in support of the Commission’s ruling on that issue. See Id.; Westbrook, 130 N.C. App. at 528-29 , 503 S.E.2d at 417 .

In light of the confusion engendered by seemingly conflicting opinions from the Court of Appeals regarding this issue, it is particularly useful to consult the only North Carolina Supreme Court opinion addressing the section 97-22 prejudice issue. In Booker , the Supreme Court held that the employer had waived the issue of section 97-22 notice, because it had failed to raise the issue before the Commission, and could not raise it for the first time on appeal. Booker, 297 N.C. at 482 , 256 S.E.2d at 204 . Although not decided on the prejudice issue, the Supreme Court “[found] that a claim for compensation under the Act is barred if the employer is not notified within 30 days of the date the claimant is informed of the diagnosis “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.” Id. at 480-81 , 256 S.E.2d at 203 (emphasis added). The Court then noted that there were no findings of fact by the Commission that the employee’s failure to notify the employer within thirty days was “excusable and non *113 prejudicial.” Id. at 481 , 256 S.E.2d at 203 (emphasis added). The Court stated that “it would be unrealistic [under the circumstances in that case] to assume that [the employer] did not immediately receive notice [of the employee’s injury,]” and went on to add:

The purpose of the notice-of-injury requirement is two-fold. It allows the employer to provide immediate medical diagnosis and treatment with a view to minimizing the seriousness of the injury, and it facilitates the earliest possible investigation of the circumstances surrounding the injury. Had appellees squarely presented the issue of notice at the hearing before the Commission, it could have conducted an inquiry in accordance with G.S. 97-22 to determine whether or not [the employer] was prejudiced by the lack of notice. To allow an employer to raise the issue for the first time on appeal deprives the claimants of the benefits of that determination and could easily lead to a denial of compensation in a case where the facts would justify a finding of no prejudice.

Id. at 481-82 , 256 S.E.2d at 204 (emphasis added). Inherent in this reasoning is that even when an employer has actual notice of an employee’s injury, inquiry into the issue of prejudice at the Commission level is proper, and indeed necessary, for the insurance of a just outcome pursuant to the requirements of section 97-22.

In the instant case, not only did the Commission fail to make any findings of fact to support a conclusion that defendant-employer was not prejudiced by plaintiff’s failure to give written notice within thirty days of the accident, there is in fact no conclusion of law addressing this issue in the Commission’s opinion and award. The Commission’s findings of fact must support its conclusions of law, and its conclusions of law must support its award. Allen v. Roberts Elec. Contrs., 143 N.C. App. 55, 64 , 546 S.E.2d 133, 140 (2001). In the instant case, there are neither sufficient findings nor conclusions to support the Commissions award, because the necessary element of lack of prejudice, as required under section 97-22, simply has not been addressed.

Though our review of the Commission’s conclusions is de novo, we may not usurp the jurisdiction of the Commission by inferring findings and conclusions where the Commission has been silent. “The Full Commission is charged with a duty ‘to make detailed findings of fact and conclusions of law with respect to every aspect of the case before it.’ ” Bolick v. ABF Freight Sys., Inc., 188 N.C. App. 294, 300 , 654 S.E.2d 793, 797 (2008) (citation ommitted); see also Vieregge *114 v. N.C. State University, 105 N.C. App. 633, 637-38 , 414 S.E.2d 771, 773-74 (1992); Morgan v. Thomasville Furniture Industries, Inc., 2 N.C. App. 126 , 162 S.E.2d 619 (1968).

In light of the plain language of section 97-22, the reasoning in our Supreme Court’s opinion in Booker , and the Commission’s complete lack of consideration of the prejudice issue in its opinion and award, I would remand to the Commission for findings of fact and conclusions of law addressing the issue of prejudice as required by section 97-22.