Clark v Goodyear Tire And Rubber Co., et al

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA11-717 NORTH CAROLINA COURT OF APPEALS Filed: 6 December 2011 KENNETH R. CLARK, Plaintiff, v. North Carolina Industrial Commission I.C. No. 580989 THE GOODYEAR TIRE & RUBBER CO., Employer, and LIBERTY MUTUAL INSURANCE GROUP, Carrier, Defendants. Appeal by plaintiff from Opinion and Award entered January 2011 by the North Carolina Industrial Commission. 31 Heard in the Court of Appeals 14 November 2011. Kathleen G. Sumner, for plaintiff-appellant. Young Moore and Henderson P.A., by Julia E. Angela Farag Craddock, for defendants-appellees. Dixon and MARTIN, Chief Judge. Plaintiff-employee, Kenneth Clark, appeals from an Opinion and Award by Commission ) affirm. the North denying his Carolina workers Industrial Commission compensation claim. ( the We -2Plaintiff contends he sustained an injury to his right shoulder when he fell over a railing at work on 13 April 2005. Plaintiff alleges he informed his supervisor of his injury, but did not go to the employee dispensary or fill out a report of injury form while at work. absence citing plaintiff a returned Instead, plaintiff took a leave of non-occupational to work on medical 11 condition. October 2005, he When again represented he was out of work for a non-occupational injury, and did not fill out a report of injury form at work until 15 November 2005. On 2 December 2005, plaintiff filed a Form 18 claim for workers compensation. Defendants Goodyear Tire & Rubber Co. and Liberty Mutual Insurance Group ( defendants ) did not file Form 61 denying plaintiff s claim until 27 May 2009. Plaintiff requested a hearing before the Commission, and the matter was assigned to a deputy commissioner and scheduled for hearing on 21 October 2009. At the hearing, plaintiff sought to introduce testimony of two of his coworkers, Ronald Bailey and William Horne, regarding statements he allegedly made to them on 13 April 2005. testimony on hearsay defendants motion. commissioner issued Defendants moved to strike this grounds, and the Commission granted After evaluating the evidence, the deputy an Opinion and Award denying plaintiff s -3claim. Plaintiff then appealed to the Full Commission, which found, inter alia: 39. [T]he . . . evidence does not establish that Plaintiff sustained an injury to his right shoulder at work on April 13, 2005. . . . . 41. Plaintiff has failed to establish a reasonable excuse for the lack of timely written notice. The Full Commission concluded the evidence did not show a causal connection between plaintiff s symptoms and the alleged injury, nor a reasonable excuse for his lack of timely written notice, and denied plaintiff s claim. Plaintiff now appeals to this Court, challenging the Commission s conclusion that he did not provide a reasonable excuse for his failure to give timely written notice and its exclusion of his lay witness testimony regarding the existence and notice of his injury. _________________________ Plaintiff first contends the Commission erred in concluding he did not provide a reasonable excuse for his failure to give timely written notice. Plaintiff fails to argue, however, that the Commission erred in finding his injury is not compensable. -4 The function of all briefs required or permitted . . . is to define clearly the issues presented to the reviewing court and to present the arguments and authorities upon which the parties rely in support of their [positions]. 28(a). N.C.R. App. P. Issues not presented in a party s brief, or in support of which no reason or argument is stated, will be taken as abandoned. N.C.R. App. P. 28(b)(6). Findings of fact which are left unchallenged by the parties on appeal are presumed to be supported by competent established on appeal. evidence and are conclusively Chaisson v. Simpson, 195 N.C. App. 463, 470, 673 S.E.2d 149, 156 (2009). Plaintiff sufficient fails argument to in present his brief a specific issue contesting the finding regarding medical causation. makes only two statements which or make a Commission s In his brief, plaintiff mention medical causation. First, plaintiff states that the evidence is clear that this was an injury by accident to his right shoulder, and that it clearly meets the injury by accident requirement . . . . Second, he contends that all the medical evidence in this case supports causation and as such, [he] has met his burden proof. These statements alone are not sufficient to define clearly medical causation as an issue before the court. of N.C.R. -5App. P. 28(a). plaintiff s Therefore, injury is established on appeal. the not Commission s compensable is finding that conclusively Since his injury is not compensable, the Commission s finding that plaintiff did not provide a reasonable excuse for his untimely notice does not require reversal of the Commission s Opinion and Award. Plaintiff next contends the Commission erred in striking the testimony hearsay. of two of his lay witnesses as inadmissible We disagree. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted. Stat. § 8C-1, Rule 801 (2009). N.C. Gen. Although our Court has held the rules of evidence do not strictly apply in workers compensation cases, hearsay is generally inadmissible compensation cases in North Carolina. in workers See, e.g., Wooten v. Newcon Transp., Inc., 178 N.C. App. 698, 703, 632 S.E.2d 525, 529 (2006). Hearsay evidence is not competent to establish plaintiff s injury arose out of employment or was sustained in the course of employment. Plyler v. Charlotte Country Club, 214 N.C. 453, 455, 199 S.E. 622, 623 (1938). -6It is undisputed that plaintiff s alleged statements to his coworkers Bailey and Horne were made at work, outside of court. However, plaintiff statements testifying to contends [explain] witness, not he the to sought to subsequent prove the introduce conduct truth of of the the the matter asserted, i.e., that he injured himself at work and told his supervisor about it that day on 13 April 2005. Bailey and Horne each testified they spoke with plaintiff regarding his fall, but neither could definitively say they saw plaintiff fall or speak with his supervisor. were being offered Plaintiff s argument that the statements to show the subsequent conduct of the testifying witness is misplaced, as the subsequent conduct of Bailey and Horne is neither at issue, nor relevant to any issue in this case. Thus, the proffered statements are hearsay, and the did Commission not err by striking testimony regarding plaintiff s statements to Horne and Bailey as hearsay. We have considered plaintiff s remaining arguments and have concluded they are without merit and therefore, we decline to address them. Affirmed. Judges ELMORE and STEPHENS concur. Report per Rule 30(e).

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