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IN THE SUPREME COURT OF NORTH CAROLINA
FILED: 29 JANUARY 2010
ANDREA GREGORY, Employee
W.A. BROWN & SONS, Employer,
PMA INSURANCE GROUP, Carrier
Appeal pursuant to N.C.G.S. § 7A-30(2) from the
decision of a divided panel of the Court of Appeals, 192 N.C.
App. 94, 664 S.E.2d 589 (2008), affirming an opinion and award
entered by the North Carolina Industrial Commission on 11 May
Heard in the Supreme Court on 1 April 2009.
DeVore, Acton, & Stafford, P.A., by William D. Acton,
Jr., for plaintiff-appellee.
Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by M.
Duane Jones, for defendant-appellants.
This case involves a claim under the Workers’
Compensation Act for disability and medical payments due to a
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.
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
-2findings 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
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
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
-3doctor 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
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
Throughout this process, the doctors’ examinations were
limited because plaintiff would complain of severe pain during
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-
-4existing [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
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
-5and did not describe the incident at work, although she advised
that her job involved heavy lifting.”
In addition, the deputy
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
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.
-6Plaintiff appealed the deputy’s opinion and award to
the Full Commission, and defendants cross-appealed.
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’
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
-7excused 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
The Full Commission also found that Cordts “failed to
ask specific questions regarding the cause of plaintiff’s
injury,” “did not take proper action to assess whether or not
plaintiff’s injury was, in fact, work related,” and that “there
is no evidence that Ms. Cordts spoke, as she should have, with
either [plaintiff’s team leader] or [plaintiff’s supervisor] to
determine if plaintiff’s supervisors had actual knowledge of a
work-related injury or incident involving plaintiff.”
plaintiff’s visit to an orthopedic surgeon following her meeting
with Cordts, the Full Commission found that plaintiff did, in
fact, tell the surgeon that she had been injured on the job.
Full Commission made no findings that plaintiff failed to
describe the workplace accident during her neurosurgical
evaluation or that she repeatedly denied to defendants that her
back condition was due to a work-related injury.
Most importantly, the Full Commission reversed the
deputy’s conclusion that “[d]efendants were prejudiced by the
delay in receiving written notice” of the accident.
Full Commission made no findings of fact or conclusions of law
with respect to the issue of prejudice to defendants.
plaintiff’s failure to comply with the notice requirement of
N.C.G.S. § 97-22, the Full Commission simply concluded:
defendants had actual knowledge of plaintiff’s work-related
-8injury, plaintiff’s failure to give written notice of her claim
did not bar her claim for compensation.”
The Full Commission remanded the matter 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 findings on the issues of (1) the extent of
plaintiff’s disability; (2) the amount of indemnity benefits due
plaintiff; and (3) the extent of medical compensation due
Defendants sought immediate review, but the Court of
Appeals dismissed their interlocutory appeal.
After remand, a
deputy commissioner entered an opinion and award in the case on 4
Defendants appealed, and on 11 May 2007, the Full
Commission entered an opinion and award in which it stated:
Full Commission’s Opinion and Award of January 18, 2005 is
incorporated by reference as if fully set forth herein.”
Full Commission concluded that “[p]laintiff was totally disabled
from her compensable specific traumatic incident from October 16,
2001, and continuing to May 31, 2005,” and ordered defendants to
pay plaintiff temporary total disability compensation for that
The Full Commission reserved for future
determination the issue of “the extent of plaintiff’s disability,
if any, after May 31, 2005.”
Defendants appealed the Full Commission’s opinion and
A divided panel of the Court of Appeals affirmed, holding
that the Full Commission’s conclusion that Brown & Sons had
actual knowledge of plaintiff’s injury was supported by findings
of fact, which were in turn supported by competent evidence.
-9Gregory v. W.A. Brown & Sons, 192 N.C. App. 94, 106, 664 S.E.2d
589, 596 (2008).
Unlike the Full Commission, the Court of
Appeals then addressed the issue of prejudice, with the majority
“In light of this actual knowledge, we also hold that
Defendant-Employer was not prejudiced by Plaintiff’s failure to
provide written notice of her injury within thirty days.”
The dissenting judge questioned the
majority’s decision to “infer a lack of prejudice when the
Commission has not addressed that issue specifically,” 192 N.C.
App. at 111, 664 S.E.2d at 599 (Jackson, J., dissenting in part),
and 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 this Court on the basis of the dissenting
opinion in the Court of Appeals.
We begin by observing a significant incongruity between
the findings of fact made by the deputy and the findings of fact
made by the Full Commission.
We have long held that the Full
Commission is the ultimate fact finder in a workers’ compensation
case and that its determinations of credibility are conclusive.
Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 413
Here, however, while the deputy specifically found that
plaintiff actively denied to defendant’s representative that her
injury was work related, the Full Commission made no related
finding of its own either accepting or rejecting this finding by
Instead, the Full Commission implicitly required
-10defendant to ascertain that plaintiff’s injuries were work
Because we need not resolve this anomaly to decide this
case, we leave for another day the issue whether a finding by a
deputy remains effective if that finding is not addressed either
directly or indirectly by the Full Commission.
Section 97-22 of the General Statutes deals with notice
by an injured employee to the employer, while section 97-23 deals
with the contents of written notice.
Section 97-22 provides:
Every injured employee or his
representative shall immediately on the
occurrence of an accident, or as soon
thereafter as practicable, give or cause to
be given to the employer a written notice of
the accident, and the employee shall not be
entitled to physician’s fees nor to any
compensation which may have accrued under the
terms of this Article prior to the giving of
such notice, unless it can be shown that the
employer, his agent or representative, had
knowledge of the accident, or that the party
required to give such notice had been
prevented from doing so by reason of physical
or mental incapacity, or the fraud or deceit
of some third person; but 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.G.S. § 97-22 (2007) (emphases added).
Section 97-23 provides:
The notice provided in the foregoing
section [G.S. 97-22] shall state in ordinary
language the name and address of the
employee, the time, place, nature, and cause
of the accident, and of the resulting injury
or death; and shall be signed by the employee
or by a person on his behalf, or, in the
event of his death, by any one or more of his
dependents, or by a person in their behalf.
-11No defect or inaccuracy in the notice
shall be a bar to compensation unless the
employer shall prove that his interest was
prejudiced thereby, and then only to such
extent as the prejudice.
Said notice shall be given personally to
the employer or any of his agents upon whom a
summons in civil action may be served under
the laws of the State, or may be sent by
registered letter or certified mail addressed
to the employer at his last known residence
or place of business.
Id. § 97-23 (2007) (brackets in original).
It is clear from these sections that, in enacting the
Workers’ Compensation Act, the General Assembly was concerned to
avoid prejudice to employers resulting from insufficient notice
of their employees’ accidents.
It is equally clear that the
legislature wished to prevent unnecessary disputes, such as
occurred in the instant case, regarding whether notice of an
accident was given and what that notice might have contained.
The General Assembly sought to resolve these concerns by
requiring employees to put notice of their accidents in writing,
to include certain vital information therein, and to submit such
notice in a timely fashion to an appropriate representative of
Id. §§ 97-22, -23.
The legislature also recognized, however, that
employees would not always give written notice in perfect
compliance with the statutes.
The General Assembly therefore
provided that an employee who fails to give the employer written
notice of an accident within thirty days can still receive
compensation based on that accident if “[(1)] reasonable excuse
is made to the satisfaction of the Industrial Commission for not
giving such notice and [(2)] the Commission is satisfied that the
-12employer has not been prejudiced thereby.”
Id. § 97-22.
two-pronged test eschews a preference for form over function
while simultaneously ensuring that workers’ compensation benefits
will only be payable when there is at least substantial
compliance with the purposes of the written notice requirement.
This Court has previously read section 97-22 to mean
that the plaintiff in a case under the Workers’ Compensation Act
is not entitled to recover unless he can show
that he has complied with the provisions of
the statute in respect to the giving of a
notice, or has shown reasonable excuse to the
satisfaction of the Industrial Commission for
not giving such notice and the Commission is
satisfied that the employer has not been
Singleton v. Durham Laundry Co., 213 N.C. 32, 36, 195 S.E. 34, 36
(1938) (emphasis added) (applying N.C. Code § 8081(dd) (1935),
recodified as N.C.G.S. § 97-22 pursuant to Act of Feb. 1, 1943,
ch. 15, sec. 3, 1943 N.C. Sess. Laws 13, 13-14).
states, “It is the duty of the Commission to make . . . specific
and definite findings upon the evidence reported . . .
particularly when there are material facts at issue.”
35, 195 S.E. at 35.
Id. at 34-
This Court in Singleton ultimately found
error in the Commission’s failure to make findings of fact on the
“controverted issue” of the plaintiff’s compliance with the
statutory provisions regarding written notice, or alternatively,
on the issues of reasonable excuse and lack of prejudice.
36, 195 S.E. at 36.
The principles set forth in section 97-22 and
elucidated in Singleton were recently reiterated in Watts v. Borg
Warner Automotive, Inc., 171 N.C. App. 1, 613 S.E.2d 715, aff’d
-13per curiam, 360 N.C. 169, 622 S.E.2d 492 (2005).
In Watts, the
Commission awarded compensation despite a lack of timely written
notice after concluding that the plaintiff-employee had a
reasonable excuse for not giving written notice of his accident
and that the defendant-employer was not prejudiced by the delay.
Id. at 5, 613 S.E.2d at 719.
The Court of Appeals stated that
due to the plaintiff-employee’s failure to give timely “written
notice,” section 97-22 allowed compensation only if the failure
of notice was reasonably excused and the defendant-employer was
Id. at 4, 613 S.E.2d at 718 (citation omitted).
Although the Commission had made conclusions of law on these
issues, the Court of Appeals held the Commission failed to
support those conclusions adequately and remanded for additional
findings of fact.
Id. at 6, 613 S.E.2d at 719 (citations
In so holding, the Court of Appeals rightly did not
suggest that this analysis applies only when the defendantemployer lacked actual notice of the accident.
subsequently affirmed the Court of Appeals in a per curiam
360 N.C. 169, 622 S.E.2d 492.
A careful reading of section 97-22 confirms that these
prior decisions represent proper applications of that statute.
Section 97-22 begins by establishing a presumptive requirement of
written notice of accidents as a prerequisite to compensation.
The statute goes on to provide that an employee who fails to give
such written notice may still be entitled to physician’s fees and
compensation “which may have accrued . . . prior to the giving of
[written] notice” if the employer had actual knowledge of the
N.C.G.S. § 97-22 (emphasis added).
portion of the statute is then set off by a semicolon.
language following the semicolon initially provides that “no
compensation shall be payable unless such written notice is given
within 30 days after the occurrence of the accident or death.”
Id. (emphasis added).
In other words, the language after the
semicolon applies to all workers’ compensation benefits,
regardless of whether they accrue before or after the giving of
Section 97-22 then provides that the requirement
of written notice within thirty days after the accident will be
waived only if “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
Thus, when the employee fails to provide written
notice of the accident within thirty days, “no compensation shall
be payable” unless the Commission is satisfied both that the
delay in written notice was reasonably excused and that the
employer was not prejudiced.
According to the statute’s
plain language, these two factors must be found regardless of
whether the employer has actual knowledge of the accident.
Requiring findings of fact and conclusions of law on
the issue of prejudice is consistent with section 97-22, with
Singleton and Watts, and with this Court’s recent decision in
Richardson v. Maxim Healthcare/Allegis Group, 362 N.C. 657, 669
S.E.2d 582 (2008), reh’g denied, 363 N.C. 260, 676 S.E.2d 472
In Richardson, the plaintiff-employee failed to give
written notice of her accident within thirty days.
Id. at 658-
-1559, 669 S.E.2d at 584.
It was uncontested that the defendants in
that case had actual notice of the plaintiff’s accident, and in
light of that actual notice, the Commission concluded that the
defendants were not prejudiced by the delay in written notice.
Id. at 661, 669 S.E.2d at 585.
This Court agreed, concluding in
light of Richardson’s particular facts “that the Commission’s
findings and conclusions were adequate.”
Id. at 662, 669 S.E.2d
We indicated in Richardson that the plaintiff was not
required to give her employer written notice of her accident
under the circumstances of the actual notice in that case.
at 658, 669 S.E.2d at 583 (stating that written notice was not
necessary “when the employer has actual notice of [the
employee’s] on-the-job injury, as the employer had here”
The actual notice the employer had in
Richardson is different from Brown & Sons’ actual notice in
several significant respects.
The employer in Richardson made no
efforts to mitigate the employee’s injuries and failed to
investigate the circumstances of her accident despite the
employer’s “aware[ness] of plaintiff’s injuries and medical
treatments based on her regular communications.”
S.E.2d at 586.
Id. at 662, 669
By contrast, in the instant case, the Full
Commission found that the doctor who initially treated plaintiff
did not view her as a possible workers’ compensation patient and
made no record of plaintiff’s report of injury.
Commission also found that Pam Cordts in human resources
“believed that [plaintiff’s injury] was something that had
-16occurred outside of work,” in part because plaintiff “did not
report it as a workers’ compensation claim, didn’t allude to it
being a workers’ comp claim.”
Furthermore, the employee in
Richardson was involved in an automobile accident, which was a
discrete occurrence resulting in relatively certain injuries.
this case, on the other hand, plaintiff had been experiencing
back pain for approximately six months when her accident occurred
and sought workers’ compensation after she “aggravated her
preexisting degenerative condition.”
The timing of plaintiff’s
injury was uncertain both because of the discrepancy in the
evidence as to the time and place of the injury and because
plaintiff continued reporting for work after her accident.
result of plaintiff’s actions, initial attempts by physicians to
diagnose plaintiff’s problem and determine whether it was work
related were inconclusive.
The foregoing distinctions accentuate the most
important factual difference between Richardson and the instant
case, which concerns whether the parties disputed the issue of
In Richardson, “[t]he defendants acknowledge[d]
the plaintiff’s same-day notification of the accident,” id. at
660, 669 S.E.2d at 585, and there was no indication in the record
of any dispute as to whether the contents of the plaintiff’s
notification were sufficient to prevent prejudice to the
defendants, see N.C.G.S. § 97-23 (setting forth the necessary
contents of written notice under N.C.G.S. § 97-22).
in this case, the issue of actual notice was a primary point of
contention at the hearing level that engendered irreconcilable
-17findings by the deputy and the Full Commission, respectively.
The result we reached in Richardson was proper in light of the
defendants’ failure in that case to argue that they did not
receive actual notice sufficient to prevent them from being
Richardson demonstrates how the facts of a
particular case can justify a determination by the Full
Commission that an employer had actual notice sufficient to
obviate written notice, even in the absence of a specific finding
Nevertheless, as a general rule, when a workers’
compensation plaintiff has not given written notice of the
accident within thirty days thereafter, the plaintiff cannot
receive any compensation unless the Commission makes proper
findings and conclusions with respect to the issues of reasonable
excuse and prejudice to the employer.
In the case sub judice, it is undisputed that plaintiff
failed to provide written notice until she filed her workers’
compensation claim nearly four months after her accident.
under section 97-22, plaintiff can receive no workers’
compensation benefits unless the Commission concludes as a matter
of law that the delay in written notice was reasonably excused
and that Brown & Sons was not prejudiced.
Because the Full
Commission’s opinion contains no conclusion that Brown & Sons was
not prejudiced, that opinion is an insufficient basis upon which
to award compensation to plaintiff.
A mere conclusion that Brown & Sons was not prejudiced,
however, would not render the Full Commission’s opinion and award
To enable the appellate courts to perform their duty
-18of determining whether the Commission’s legal conclusions are
justified, the Commission must support its conclusions with
sufficient findings of fact.
Pardue v. Blackburn Bros. Oil &
Tire Co., 260 N.C. 413, 415-16, 132 S.E.2d 747, 748-49 (1963).
The Commission is not required to make a
finding as to each detail of the evidence or
as to every inference or shade of meaning to
be drawn therefrom. But specific findings of
fact by the Commission are required. These
must cover the crucial questions of fact upon
which plaintiff’s right of compensation
depends. If the findings of fact of the
Commission are insufficient to enable the
Court to determine the rights of the parties
upon the matters in controversy, the
proceeding must be remanded to the end that
the Commission make proper findings.
Id. at 416, 132 S.E.2d at 749 (emphasis added) (citations
While the following example is provided for guidance
and is not intended to limit either deputies or the Full
Commission, findings of fact to the effect that an employer had
actual knowledge within thirty days after an employee’s accident,
and that the actual knowledge included such information as the
employee’s name, the time and place of the injury or accident,
the relationship of the injury to the employment, and the nature
and extent of the injury, could support a legal conclusion that
the employer was not prejudiced by the delay in written notice.
This Court has previously provided similar direction as
to the “crucial questions of fact” that underlie legal
conclusions regarding reasonable excuse and lack of prejudice.
In Booker v. Duke Medical Center, we held that an employer had
waived its right to appeal the issue of notice by failing to
raise that issue before the Commission.
297 N.C. 458, 481-82,
-19256 S.E.2d 189, 204 (1979).
In so holding, we noted that if the
employer had raised the notice issue before the Industrial
Commission, it would have been appropriate for the Commission to
“conduct an inquiry in accordance with G.S. 97-22,” id., and
make findings of fact with respect to whether the lack of notice
“was excusable and nonprejudicial,” 297 N.C. at 481, 256 S.E.2d
We also stated:
requirement is two-fold.
“The purpose of the notice-of-injury
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
Id. at 481, 256 S.E.2d at 204 (citing 3 A. Larson,
Workmen’s Compensation Law § 78.20 (1976)).
Findings of fact to
the effect that these purposes of the notice requirement were
vindicated despite the lack of timely written notice of an
employee’s accident could likewise support a legal conclusion
that the employer was not prejudiced by the delay in written
Not every instance of actual notice will satisfy the
statutory requirements of reasonable excuse and lack of
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 unless it concludes as a matter of law that the
absence of such notice is reasonably excused and that the
employer has not been prejudiced.
Further, because the right to
compensation of an employee who did not give timely written
-20notice depends on the Commission’s conclusions on these legal
issues, the Commission must support those conclusions with
appropriate findings of fact as detailed above.
Pardue, 260 N.C.
at 416, 132 S.E.2d at 749.
As observed previously, it is undisputed in this case
that plaintiff failed to provide written notice until she filed
her workers’ compensation claim nearly four months after her
Therefore, the Full Commission erred in awarding
benefits to plaintiff without concluding that defendants were not
prejudiced by the delay and supporting such a conclusion with
appropriate findings of fact.
In addition, we note that N.C.G.S. §§ 97-22 and 97-23
place the burden of notice on the employee, not the employer.
its opinion and award, the Full Commission found that Pam Cordts
in human resources “failed to ask specific questions regarding
the cause of plaintiff’s injury” and “did not take proper action
to assess whether or not plaintiff’s injury was, in fact, work
related,” and that “there is no evidence that Ms. Cordts spoke,
as she should have, with either [plaintiff’s team leader] or
[plaintiff’s supervisor] to determine if plaintiff’s supervisors
had actual knowledge of a work-related injury or incident
Thus, assuming without
deciding that plaintiff stated to Cordts that the injury was not
work related, the Full Commission’s analysis incorrectly placed
upon defendant the burden to disprove plaintiff’s denial that her
injury was work related.
The Commission may not shift the burden
of notice from the employee to the employer and then use the
-21resulting findings as the factual basis for a conclusion that
defendants were not prejudiced by plaintiff’s failure to give
timely written notice of her accident.1
Cf. Jacobs v. Safie Mfg.
Co., 229 N.C. 660, 661-62, 50 S.E.2d 738, 739 (1948) (holding
that the burden of notice did not shift to employer after
employee requested a meeting with employer’s superintendent and
employee’s sister told the superintendent that employee had been
injured on the job).
In enacting N.C.G.S. § 97-22, the General Assembly
expressed its intention that an employee who has an accident and
does not timely notify the employer in writing should not receive
compensation based on that accident unless the Industrial
Commission is satisfied that the lack of timely written notice
was reasonably excused and that the employer was not prejudiced.
Thus, we hold that, when the employee does not give timely
written notice as required by section 97-22, regardless of
whether the employer had actual notice of the accident, the
Industrial Commission cannot award compensation unless it (1)
concludes as a matter of law that the lack of timely written
notice was reasonably excused and that the employer was not
We are cognizant that certain sections of the Workers’
Compensation Act place burdens on employers rather than
employees. Sections 97-18 and 97-92, however, apply to employers
that have knowledge of employees’ “injuries,” not employers with
knowledge of employees’ “accidents.” N.C.G.S. §§ 97-18, -92
(2007). Unlike “accident,” “injury” is a defined term under the
Workers’ Compensation Act, meaning “only injury by accident
arising out of and in the course of the employment.” Id. § 972(6) (2007). An employer’s notice of an employee’s “accident,”
standing alone, does not necessarily trigger any statutory duties
for the employer.
-22prejudiced and (2) supports those conclusions with appropriate
findings of fact.
The Full Commission in this case erred in awarding
benefits to plaintiff without concluding that defendants were not
prejudiced by plaintiff’s failure to give written notice within
thirty days after her accident and without supporting such a
conclusion with appropriate findings of fact.
reverse the decision of the Court of Appeals as to the issue
raised by the dissenting opinion in that court.
issues addressed by the Court of Appeals are not before this
Court, and its decision as to those issues remains undisturbed.
This case is remanded to the Court of Appeals for further remand
to the Industrial Commission with instructions to enter findings
of fact and conclusions of law regarding the issue of prejudice
in a manner not inconsistent with this opinion.
REVERSED IN PART AND REMANDED.
No. 447A08 - Gregory v. W.A. Brown & Sons
Justice HUDSON dissenting.
We squarely decided the question presented here in our
recent, unanimous decision in Richardson v. Maxim
Healthcare/Allegis Group, 362 N.C. 657, 669 S.E.2d 582 (2008).
Despite no change to the governing statutory framework, the
majority would essentially overrule Richardson just one year
later, while claiming not to do so, in order to reach a
particular outcome here.
By this decision the majority adds
nothing but confusion and inconsistency to our own jurisprudence2
and strays from the proper role and approach of this Court.
such, I respectfully dissent.
The sole issue presented to this Court on appeal is whether
a defendant-employer’s actual knowledge of a plaintiff-employee’s
work-related injury satisfies the notice-of-injury requirement
under N.C.G.S. § 97-22, obviating the need for findings of fact
as to any alleged prejudice.
In our decision in Richardson we
unanimously held that, under N.C.G.S. § 97-22, “[w]hen 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.”
Id. at 663, 669 S.E.2d at 586.
The majority here maintains that we somehow limited the
holding of Richardson to “the unique circumstances of the actual
notice in that case.”
Even a cursory reading of that opinion
clearly illustrates that we attached no such conditions to our
The General Assembly could, if it so desired, quickly
eliminate any confusion by clarifying the language of N.C.G.S. §
97-22, which has not been amended since it originally passed in
-2statement of the law.
If the majority has decided to overrule
Richardson, by now “[r]equiring findings of fact and conclusions
of law on the issue of prejudice,” regardless of whether the
employer has actual knowledge or notice of the injury, the Court
should do so directly and avoid creating unnecessary confusion in
the law for employers, employees, and the Industrial Commission
regarding which types of actual knowledge are sufficient and
which are not.
Providing such certainty is fundamental to our
It is, then, an established rule to abide by former
precedents, stare decisis, where the same points come
up again in litigation, as well to keep the scale of
justice even and steady, and not liable to waver with
every new judge’s opinion, as also because, the law in
that case being solemnly declared and determined what
before was uncertain, and perhaps indifferent, is now
become a permanent rule, which it is not in the breast
of any subsequent judge to alter or swerve from
according to his private sentiments; he being sworn to
determine, not according to his private judgment, but
according to the known laws and customs of the land-not delegated to pronounce a new law, but to maintain
and expound the old one--jus dicere et non jus dare.
McGill v. Town of Lumberton, 218 N.C. 586, 591, 11 S.E.2d 873,
876 (1940) (citations and quotation marks omitted); see also
Bacon v. Lee, 353 N.C. 696, 712, 549 S.E.2d 840, 851-52 (“A
primary goal of adjudicatory proceedings is the uniform
application of law.
In furtherance of this objective, courts
generally consider themselves bound by prior precedent, i.e., the
doctrine of stare decisis.” (citing Payne v. Tennessee, 501 U.S.
808, 827, 115 L. Ed. 2d 720, 736-37 (1991) (“Stare decisis is the
preferred course because it promotes the evenhanded, predictable,
and consistent development of legal principles, fosters reliance
on judicial decisions, and contributes to the actual and
-3perceived integrity of the judicial process.”), and Bulova Watch
Co. v. Brand Distribs. of N. Wilkesboro, Inc., 285 N.C. 467, 472,
206 S.E.2d 141, 145 (1974) (observing that stare decisis
“promotes stability in the law and uniformity in its
application”))), cert. denied, 533 U.S. 975, 150 L. Ed. 2d 804
Indeed, the distinction the majority attempts to draw
between the facts of Richardson and those presented here
demonstrates the need for a straightforward, easily applied rule
such as the one enunciated just one year ago in Richardson.
majority goes to great lengths in its attempts to find a material
difference between the actual knowledge of the employer in
Richardson and that of the employer here.
These efforts ignore
the fundamental reality that, for purposes of our appellate
review of an Industrial Commission opinion and award, there is no
meaningful difference between the “uncontested” actual knowledge
in Richardson and the Commission’s finding of fact and conclusion
of law that defendant-employer here had actual notice of
Because that finding and conclusion were not
the basis of the dissent in the Court of Appeals, they are
binding on us on appeal, and the degree to which they were
contested is irrelevant to our review.
See State ex rel. Cooper
v. Ridgeway Brands Mfg., LLC, 362 N.C. 431, 436, 666 S.E.2d 107,
111 (2008) (“‘Where the sole ground of the appeal of right is the
existence of a dissent in the Court of Appeals, review by the
Supreme Court is limited to a consideration of those questions
which are . . . specifically set out in the dissenting opinion as
-4the basis for that dissent . . . . ’” (quoting N.C. R. App. P.
16(b); accord State v. Hooper, 318 N.C. 680, 681-82, 351 S.E.2d
286, 287 (1987))).
Notwithstanding decades of case law on both stare decisis
and our proper standard of review concerning findings of fact and
conclusions of law that are binding on appeal, the majority here
indulges defendant-employer’s improper efforts to relitigate once
again the question of actual notice.3
While offering the
disclaimer that such detail is offered only to demonstrate that
“the issue of actual notice was a primary point of contention at
the hearing level,” the majority’s subsequent analysis reveals
that they simply disagree with the Full Commission’s finding.
bolster their position, the majority even recites the findings
and conclusions of the deputy commissioner, purportedly to show
that the issue “engendered irreconcilable findings by the deputy
and Full Commission, respectively.”
Of course, these findings
are not “irreconcilable”; they have indeed been reconciled and
determined--by the Full Commission, in its proper statutory role
as the ultimate fact finder in worker’s compensation cases.
The majority’s analysis can only be characterized as
precisely the type of reweighing of evidence that our statutes
and case law explicitly disallow:
On appeals from the Industrial Commission, the
Commission’s findings of fact must be sustained if
there is competent evidence in the record to support
them. Lawrence v. Hatch Mill, 265 N.C. 329, 144 S.E.2d
3 (1965). This is so even if there is evidence which
would support a contrary finding, because “courts are
In fact, we specifically denied defendant-employer’s
petition for discretionary review on that issue.
-5not at liberty to reweigh the evidence and to set aside
the findings of the Commission, simply because other
inferences could have been drawn and different
conclusions might have been reached.” Rewis v.
Insurance Co., 226 N.C. 325, 330, 38 S.E.2d 97, 100
Hill v. Hanes Corp., 319 N.C. 167, 172, 353 S.E.2d 392, 395
(1987); see also N.C.G.S. § 97-86 (2007) (“The award of the
Industrial Commission . . . shall be conclusive and binding as to
all questions of fact . . . .”); Anderson v. Lincoln Constr. Co.
265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965) (“The Workmen’s
Compensation Act, G.S. 97-86, vests the Industrial Commission
with full authority to find essential facts.
The Commission is
the sole judge of the credibility of the witnesses and the weight
to be given their testimony.
The courts may set aside findings
of fact only upon the ground they lack evidentiary support.
court does not have the right to weigh the evidence and decide
the issue on the basis of its weight.” (citations omitted));
Johnson v. Erwin Cotton Mills Co., 232 N.C. 321, 322, 59 S.E.2d
828, 829 (1950) (holding that, because “[t]he evidence permits
the inferences therefrom which were drawn by the Commission,
though other inferences appear equally plausible,” “[t]he courts
are not at liberty to reweigh the evidence because different
conclusions might have been reached.” (citations omitted));
Riddick v. Richmond Cedar Works, 227 N.C. 647, 648, 43 S.E.2d
850, 851 (1947) (“Where the record is such as to permit either
finding [a compensable or non-compensable injury], the
determination of the Industrial Commission is conclusive on
appeal.” (citations omitted)); Johnson v. Asheville Hosiery Co.,
199 N.C. 38, 41-42, 153 S.E. 591, 593 (1930) (holding that, when
-6there is evidence to support a finding by the Commission,
“whether the Appellate Court agrees with the conclusion of the
Commission or not, the finding of such fact is conclusive, by
express declaration of the statute”).
Indeed, the bulk of the majority opinion concentrates on
whether plaintiff’s actual notice of her injury to defendantemployer was somehow sufficient to trigger defendant-employer’s
duties under N.C.G.S. § 97-92 to keep a record of the injury and
file a report with the Industrial Commission.
from the actual question at hand is a classic straw man, as that
issue has already been definitively decided and is not before us
Moreover, the majority’s emphasis and reliance for
its holding on the extent to which the issue of actual notice was
disputed at trial impermissibly allow defendants yet another bite
at the apple--their third, at least--regarding this issue, which
has been conclusively decided in plaintiff’s favor.
This case presents us with the Commission’s finding and
conclusion that defendant-employer had actual notice of
plaintiff’s work-related injury when she immediately reported it
to her team leader, received a back brace from her supervisor,
and was sent by her supervisor to human resources.
Commission further concluded that “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
Given these binding findings and
conclusions, the sole question before us is whether, as a matter
-7of law, the Full Commission is required under N.C.G.S. § 97-22 to
make findings regarding prejudice when a defendant-employer has
actual knowledge of a plaintiff-employee’s injury.
part, the statute provides:
Every injured employee or his representative shall
immediately on the occurrence of an accident, or as
soon thereafter as practicable, give or cause to be
given to the employer a written notice of the accident,
. . . unless it can be shown that the employer, his
agent or representative, had knowledge of the accident,
. . . but 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
N.C.G.S. § 97-22 (2007) (emphasis added).
Notably, in Richardson
we analyzed N.C.G.S. § 97-22 and observed that “in enacting
N.C.G.S. § 97-22, the General Assembly did not intend to require
an injured worker to give written notice when the employer has
actual notice of her on-the-job injury, as the employer had
362 N.C. at 658, 669 S.E.2d at 583.
Here, even though
the employer had immediate knowledge, and failed to carry out its
own statutory duty to investigate, plaintiff also gave detailed
written notice less than four months later, when she filed her
Form 18 Notice of Accident to Employer and Claim of Employee for
Workers’ Compensation Benefits.
In Richardson we explicitly discussed both the requirements
under N.C.G.S. § 97-22 and the potentially prejudicial effect of
a lack of notice:
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
-8an 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. The second clause of N.C.G.S. § 97-22,
following the semicolon, applies to those cases in
which written notice is required because the employer
has no actual notice of the accident. It explains that
an employee may be excused from even that requirement
by providing a reasonable excuse for failing to give
notice and by showing that the employer has not been
prejudiced. Here, the employer’s immediate actual
notice of plaintiff’s injury by accident satisfied the
purposes of section 97-22 . . . . Moreover, although we
now hold it was not required to do so, the Commission
specifically concluded that the employer here suffered
no prejudice . . . .
Id. at 663-64, 669 S.E.2d at 586-87 (emphases added) (emphasis
Thus, as established in Richardson, if a defendant-employer
has actual knowledge of a plaintiff-employee’s work-related
injury, N.C.G.S. § 97-22 does not require the employee to provide
written notice or the Full Commission to make explicit findings
about prejudice, or the lack thereof, to the defendant-employer.
Certainly, it is logical that, if a defendant-employer has actual
knowledge of an injury, the Full Commission has no need to be
“satisfied that the employer has not been prejudiced” by the
employee’s “not giving such notice,” N.C.G.S. § 97-22, as there
can be no prejudice due to lack of knowledge when there is, in
fact, no lack of knowledge.4
This result is also entirely
Following this logic, I note the absurdity of the
majority’s disposition here, to once again remand this case to
the Full Commission “with instructions to enter findings of fact
and conclusions of law regarding the issue of prejudice,”
concerning an injury that occurred more than eight years ago.
The Commission has already found and concluded that
defendant-employer had actual notice of the injury. Now, the
majority would require the Commission to enter yet another
opinion and award–-its third in this case, not including that of
the deputy commissioner–-to enter a finding that would
-9consistent with the purpose of the notice statute.
See 7 Arthur
Larson & Lex K. Larson, Larson’s Workers’ Compensation Law ch.
126, at 126-1 (Dec. 2007) [hereinafter Larson’s Workers’
Compensation Law] (“Since the purpose of the notice requirement
is to enable the employer to protect itself by prompt
investigation and treatment of the injury, failure to give formal
notice is usually no bar if the employer had actual knowledge or
informal notice sufficient to indicate the possibility of a
compensable injury . . . .”); id. § 126.03[a] (“The present
tendency is to excuse lack of notice whenever the employer
acquired actual knowledge of the accident, no matter how that
knowledge was acquired.”); see also J. Maynard Keech, Workmen’s
Compensation in North Carolina 1929-1940, at 49 (1942) (“When
delay of notice beyond thirty days is excused by the Commission
because the employer was not prejudiced, . . . or when the
employer had knowledge of the accident or death, the employee . .
. is not barred from compensation.” (emphasis added)); id. app. A
at 174 (“Employee or representative must report immediately by
written notice to employer or agent (unless these had knowledge
of fact) the facts of injury or death.” (emphasis added) (summary
of accident reporting provisions of N.C. Workmen’s Compensation
This analysis likewise conforms with the standard practice
in the majority of jurisdictions throughout the country
concerning the possible prejudicial effects of failure to comply
essentially amount to “defendant-employer was not prejudiced by a
lack of notice because defendant-employer did have notice.” A
remand is an unnecessary waste of time and resources.
-10with the notice-of-injury requirement.
See Larson’s Workers’
Compensation Law § 126.04, at 126-16 (“The requirement [of
notice] is no mere technicality.
It serves a specific function
in protecting the legitimate rights of the employer . . . .
Accordingly, there is no lack of cases in which compensation
claims have foundered on the rock of prejudice to the employer
due to noncompliance with the notice provision.” (emphasis
added)); see also Booker v. Duke Med. Ctr., 297 N.C. 458, 481,
256 S.E.2d 189, 204 (1979) (observing that the notice-of-injury
requirement “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.”
North Carolina courts have also followed this practice:
the dissenting opinion in the Court of Appeals noted, that court
has held in numerous prior opinions that actual knowledge of an
injury negates any requirement to make a finding regarding
Gregory v. W.A. Brown & Sons, 192 N.C. App. 94, 111-
12, 664 S.E.2d 589, 599 (2008) (Jackson, J., dissenting in part)
(referring to such a holding in Legette v. Scotland Mem’l Hosp.,
181 N.C. App. 437, 448, 640 S.E.2d 744, 752 (2007), appeal
dismissed and disc. rev. denied, 362 N.C. 177, 658 S.E.2d 273
(2008), and citing Davis v. Taylor-Wilkes Helicopter Serv., Inc.,
145 N.C. App. 1, 11, 549 S.E.2d 580, 586 (2001), and Sanderson v.
Ne. Constr. Co., 77 N.C. App. 117, 123, 334 S.E.2d 392, 395
(1985)); see also Richardson v. Maxim Healthcare/Allegis Grp.,
-11188 N.C. App. 337, 358-60, 657 S.E.2d 34, 47-48 (Wynn, J.,
dissenting in part) (discussing Jones v. Lowe’s Cos., 103 N.C.
App. 73, 76-77, 404 S.E.2d 165, 167 (1991), and Chavis v. TLC
Home Health Care, 172 N.C. App. 366, 378, 616 S.E.2d 403, 413
(2005), appeal dismissed, 360 N.C. 288, 627 S.E.2d 464 (2006)),
aff’d in part, rev’d in part, 362 N.C. 657, 669 S.E.2d 582
Likewise, the Court of Appeals majority in this case
quoted Lakey v. U.S. Airways, Inc., in which an earlier panel
more recently held that, “[f]ailure of an employee to provide
written notice of her injury will not bar her claim where the
employer has actual knowledge of her injury,” 155 N.C. App. 169,
172, 573 S.E.2d 703, 706 (2002) (citations omitted), disc. rev.
denied, 357 N.C. 251, 582 S.E.2d 271 (2003), as well as the older
case of Chilton v. Bowman Gray School of Medicine, 45 N.C. App.
13, 18, 262 S.E.2d 347, 350 (1980).
Moreover, the case relied on by the majority, Singleton v.
Durham Laundry Co., 213 N.C. 32, 195 S.E. 34 (1938), did not
involve the factual situation presented here, namely, an employer
who had actual knowledge of the employee’s injury.
Singleton, “[t]he record further shows that at the same time the
defendants denied liability, for that the matter was never
reported, the employer had no knowledge that the accident existed
until the notice was received from the Industrial Commission.”
Id. at 33-34, 195 S.E. at 35 (emphasis added).
the language from Singleton quoted by the majority, that an
employee “is not entitled to recover unless he can show that he
has complied with the provisions of the statute in respect to the
-12giving of a notice,” uses an indefinite article, referring to “a
notice,” suggesting that either actual knowledge or written
notice would be sufficient to satisfy the statutory requirement.
Similarly, contrary to the majority’s assertion that “[t]he
principles set forth in section 97-22 and elucidated in Singleton
were recently reiterated in Watts v. Borg Warner Automotive,
Inc., 171 N.C. App. 1, 613 S.E.2d 715 (2005),” we issued no
written opinion in that case, instead simply affirming per curiam
a decision by the Court of Appeals in a case that did not
implicate the question of actual knowledge but only involved the
employee’s delay in providing written notice.
622 S.E.2d 492 (2005) (per curiam).
See 360 N.C. 169,
This Court has, in fact,
concluded explicitly that an employer’s actual knowledge obviates
the need for written notice: we did so one year ago in
As we noted there, our decision was in keeping with
the numerous Court of Appeals opinions outlined above, the
prevailing practice in jurisdictions around the country, and the
purpose of the notice requirement.
See Richardson, 362 N.C. at
663, 669 S.E.2d at 586 (“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
If a defendant-employer has actual knowledge of an injury,
as it did here, yet itself fails to take action either to
“minimiz[e] the seriousness of the injury” or to “investigat[e] .
. . the circumstances surrounding the injury,” Booker, 297 N.C.
at 482, 256 S.E.2d at 204, then any prejudice it suffers due to
-13that failure cannot be attributed to the plaintiff-employee.
prejudicial effect is therefore irrelevant to the Full
Commission’s evaluation of the employee’s claim for workers’
Cf. Larson’s Workers’ Compensation Law § 126.04
(“Once the record shows that the required notice has not been
given, the fatal effect of this showing must be offset by
definite findings showing the kind of excuse or lack of prejudice
that will satisfy the statute.” (emphasis added)).
Finally, this interpretation of N.C.G.S. § 97-22 is also in
keeping with our long-standing directive that the Worker’s
Compensation Act must be liberally construed to effectuate its
purpose of providing compensation to employees injured during the
course and within the scope of their employment.
Essick v. City
of Lexington, 232 N.C. 200, 208, 60 S.E.2d 106, 112 (1950); see
also Keller v. Elec. Wiring Co., 259 N.C. 222, 225, 130 S.E.2d
342, 344 (1963) (“The Compensation Act requires that it be
liberally construed to effectuate the objects for which it was
passed--to provide compensation for workers injured in industrial
accidents.”); Thomas v. Raleigh Gas Co., 218 N.C. 429, 433, 11
S.E.2d 297, 300 (1940) (“It is a familiar rule that the terms of
the Workmen’s Compensation Act must be liberally construed and
liberally applied.” (citations omitted)).
This liberal construction prevents the sort of denial of
benefits engaged in by the majority here, namely, “upon
technical, narrow and strict interpretation” of the Act, in
contravention of its purpose.
Graham v. Wall, 220 N.C. 84, 90,
16 S.E.2d 691, 694 (1941); see also Hall v. Thomason Chevrolet,
-14Inc., 263 N.C. 569, 577, 139 S.E.2d 857, 862 (1965) (“In the
absence of other than technical prejudice to the opposing party,
the liberal spirit and policy, of the Compensation Act should not
be defeated or impaired by a too strict adherence to procedural
niceties.” (citations and quotation marks omitted)); Johnson, 199
N.C. at 40, 153 S.E. at 593 (“It is generally held by the courts
that the various Compensation Acts of the Union should be
liberally construed to the end that the benefits thereof should
not be denied upon technical, narrow, and strict
Thus, our history of liberal construction has
been in favor of the claimant.
See, e.g., Derebery v. Pitt Cty.
Fire Marshall, 318 N.C. 192, 199, 347 S.E.2d 814, 819 (1986)
(“This liberal construction in favor of claimants comports with
the statutory purpose of allocating the cost of work-related
injuries first to industry and ultimately to the consuming
public.” (citing Petty v. Associated Transp., Inc., 276 N.C. 417,
173 S.E.2d 321 (1970) and Vause v. Vause Farm Equip. Co., 233
N.C. 88, 63 S.E.2d 173 (1951))).
Here, the Full Commission both found as fact and concluded
as a matter of law that defendant-employer had immediate actual
knowledge of plaintiff’s work-related injury, on the day that it
Even though plaintiff’s supervisor provided plaintiff
a back brace, referred her to human resources, and knew that
plaintiff was unable to return to her job for a substantial
period thereafter, defendants failed to investigate the claim, as
required by statute, or to take any action to mitigate the
effects of the injury.
As such, the notice-of-injury requirement
-15under N.C.G.S. § 97-22 was satisfied, and under our holding in
Richardson, the Full Commission was not required to make any
additional findings about prejudice, or the lack thereof, to
The majority opinion attempts to have it both ways: claim
that it is consistent with Richardson by improperly limiting that
holding to its facts, while simultaneously turning that holding
on its head by requiring the Commission to make findings and
conclusions on prejudice “regardless of whether the employer had
actual notice of the accident.”
Even worse, the majority’s
discussion of what kind of actual notice is “sufficient” and
their so-called “test” for the same create uncertainty and
confusion in the law regarding the degree to which actual
knowledge must be disputed, or when such knowledge might obviate
the need for written notice.
I would abide by stare decisis and apply our recent,
unanimous decision in Richardson and the proper standard of
review to the Full Commission’s findings of fact.
Thus, I would
affirm the Court of Appeals decision upholding the Full
Commission’s opinion and award.
Justice TIMMONS-GOODSON joins in this dissenting opinion.