Lawton v. Durham County

355 S.E.2d 158 (1987)

John P. LAWTON, II, Employee/Appellant, v. The COUNTY OF DURHAM, Employer-Appellee (Self-Insured).

No. 8610IC1045.

Court of Appeals of North Carolina.

May 5, 1987.

*159 Archie L. Smith, III, and William J. Riley, Durham, for plaintiff-appellant.

Durham County Atty. Russell Odom by Asst. Co. Atty. James W. Swindell, Durham, for defendant-appellee.

EAGLES, Judge.

By failing to comply with the Rules of Appellate Procedure, plaintiff has subjected his appeal to dismissal. Provisions of Rules 9 and 10 require that exceptions be noted in the record immediately following the particular judicial action complained of, that those exceptions again be set out at the end of the record, and that they be made the subject of stated assignment(s) of error. Rule 28(b)(5) requires that the appropriate exceptions and assignments of error be referred to after each question submitted in the brief. Plaintiff failed to note any exceptions or make any assignments of error. While failure to follow the Rules of Appellate Procedure subjects an appeal to dismissal, Wiseman v. Wiseman, 68 N.C.App. 252, 314 S.E.2d 566 (1984), in our discretion pursuant to Rule 2, we will, nevertheless, address the merits of plaintiff's appeal.

G.S. 97-22 provides that an employee must give written notice to his employer "immediately on the occurrence of an accident, or as soon thereafter as practicable." The statute further provides that:

[N]o 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. G.S. 97-22.

Plaintiff argues that, because of his previous knee problems, he was unaware of the nature and seriousness of his 5 June 1984 injury. Consequently, plaintiff contends that the Commission should have found he had a reasonable excuse for failing to give notice within 30 days of the accident. We find that the Commission's findings of fact are insufficient for us to determine the rights of the parties. Therefore, this case must be remanded.

On the question of whether plaintiff had a reasonable excuse for failing to timely give notice of his accident, the Commission made the following finding of fact:

6. Plaintiff did not give written notice of his injury within 30 days thereafter, nor did his employer have actual notice of the injury. He did not have reasonable excuse for failing to report the injury. It was not reasonable under the circumstances for him to assume that his supervising officers saw him sustain an injury.

It appears that the Commission's conclusion that plaintiff lacked reasonable excuse *160 was based on its finding that it was not reasonable for plaintiff to believe that defendant already had notice of the accident. The Commission's order did not address plaintiff's contention that he had a reasonable excuse because he did not recognize the nature and seriousness of his injury until he was informed that he would have to undergo surgery.

While the Industrial commission is not required to make specific findings of fact on every issue raised by the evidence, it is required to make findings on crucial facts upon which the right to compensation depends. Gaines v. Swain & Son, Inc., 33 N.C.App. 575, 235 S.E.2d 856 (1977). Specific findings on crucial issues are necessary if the reviewing court is to ascertain whether the findings of fact are supported by competent evidence and whether the findings support the conclusion of law. Barnes v. O'Berry Center, 55 N.C.App. 244, 284 S.E.2d 716 (1981). Where the findings are insufficient to enable the court to determine the rights of the parties, the case must be remanded to the Commission for proper findings of fact. Hansel v. Sherman Textiles, 304 N.C. 44, 283 S.E.2d 101 (1981). While a belief that one's employer is already cognizant of the accident may serve as "reasonable excuse" under G.S. 97-22, see Key v. Woodcraft, Inc., 33 N.C.App. 310, 235 S.E.2d 254 (1977), it is not the only basis for establishing reasonable excuse. The question of whether an employee has shown reasonable excuse depends on the reasonableness of his conduct under the circumstances. Where the employee does not reasonably know of the nature, seriousness, or probable compensable character of his injury and delays notification only until he reasonably knows, he has established "reasonable excuse" as that term is used in G.S. 97-22. See generally 3 Larson, The Law of Workmen's Compensation, Section 78.40 (1983). Though plaintiff testified that he did not immediately realize the nature and seriousness of his injury, the Commission made no findings whether, under the circumstances, that constituted a reasonable excuse. Accordingly, this case must be remanded for additional findings.

Alternatively, plaintiff has argued that the 30 day time period in the statute does not begin to run until the employee realizes the nature, seriousness, and compensable character of the injury. A plain reading of the statute requires us to reject that argument. The statute is unambiguous in stating that "no compensation shall be payable unless such written notice is given within 30 days after the occurrence of the accident ..." [emphasis added]. Moreover, in Whitted v. Palmer-Bee Co., 228 N.C. 447, 46 S.E.2d 109 (1948), our Supreme Court rejected that very argument in interpreting the analogous time provision for making a claim under G.S. 97-24.

By cross-appeal pursuant to Rules 10(d) and 28(c) of our Rules of Appellate Procedure, defendant has attempted to challenge the Commission's finding that plaintiff sustained an injury by accident. Although defendant too has failed to set out the applicable exception and make the required assignment of error, since we addressed the merits of plaintiff's appeal, we will address defendant's argument.

Defendant contends that the evidence is inadequate to support the Commission's finding. We disagree. An examination of the record reveals competent evidence to support a finding that plaintiff's injury was the result of an accident arising out of and in the course of his employment. Since findings of fact are conclusive on appeal when supported by competent evidence, Taylor v. Cone Mills, 306 N.C. 314, 293 S.E.2d 189 (1982), defendant's argument is without merit.

Remanded.

JOHNSON and ORR, JJ., concur.