1. Workers' Compensation_home health nursing assistant_ injury while
traveling_course of employment
Under the Workers' Compensation Act, a traveling employee is in the course of
employment once a personal deviation has been completed and the direct business route has been
resumed. A certified nursing assistant working for a home health care agency had resumed her
direct business route at the time of her accident where she went to the patient's home, the patient
had to leave for about twenty minutes, plaintiff's employer did not permit waiting in the patient's
home when the patient was not there but had no written policy on what to do during the wait,
plaintiff ran an errand, and she was injured as she returned to the patient's home.
2. Workers' Compensation_home health nursing assistant_blackout while
driving_arising out of employment
A car accident arose out of a home health nursing assistant's job, even though her
blackout may have been a contributing cause, because the accident occurred while she was driving
in the course of her employment.
3. Workers' Compensation_average weekly wage_home health nurse_mileage included
Mileage was properly included in the calculation of the average weekly wage of a nursing
assistant who was injured in a car accident on the way to a patient's house. She was performing
her job duties in driving from one house to another, she was not paid an hourly wage while
driving, and there is competent evidence to support the finding that she was paid mileage in lieu of
wages.
4. Workers' Compensation_disability--nursing assistant_capability for sedentary
work_lack of skills
Competent evidence in the record in a workers' compensation hearing supported an
Industrial Commission finding that plaintiff was unable to earn the same wages as before her
injury, either as a certified nursing assistant or in other employment, although she was capable of
sedentary work. Evidence that she had no computer, receptionist, or secretarial skills supported
the finding that looking for sedentary work would have been futile.
5. Workers' Compensation_delayed written notification_employer's actual knowledge
An employer's actual knowledge of a workers' compensation injury prevented prejudice
from any delay in written notification.
6. Workers' Compensation_evidence excluded_discretion of Commission
Determining credibility is the responsibility of the full Commission, and the Commission
does not have to explain its findings by distinguishing credible witnesses and evidence. Here,there was no error in a workers' compensation case where the Industrial Commission excluded
evidence regarding the employer's policies.
Judge TYSON dissenting.
Jones Martin Parris & Tessener Law Offices, PLLC, by J.
Michael Riley and Gregory M. Martin, for plaintiff-appellee.
Young Moore & Henderson, P.A., by J. Aldean Webster, III, for
defendant-appellants.
WYNN, Judge.
Under the Workers' Compensation Act, a traveling employee is
in the course of employment once a personal deviation has been
completed and the direct business route has been resumed. Cauble
v. Soft-Play, Inc., 124 N.C. App. 526, 529, 477 S.E.2d 678, 679
(1996), disc. review denied, 345 N.C. 751, 485 S.E.2d 49 (1997).
In this case, Plaintiff-Employee traveled to a patient's home, left
on a personal errand, and was injured in an automobile accident on
her return to the patient's home. Because the personal errand was
complete and Plaintiff had resumed her business travel route, we
hold that the accident occurred in the course of her employment
making her injury compensable. Accordingly, we affirm the full
Commission's Opinion and Award on this and other issues presented
on appeal.
The evidence from the record on appeal tends to show that
Plaintiff Leigh Ann Chavis, a certified nursing assistant (CNA),worked as a runner for Defendant TLC Home Health Care. As a
runner, Ms. Chavis traveled to multiple patients' homes in a
single day. TLC Home Health Care reimbursed Ms. Chavis for the
mileage she incurred from her home to the first patient's home , to
and from each patient's home, and from her last patient's home to
her home. TLC Home Health Care paid Ms. Chavis an hourly wage only
for the time she spent in-home with the patient and not for the
travel time.
On 26 October 2000, Ms. Chavis drove to her first patient's
home at 8:00 a.m. to perform three-and-a-half hours of work.
However, upon arriving at the home, the patient, Linda Galegos,
informed Ms. Chavis that she was leaving to take care of some
business at school. Ms. Galegos informed Ms. Chavis that she would
be back home in approximately twenty minutes.
TLC Home Health Care had a policy that did not permit Ms.
Chavis to wait in a patient's home when the patient was not there.
But TLC Home Health Care had no written policy on what Ms. Chavis
should have done when a patient told her to wait twenty minutes.
Ms. Chavis testified that, on a previous occasion, Barbara
Locklear, TLC Home Health Care's scheduling supervisor, informed
her to just go get something to eat or just do something till the
time she come (sic) back, but if she's going to be gone more than
an hour or two, you have to go to another client. But Ms.Locklear testified that in that situation Ms. Chavis should have
called TLC Home Health Care to see if she should be immediately
assigned to another patient.
Ms. Chavis told Ms. Galegos that she would meet her back at
her home. Ms. Chavis then drove directly to her father's place of
employment, dropped off his wallet, and drove directly back to Ms.
Galegos's house. While driving back to Ms. Galegos's house, Ms.
Chavis blacked out and ran her car off the road into the side of a
church, sustaining injuries to her right foot. Ms. Chavis's father
contacted Ms. Locklear that day to inform her of the accident.
Ms. Chavis came under the care of George Dawson, III, M.D. for
the injuries to her right foot. Dr. Dawson applied a soft cast,
and Ms. Chavis was unable to walk without crutches for several
months. On 10 November 2000, Dr. Dawson recommended that Ms.
Chavis be out of work for a four-month period. On 6 April 2001,
Dr. Dawson gave her a note to return to working regular duty on 9
April 2001. Before returning to work in April 2001, Ms. Chavis
contacted TLC Home Health Care to inquire about sedentary work but
was told none was available. Nonetheless, Ms. Chavis's contract
was not terminated. Ms. Chavis filed a claim for workers'
compensation which TLC Home Health Care denied. The claim came for
a hearing before Deputy Commissioner Ronnie E. Rowell, who awarded
Ms. Chavis temporary total disability from 26 October 2000 to 9April 2001 and for an additional 43.2 weeks thereafter. TLC Home
Health Care appealed to the full Commission. On 1 April 2004, the
full Commission filed an Opinion and Award affirming Deputy
Commissioner Rowell's award including all travel expenses. TLC
Home Health Care was also ordered to pay all medical expenses and
attorney's fees. TLC Home Health Care appeals from this Opinion
and Award.
___________________________________________
On appeal, TLC Home Health Care argues that the full
Commission erred by concluding that (1) Ms. Chavis's injury arose
out of and in the course of her employment; (2) Ms. Chavis's
average weekly wage should include what she was paid in milage
reimbursement; (3) TLC Home Health Care must provide medical
treatment should it become necessary; (4) Ms. Chavis was
temporarily and totally disabled from 26 October 2000 to 9 April
2001; (5) Ms. Chavis gave notice of her injury to TLC Home Health
Care; and (6) evidence should be excluded. We disagree.
The standard of review for this Court in reviewing an appeal
from the full Commission is limited to determining whether any
competent evidence supports the Commission's findings of fact and
whether the findings of fact support the Commission's conclusions
of law. Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530
S.E.2d 549, 553 (2000). Our review 'goes no further than todetermine whether the record contains any evidence tending to
support the finding.' Adams v. AVX Corp., 349 N.C. 676, 681, 509
S.E.2d 411, 414 (1998) (citation omitted). The full Commission's
findings of fact are conclusive on appeal when supported by
competent evidence, even if there is evidence to support a
contrary finding, Morrison v. Burlington Indus., 304 N.C. 1, 6, 282
S.E.2d 458, 463 (1981), and may be set aside on appeal only when
there is a complete lack of competent evidence to support them[.]
Young v. Hickory Bus. Furniture, 353 N.C. 227, 230, 538 S.E.2d 912,
914 (2000). It is not the job of this Court to re-weigh the
evidence. Adams, 349 N.C. at 681, 509 S.E.2d at 414. Further,
all evidence must be taken in the light most favorable to the
plaintiff, and the plaintiff is entitled to the benefit of every
reasonable inference to be drawn from the evidence. Deese, 352
N.C. at 115, 530 S.E.2d at 553.
[1] First, TLC Home Health Care argues that the full
Commission erred in concluding that Ms. Chavis's accident arose out
of her and in the course of her employment. We disagree.
Under the Workers' Compensation Act, an injury is compensable
only if it is the result of an accident arising out of and in the
course of the employment[.] N.C. Gen. Stat. § 97-2(6) (2004).
Whether an injury arose out of and in the course of employment is
a mixed question of law and fact, and the Industrial Commission'sfindings in this regard are conclusive on appeal if supported by
competent evidence. Culpepper v. Fairfield Sapphire Valley, 93
N.C. App. 242, 247, 377 S.E.2d 777, 780, aff'd per curium, 325 N.C.
702, 386 S.E.2d 174 (1989) (citing Gallimore v. Marilyn's Shoes,
292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977)). The employee must
establish the arising out of and in the course of requirements
to be entitled to compensation. Roberts v. Burlington Indus.,
Inc., 321 N.C. 350, 354, 364 S.E.2d 417, 420 (1988).
TLC Home Health Care argues that Ms. Chavis was not in the
course of her employment when the accident occurred because she
was on a personal errand. The words 'in the course of' refer to
the time, place, and circumstances under which an accident
occurred. The accident must occur during the period and place of
employment. Ross v. Young Supply Co., 71 N.C. App. 532, 536-37,
322 S.E.2d 648, 652 (1984). North Carolina adheres to the rule
that employees whose work requires travel away from the employer's
premises are within the course of their employment continuously
during such travel, except when there is a distinct departure for
a personal errand. Creel v. Town of Dover, 126 N.C. App. 547, 556,
486 S.E.2d 478, 483 (1997); Cauble, 124 N.C. App. at 528, 477
S.E.2d at 679. Ms. Chavis's work required her to continuously travel to and
from different patients' homes. Therefore, she was in the course
of her employment while traveling unless on a personal errand. Id.
Indeed, we cannot agree with the dissent's claim that Ms.
Chavis does not fit into this traveling salesman exception
because she had fixed hours of employment. Ms. Chavis's job duty,
designated runner, required her to work for multiple patients in
a day. She did not have a guarantee of a fixed number of patients
in a day, and was only paid for the actual in-home time with the
patients. Moreover, she did not have fixed work hours, as the
number of patients she worked with in a day varied, which varied
her hours.
Furthermore, TLC Home Health Care had a policy that did not
permit Ms. Chavis to wait at a patient's home when the patient was
not there. On a previous occasion, Ms. Locklear informed Ms.
Chavis to just go get something to eat or just do something till
the time she come back, but if she's going to be gone more than an
hour or two, you have to go to another client. This policy was in
effect to prevent claims of theft against TLC Home Health Care
employees and to comply with government regulations. By leaving
the Galegos home, Ms. Chavis complied with the orders of TLC Home
Health Care and furthered her employer's interests. See Cauble,
124 N.C. App. at 529, 477 S.E.2d at 680 (employee's death was inthe course of employment where his travel, which included eating
in a restaurant, was to further his employer's business and at the
direction of his employer even though his death was caused by his
supervisor's negligent driving while returning to a hotel).
It is well-established that a traveling employee will be
compensated under the Workers' Compensation Act 'for injuries
received . . . while returning to work after having made a detour
for his own personal pleasure.' Cauble, 124 N.C. App. at 529, 477
S.E.2d at 679 (quoting Chandler v. Nello L. Teer Co., 53 N.C. App.
766, 770, 281 S.E.2d 718, 721 (1981), aff'd, 305 N.C. 292, 287
S.E.2d 890 (1982)). Once the deviation has been completed and the
direct business route has been resumed, the injury is compensable.
Creel, 126 N.C. App. at 557, 486 S.E.2d at 483 (the plaintiff's
injury occurred in the course of his employment when on his way
to work the plaintiff stopped off for a drink but had resumed his
travel to work when the accident occurred); Martin v. Georgia-Pac.
Corp., 5 N.C. App. 37, 43-44, 167 S.E.2d 790, 794 (1969) (the
plaintiff's death occurred in the course of his employment where,
although going to see yachts was a personal detour, once he began
to proceed to dinner he had abandoned his personal sight-seeing
mission and was back within the scope of his employment).
As in Creel and Martin, Ms. Chavis had completed her personal
deviation. Ms. Chavis had resumed the direct business route as shewas driving on the fastest route to Ms. Galegos's home. Since Ms.
Chavis had resumed her direct business route after completing her
personal deviation when the accident occurred, the accident
occurred in the course of her employment. Creel, 126 N.C. App.
at 557, 486 S.E.2d at 483.
[2] TLC Home Health Care also argues that the accident did not
arise out of Ms. Chavis's employment because the accident was
caused by her idiopathic condition, not her employment. The words
arising out of the employment refer to the origin or cause of the
accidental injury. Roberts, 321 N.C. at 354, 364 S.E.2d at 420.
[A] contributing proximate cause of the injury must be a risk
inherent or incidental to the employment, and must be one to which
the employee would not have been equally exposed apart from the
employment. Culpepper, 93 N.C. App. at 248, 377 S.E.2d at 781
(emphasis omitted) (citing Gallimore, 292 N.C. at 404, 233 S.E.2d
at 533). Under this increased risk analysis, the causative
danger must be peculiar to the work and not common to the
neighborhood. Gallimore, 292 N.C. at 404, 233 S.E.2d at 532
(citations omitted). Where a plaintiff's job requires him or her
to travel from his or her place of work to various places in the
community, the job exposes the plaintiff to the risk of travel.
Warren v. City of Wilmington, 43 N.C. App. 748, 750, 259 S.E.2d
786, 788 (1979). In this case, Ms. Chavis's job required her to travel to and
from different patients' homes, exposing her to the risk of travel.
This increased travel time is an increased risk inherent to the
employment. Culpepper, 93 N.C. App. at 248, 377 S.E.2d at 781.
However, TLC Home Health Care argues that Ms. Chavis's
accident was caused by her idiopathic condition, i.e., blackout,
and not her increased travel risk. [W]here the accident and
resultant injury arise out of both the idiopathic condition of the
workman and hazards incident to the employment, the employer is
liable. But not so where the idiopathic condition is the sole
cause of the injury. Vause v. Vause Farm Equip. Co., Inc., 233
N.C. 88, 92-93, 63 S.E.2d 173, 176 (1951). The general rule is
that
where an employee falls from a building,
scaffold, ladder, or other place of danger
where his employment places him, the accident,
if it appears to be incident to and a natural
result of a particular risk of the work, may
be said to arise out of the employment, even
though illness or some pre-existing infirmity
may have been a contributing cause of the
fall.
Vause, 233 N.C. at 96, 63 S.E.2d at 179 (citing Rewis v. N.Y. Life
Ins. Co., 226 N.C. 325, 38 S.E.2d 97 (1946); DeVine v. Dave Steel
Co., 227 N.C. 684, 44 S.E.2d 77 (1947); Robbins v. Bossong Hosiery
Mills, Inc., 220 N.C. 246, 17 S.E.2d 20 (1941)). The full Commission found that Plaintiff's October 26, 2000
injury arose out of both her idiopathic condition and the hazards
incident to her employment with defendant-employer. Ms. Chavis
testified that [t]he only thing I remember was I was fixing to hit
the side of the road. I know I was going around a curve, the next
thing I know I was hitting the side of the church. That's the only
thing I can remember. Ms. Chavis had previously described this
incident as having a blackout. But the accident occurred while
Ms. Chavis was driving in the course of her employment. Ms.
Chavis's job duties required her constantly to travel in her car,
increasing her travel risk. Since Ms. Chavis's work required her
to face the increased risk of constant road travel on her job, we
hold that the car accident arose out of her employment, even
though her idiopathic condition may have been a contributing cause.
Vause, 233 N.C. at 96, 63 S.E.2d at 179.
[3] Next, TLC Home Health Care argues that the full Commission
erred in concluding that Ms. Chavis's average weekly wage should
include what she was paid in mileage reimbursement. We disagree.
Section 97-2(5) of the North Carolina General Statutes
provides in pertinent part that [w]herever allowances of any
character made to an employee in lieu of wages are specified part
of the wage contract, they shall be deemed a part of his earnings. N.C. Gen. Stat. § 97-2(5) (2004). On this issue the full
Commission found the following finding of fact:
25. Plaintiff's average weekly wage cannot be
determined based upon the Form 22 wage chart
alone, because it does not reflect what
plaintiff was paid for mileage. Plaintiff's
mileage reimbursement must be included in the
calculation of her average weekly wage because
she was paid mileage in lieu of wages.
Because we are bound by the findings of the full Commission so
long as there is some evidence of record to support them, we must
disagree with TLC Home Health Care's argument. See Morrison, 304
N.C. at 6, 282 S.E.2d at 463. On all forms submitted to the
Industrial Commission, TLC Home Health Care indicated that Ms.
Chavis's average weekly wage was to be determined. TLC Home
Health Care submitted Form 22 to the Industrial Commission
indicating N/A in response to the question: Was this employee
given free rent, lodging, or board or other allowances made in lieu
of wages? But Ms. Chavis testified that she was paid mileage
reimbursement rather than an hourly wage when driving to and from
different patients' houses during the work day. Ms. Locklear
confirmed this payment arrangement. As Ms. Chavis was performing
her job duties while driving from one patient's house to another,
but was not paid an hourly wage during this time, there is
competent evidence to support the finding that Ms. Chavis was paid
mileage in lieu of wages, and the full Commission properly includedthe mileage in her average weekly wage. See, e.g., Shah v. Howard
Johnson, 140 N.C. App. 58, 66, 535 S.E.2d 577, 582 (2000), disc.
review denied, 353 N.C. 381, 547 S.E.2d 17 (2001) (full Commission
properly included the value of the plaintiff's hotel room provided
to him in lieu of wages).
Next, TLC Home Health Care argues that the full Commission
erred in concluding that TLC Home Health Care must provide medical
treatment should it become necessary. TLC Home Health Care failed
to cite any authority in support of this argument in its brief;
therefore, it is deemed abandoned. N.C. R. App. P. 28(b)(6).
[4] Next, TLC Home Health Care argues that the full Commission
erred in concluding that Ms. Chavis was temporarily and totally
disabled from 26 October 2000 to 9 April 2001 because she was
capable of performing sedentary work. We disagree.
To receive compensation under section 97-29 of the North
Carolina General Statutes, a claimant has the burden of proving the
existence of a disability as well as its extent. N.C. Gen. Stat.
§ 97-29 (2004). Section 97-2(9) of the North Carolina General
Statutes defines disability as incapacity because of injury to
earn the wages which the employee was receiving at the time of
injury in the same or any other employment. N.C. Gen. Stat. § 97-
2(9) (2004). Thus, the claimant's burden is to show that because
of injury his earning capacity is impaired. Russell v. Lowes Prod.Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993). The burden
is on the employee to show that he is unable to earn the same wages
he had earned before the injury, either in the same employment or
in other employment. Hilliard v. Apex Cabinet Co., 305 N.C. 593,
595, 290 S.E.2d 682, 683 (1982). Once the burden of disability is
met, there is a presumption that disability continues until 'the
employee returns to work at wages equal to those he was receiving
at the time his injury occurred.' Simmons v. Kroger Co., 117 N.C.
App. 440, 443, 451 S.E.2d 12, 14 (1994) (quoting Watkins v. Cent.
Motor Lines, Inc., 279 N.C. 132, 181 S.E.2d 588 (1971)). The
burden then shifts to the employer to produce evidence that the
claimant is employable. Burwell v. Winn-Dixie Raleigh, Inc., 114
N.C. App. 69, 73, 441 S.E.2d 145, 149 (1994). The employer must
come forward with evidence to show not only that suitable jobs are
available, but also that the [claimant] is capable of getting one,
taking into account both physical and vocational limitations.
Kennedy v. Duke Univ. Med. Ctr., 101 N.C. App. 24, 33, 398 S.E.2d
677, 682 (1990).
The full Commission found the following pertinent findings of
fact on the issue of temporary total disability:
12. Prior to April 9, 2001, plaintiff
contacted defendant-employer to request
sedentary work. Plaintiff was told there was
no light duty work available. Plaintiff's
employment with defendant-employer was not
terminated, and she returned to work fordefendant-employer in April 2001 earning the
same wages she was earning at the time of the
injury.
13. Plaintiff was on crutches through March
2001. Her prior work experience was limited
to jobs which would have required her to work
on her feet. She did not look for sedentary
work between October 26, 2000 and April 9,
2001, because she was still an employee of
defendant-employer. It would have been futile
in any event for her to have looked for
sedentary work, given her restrictions and her
past work experience.
***
21. As a result of the injury she sustained on
October 26, 2000, plaintiff was unable to earn
the same wages she was earning at the time of
the injury in the same or any other
employment, from October 26, 2000 to April 9,
2001.
There is competent evidence in the record to support the full
Commission's findings of fact that Ms. Chavis was unable to earn
the same wages she earned prior to her injury, either in the same
employment or in other employment. On 10 November 2000, Dr. Dawson
recommended that Ms. Chavis be out of work for a four-month period.
Also, prior to 9 April 2001, Ms. Chavis contacted TLC Home Health
Care to inquire about sedentary work but was told none was
available. This supports the full Commissions finding that Ms.
Chavis was incapable of earning the same wages in the same
employment as a CNA. See Moore v. Davis Auto Serv., 118 N.C. App.
624, 628, 456 S.E.2d 847, 850 (1995) ([E]vidence of an employer'srefusal to allow an employee to return to work because there was no
'light' work available supports a finding that the employee was not
capable of earning wages in the same employment. (citation
omitted)).
Also, Ms. Chavis testified that she was twenty-seven-years-
old, had a high school diploma, CNA certificate, and lobotomy
certificate. All of her previous employment had required her to
work on her feet. Ms. Chavis had no computer, receptionist, or
secretarial skills. This is competent evidence to support the full
Commission's finding of fact that [i]t would have been futile in
any event for her to have looked for sedentary work[.] See
Peoples v. Cone Mills Corp., 316 N.C. 426, 444, 342 S.E.2d 798, 809
(1986) (Where, however, an employee's effort to obtain employment
would be futile because of age, inexperience, lack of education or
other preexisting factors, the employee should not be precluded
from compensation for failing to engage in the meaningless exercise
of seeking a job which does not exist.). As there is competent
evidence to support the full Commission's findings of fact on the
issue of temporary total disability, we find TLC Home Health Care's
argument to be without merit.
[5] Next, TLC Home Health Care argues that the full Commission
erred in concluding that Ms. Chavis gave notice of her injury to
TLC Home Health Care because she filed Form 18 after the thirty-daytime period required by section 97-22 of the North Carolina General
Statutes. We disagree.
Section 97-22 of the North Carolina General Statutes provides
in pertinent 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 (2004). Section 97-22 requires written
notice be given by the injured employee to the employer within
thirty days. Pierce v. Autoclave Block Corp., 27 N.C. App. 276,
278, 218 S.E.2d 510, 511 (1975).
Here, both parties agree that Ms. Chavis did not give written
notice of injury to her employer until she filed Form 18, more than
thirty days after the accident. Since Ms. Chavis failed to provide
written notice within the thirty-day time period, (1) she must
provide a reasonable excuse for not giving the written notice, and
(2) the employer must fail to show prejudice for the delay. Id.
Section 97-22 gives the Industrial Commission the discretion
to determine what is or is not a reasonable excuse. N.C. Gen.
Stat. § 97-22 ([U]nless reasonable excuse is made to the
satisfaction of the Industrial Commission . . .) (emphasis added).
This Court has previously indicated that included on the list ofreasonable excuses would be, for example, 'a belief that one's
employer is already cognizant of the accident . . .' or '[w]here
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 . . ..' Jones v.
Lowe's Cos., Inc., 103 N.C. App. 73, 75, 404 S.E.2d 165, 166 (1991)
(quoting Lawton v. County of Durham, 85 N.C. App. 589, 592, 355
S.E.2d 158, 160 (1987)); see Lakey v. U.S. Airways, Inc., 155 N.C.
App. 169, 173, 573 S.E.2d 703, 706 (2002), disc. review denied, 357
N.C. 251, 582 S.E.2d 271 (2003) (reasonable excuse because employer
knew of injury where employee was injured on employer's aircraft,
employer filed an incident report, and employee saw employer's
doctor within the thirty days following the injury); Peagler v.
Tyson Foods, Inc., 138 N.C. App. 593, 603-04, 532 S.E.2d 207, 214
(2000) (reasonable excuse found because employee did not know
nature and character of injury where doctors originally told him he
had a heart attack, not a herniated disk). The burden is on the
employee to show a reasonable excuse. Jones, 103 N.C. App. at
75, 404 S.E.2d at 166.
The full Commission found the following pertinent finding of
fact on the issue of notice:
24. Plaintiff's father reported the injury to
defendant-employer on the date of injury.
Defendant-employer had actual notice of the
injury on the date it occurred, as evidencedby defendant-employer's own written incident
report. Under these circumstances, plaintiff
had no reason to believe she had to follow-up
with a written report of injury. Plaintiff
has offered reasonable excuse for failing to
give written notice of the injury within 30
days. Defendants offered no evidence that
might tend to show that they were prejudiced
by plaintiff's failure to file a written
report within thirty days of the injury.
Ms. Locklear testified that, on the date of the injury, Ms.
Chavis's father notified her of Ms. Chavis's accident and injury.
Ms. Locklear is TLC Home Health Care's scheduling supervisor. This
is competent evidence to support the full Commission's finding that
on the date of the injury, TLC Home Health Care had actual notice
of Ms. Chavis's accident and injury. Actual notice by the employer
has been previously held by this Court to be a reasonable excuse
for not giving written notice within thirty days. See, e.g., Davis
v. Taylor-Wilkes Helicopter Serv., 145 N.C. App. 1, 11, 549 S.E.2d
580, 586 (2001) (employee's failure to provide written notice
within thirty days did not bar his claim when his employer had
actual notice of the injuries on the date they occurred).
Section 97-22 of the North Carolina General Statutes also
requires that the full Commission be satisfied that the employer
has not been prejudiced by the delay in written notification. N.C.
Gen. Stat. § 97-22; Lakey, 155 N.C. App. at 173, 573 S.E.2d at 706
(Possible prejudice occurs where the employer is not able to
provide immediate medical diagnosis and treatment with a view tominimizing the seriousness of the injury and where the employer is
unable to sufficiently investigate the incident causing the
injury.). The burden is on the employer to show prejudice.
Peagler, 138 N.C. App. at 604, 532 S.E.2d at 214; Jones, 103 N.C.
App. at 76, 404 S.E.2d at 167.
Here, the full Commission found that TLC Home Health Care had
actual notice of Ms. Chavis's accident on the day it occurred. The
full Commission found also that TLC Home Health Care offered no
evidence that might tend to show that they were prejudiced by any
delay in written notification. Although TLC Home Health Care now
argues it was prejudiced because it was unable to direct Ms.
Chavis's medical treatment, it did not argue this to the full
Commission. Also, TLC Home Health Care fails to assert how it was
prejudiced by Ms. Chavis seeking medical treatment from her own
doctor. We find competent evidence to support the full
Commission's finding that TLC Home Health Care had actual knowledge
of Ms. Chavis's injury and was not prejudiced by any delay in
written notification. See Lakey, 155 N.C. App. at 173, 573 S.E.2d
at 706 (the defendants failed to assert how they were prejudiced
by a delay in written notification).
[6] Finally, TLC Home Health Care argues that the full
Commission erred by erroneously excluding evidence of Ms.
Locklear's testimony regarding TLC Home Health Care's policies. Determining credibility of witnesses is the responsibility of the
full Commission, not this Court. Adams, 349 N.C. at 681, 509
S.E.2d at 413. This Court does not re-weigh the evidence. Id, 509
S.E.2d at 414 Furthermore, the Commission does not have to
explain its findings of fact by attempting to distinguish which
evidence or witnesses it finds credible. Deese, 352 N.C. at 116,
530 S.E.2d at 553. We find this argument to be without merit.
Affirmed.
Judge MCCULLOUGH concurs.
Judge TYSON dissents.
TYSON, Judge dissenting.
The majority's opinion holds Ms. Chavis's accident occurred
in the course of her employment making her injury compensable.
Ms. Chavis was not at work or on-duty and was completing a
personal errand when the accident occurred. Also, this single car
accident occurred after Ms. Chavis blacked out, an idiopathic
condition that was the sole cause of the accident. Ms. Chavis's
injury did not arise out of her employment. I respectfully
dissent.
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