#### JOANNE ELLIOT, Plaintiff v. A. O. SMITH CORPORATION and EMPLOYERS INSURANCE OF WAUSAU, Defendants

No. 9010IC1062

(Filed 16 July 1991)

Master and Servant § 96 (NCI3d) — injury by accident — timeliness of notice — Commission’s findings binding

The Industrial Commission’s finding in a workers’ compensation action that plaintiff did not suffer an accident and had no reasonable excuse for not timely reporting it were binding because the determination of those issues depended upon plaintiff’s credibility and the Commission, as finder of fact, found that plaintiff’s testimony was not credible.

Am Jur 2d, Workmen’s Compensation §§ 445, 630.

APPEAL by plaintiff from Opinion and Award filed 11 July 1990 by the North Carolina Industrial Commission. Heard in the Court of Appeals 16 April 1991.

Charles N. Stedman for plaintiff appellant.

Maupin Taylor Ellis & Adams, P.A., by Richard M. Lewis and Jack S. Holmes, for defendant appellees.

PHILLIPS, Judge.

Plaintiff appeals from an Opinion and Award denying her claim for compensation under the Workers’ Compensation Act. The claim was denied on two grounds — first, that she was not injured by accident as she maintains, and second, that without reasonable excuse she failed to notify the employer of the alleged accident within thirty days of its occurrence as G.S. 97-22 requires. Her claim is that on 9 July 1987, while lifting a motor during the course of her employment, she suffered an injury by accident that ultimately resulted in disabilities to her back and knee. After hearing the evidence of the parties the Commission found and concluded in pertinent part that she did not suffer an injury by accident within the purview of the Act and had no reasonable excuse for not timely reporting it in any event. Plaintiff’s argument that the Commission’s findings are erroneous is unavailing. For under the circumstances involved whether plaintiff was injured by accident and had a reasonable excuse for not giving the employer timely *524notice were factual issues that depended entirely upon her credibility; the Commission found, as its prerogative as fact finder permitted, that plaintiffs testimony was not credible, and that determination is binding upon us. Torain v. Fordham Drug Co., Inc., 79 N.C. App. 572, 340 S.E.2d 111 (1986).

Affirmed.

Judges Parker and Greene concur.