{
  "id": 8434364,
  "name": "DAVID NOBLE WATTS, Employee, Plaintiff v. BORG WARNER AUTOMOTIVE, INC., Employer, and LUMBERMENS MUTUAL CASUALTY COMPANY, Carrier, Defendants",
  "name_abbreviation": "Watts v. Borg Warner Automotive, Inc.",
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  "docket_number": "No. COA04-895",
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          "parenthetical": "The employee told his supervisor about the accident within a week, but had not suffered any pain and was unaware of his injury. The Court found the defendant was not prejudiced in the delay."
        }
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          "parenthetical": "The employer was on constructive notice because it received a doctor's bill for plaintiff's injury within a month. The Court found no prejudice in the delay."
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          "parenthetical": "The defendant conceded immediate notice but contended prejudice by the surviving spouse's filing of a claim a year late. The court remanded for a finding of prejudice because the Commission's award failed to address it."
        }
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          "page": "2",
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        }
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        {
          "parenthetical": "The plaintiff filed a claim after thirty days but showed reasonable excuse that doctors mis-diagnosed his injury as a heart attack when the actual injury was a herniated disc and the plaintiff depended on his wife and doctor to notify the defendant of his work-related injuries."
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          "parenthetical": "The defendant failed to allege prejudice and the delay of five months for written notice did not prejudice the defendant. The Court held the defendant had notice because the plaintiff's incident report was made after the flight was complete."
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    {
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      "category": "reporters:state",
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      "case_ids": [
        9249365
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    "judges": [
      "Judge TYSON dissents in a separate opinion.",
      "Judge ELMORE concurs in a separate opinion."
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    "parties": [
      "DAVID NOBLE WATTS, Employee, Plaintiff v. BORG WARNER AUTOMOTIVE, INC., Employer, and LUMBERMENS MUTUAL CASUALTY COMPANY, Carrier, Defendants"
    ],
    "opinions": [
      {
        "text": "WYNN, Judge.\nThe Industrial Commission is required to make findings on crucial facts upon which the right to compensation depends. Gaines v. L. D. Swain & Son, Inc., 33 N.C. App. 575, 579, 235 S.E.2d 856, 859 (1977). In this matter, the full Commission made no findings of fact whether, under the circumstances, Plaintiff had a reasonable excuse and the employer was not prejudiced for delay in giving written notice as required by section 97-22 of the North Carolina General Statutes. Additionally, the full Commission failed to make any findings of fact determining causation of the injury. Accordingly, we remand this case for further findings of fact.\nPlaintiff David Noble Watts filed two workers\u2019 compensation claims alleging that he injured his lower back on 28 October 1999 and 26 May 2000 while lifting turbos. Mr. Watts filed an additional claim alleging that he injured his cervical spine and right hand and fingers while building turbos on 16 May 2000.\nFollowing the 28 October 1999 injury, Mr. Watts went to a chiropractor, Dr. James Dutton, for back pain and did not report the injury as work-related. Dr. Dutton referred Mr. Watts to Dr. Stewart Harley, an orthopedic surgeon. On 24 November 1999, Dr. Harley saw Mr. Watts for lower back pain. Mr. Watts told Dr. Harley the injury was not a workers\u2019 compensation claim.\nFrom 28 October 1999 until he was terminated on 30 April 2001, Mr. Watts was periodically absent from work and received short-term disability benefits while recovering from back surgery. During this period, Mr. Watts never told his supervisor or human resources that his injury was work-related. Mr. Watts filed four separate weekly indemnity forms for health benefits with Defendant Borg Warner Automotive, Inc., and stated in the four forms that the claims were not the result of a work-related illness or injury. Borg Warner terminated Mr. Watts on 30 April 2001 for failure to comply with its absence policy.\nOn 3 July 2001, Mr. Watts completed three separate Form 18s giving Borg Warner notice of the accident and claim. Borg Warner denied the claims. The case was heard before Deputy Commissioner Morgan S. Chapman on 11 July 2002. Deputy Commissioner Chapman filed an Opinion and Award denying all claims. Mr. Watts appealed to the full Commission. The full Commission reversed the award with regard to the 28 October 1999 claim number 152657, and awarded Mr. Watts temporary total disability benefits from 28 October 1999 through 27 December 1999 and ordered Borg Warner to pay for related medical expenses and attorney\u2019s fees. Borg Warner appealed the Opinion and Award as it related to claim number 152657.\nOn appeal, Borg Warner argues that the full Commission erred in awarding Mr. Watts temporary total disability benefits and medical expenses because (1) Mr. Watts\u2019s claim was barred by his failure to timely notify Borg Warner in writing of his injury; and (2) Mr. Watts did not sustain a compensable injury arising out of his employment. Because the full Commission failed to make adequate findings of fact on both issues, we remand this case for further findings of fact.\nThe standard of review for this Court in reviewing an appeal from the full Commission is limited to determining \u201cwhether any competent evidence supports the Commission\u2019s findings of fact and whether the findings of fact support the Commission\u2019s conclusions of law.\u201d Deese v. Champion Int\u2019l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). Our review \u201c \u2018goes no further than to determine whether the record contains any evidence tending to support the finding.\u2019 \u201d Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (citation omitted). The full Commission\u2019s findings of fact \u201care conclusive on appeal when supported by competent evidence,\u201d 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 \u201cwhen there is a complete lack of competent evidence to support them[.]\u201d Young v. Hickory Bus. Furniture, 353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000) (citation omitted). Further, all evidence must be taken in the light most favorable to the plaintiff, and the plaintiff \u201cis entitled to the benefit of every reasonable inference to be drawn from the evidence.\u201d Deese, 352 N.C. at 115, 530 S.E.2d at 553.\nBorg Warner argues that the full Commission erred in awarding Mr. Watts temporary total disability benefits and medical expenses because Mr. Watts\u2019s claim was barred by his failure to timely notify Borg Warner, in writing, of his injury. Because the full Commission failed to make adequate findings of fact, we remand for further findings.\nSection 97-22 of the North Carolina General Statutes provides in pertinent part:\nno 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.\nN.C. Gen. Stat. \u00a7 97-22 (2004). Section 97-22 clearly 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).\nHere, both parties agree that Mr. Watts did not give written notice of injury to his employer until twenty months after the injury occurred. Since Mr. Watts failed to provide written notice within the thirty-day time period, (1) he must provide a reasonable excuse for not giving the written notice, and (2) the employer must show prejudice for the delay. Id.\nSection 97-22 gives the Industrial Commission the discretion to determine what is or is not a \u201creasonable excuse.\u201d N.C. Gen. Stat. \u00a7 97-22 (\u201c. . . unless reasonable excuse is made to the satisfaction of the Industrial Commission . . .\u201d) (emphasis added). This Court has previously indicated that included on the list of reasonable excuses would be, for example, \u201c \u2018a belief that one\u2019s employer is already cognizant of the accident. . .\u2019 or \u2018[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 ....\u2019\u201d Jones v. Lowe\u2019s 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 also Lakey v. U.S. Airways, Inc., 155 N.C. App. 169, 173, 573 S.E.2d 703, 706 (2002) (reasonable excuse because employer knew of injury where employee was injured on employer\u2019s aircraft, employer filed an incident report, and employee saw employer\u2019s 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 \u201creasonable excuse.\u201d Jones, 103 N.C. App. at 75, 404 S.E.2d at 166.\nIn this case, Mr. Watts argues in his brief that his fear of retaliation was the \u201creasonable excuse\u201d for failing timely to notify Borg Warner in writing. However, while the full Commission made a finding of fact that the \u201clate reporting did not prejudice defendant and plaintiff\u2019s failure to timely report the injury is excused,\u201d it failed to make findings of fact to support the conclusion that the delay was due to a \u201creasonable excuse.\u201d Instead, the full Commission made the following conclusion of law which is not supported by adequate findings of fact:\n5. Plaintiff stated that he did not report his 28 October 1999 injury because when he had filed a previous workers\u2019 compensation claim in 1991, he was moved to a job with more difficult duties. He believed the employer was trying to make him quit. He also stated that he feared losing his job. We find this to be a reasonable excuse.\nWhile 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, 33 N.C. App. at 579, 235 S.E.2d at 859. 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\u2019Berry Ctr., 55 N.C. App. 244, 247, 284 S.E.2d 716, 718 (1981). \u201cWhere 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.\u201d Lawton v. County of Durham, 85 N.C. App. 589, 592, 355 S.E.2d 158, 160 (1987) (citing Hansel v. Sherman Textiles, 304 N.C. 44, 59, 283 S.E.2d 101, 109-10 (1981)).\nWhether an employee has shown reasonable excuse depends on the reasonableness of his conduct under the circumstances. Lawton, 85 N.C. App. at 592, 355 S.E.2d at 160. We hold that in this case, the full \u201cCommission made no findings of fact showing that Mr. Watts feared retaliation if he timely reported his injury.\u201d As such, the full Commission\u2019s conclusion that a \u201creasonable excuse\u201d existed under section 97-22 of the North Carolina General Statutes, is not supported by adequate findings of fact. Lawton, 85 N.C. App. at 592-93, 355 S.E.2d at 160. Accordingly, this case must be remanded for additional findings. Additionally, if the full Commission finds these circumstances constitute a reasonable excuse, it must then make sufficient findings regarding whether Borg Warner was prejudiced by the delayed notice. See Lakey, 155 N.C. App. at 173, 573 S.E.2d at 706; Pierce, 27 N.C. App. at 278, 218 S.E.2d at 511.\nBorg Warner also argues that the full Commission erred in concluding that Mr. Watts sustained a compensable spine injury arising out of his employment. Because the full Commission failed to make adequate findings of fact on causation, we must remand this matter.\nThe plaintiff in a workers\u2019 compensation case bears the burden of initially proving each and every element of compensability, including causation. Whitfield v. Lab. Corp. of Am., 158 N.C. App. 341, 350, 581 S.E.2d 778, 784 (2003); Porter v. Fieldcrest Cannon, Inc., 133 N.C. App. 23, 28, 514 S.E.2d 517, 521 (1999). Since the full Commission failed to make any findings of fact determining causation of the injury, we must remand this case for sufficient findings of fact on causation. Lawton, 85 N.C. App. at 592, 355 S.E.2d at 160.\nRemanded.\nJudge TYSON dissents in a separate opinion.\nJudge ELMORE concurs in a separate opinion.\n. We note that Plaintiff-Appellee\u2019s brief exceeded the page limit. N.C. R. App. P. 28Q). Additionally, Plaintiff-Appellee\u2019s \u201cMotion for Waiver of Page Limit to File Plaintiff-Appellee\u2019s Brief\u2019 was denied by this Court by Order dated 23 November 2004. Thus, this Court did not consider that part of Plaintiffs brief that exceeded the allowable page limit.\n. The dissent asserts that Plaintiff cannot provide a reasonable excuse because \u201cPlaintiff did not give actual notice to defendants and intentionally misrepresented his accident.\u201d After throughly examining the record and transcripts, we find no evidence that Plaintiff concealed or intentionally misrepresented his injury. The record shows that when filling out health insurance forms for time off work due to his back injury, Plaintiff did not include that he was hurt at work. However, while he was filling out the health insurance forms, Plaintiff informed his supervisor, Myra Butler, of the nature and cause of his injury by stating \u201cI did say that, you know, I\u2019d hurt my back lifting the turbochargers last week[.]\u201d\n. The dissent asserts that since Plaintiff cannot meet either of the two previously established \u201creasonable excuses,\u201d i.e., that the employer had actual notice or that the employee was unaware of the nature of his injuries, it is unnecessary to remand this case for further findings of fact. However, section 97-22 of the North Carolina General Statutes does not limit what constitutes a reasonable excuse, but instead gives the Industrial Commission discretion to determine if an excuse is reasonable on an individual basis. N.C. Gen. Stat. \u00a7 97-22 (\u201c. . . unless reasonable excuse is made to the satisfaction of the Industrial Commission for not giving such notice . . . .\u201d (emphasis added)).\n. The dissent asserts that \u201c[n]o competent evidence substantiates the required element of the accident causing plaintiffs injury[,]\u201d therefore, the Opinion and Award should be reversed and not remanded. The dissent cites Dr. Bruce Kelly, Plaintiff\u2019s family physician, as testifying that T do not think that his whatever happened at work caused all this ....\u201d Dr. Kelly went on to testify that T think it could have, could have aggravated, accelerated or contributed.\u201d",
        "type": "majority",
        "author": "WYNN, Judge."
      },
      {
        "text": "ELMORE, Judge\nconcurring.\nI concur in the result and reasoning of the majority opinion on both issues. I write separately in an attempt to guide the Industrial Commission on section 97-22 upon remand.\nAt the root of this case is the question of whether plaintiffs excuse for not reporting an alleged on-the-job injury within thirty days of its occurrence is reasonable, pursuant to N.C. Gen. Stat. \u00a7 97-22. The Full Commission did not make adequate findings on this issue, and thus we deem it necessary to remand for further consideration.\nThis Court has reviewed the \u201creasonable excuse\u201d language in section 97-22 many times. See, e.g., Lakey v. U.S. Airways, Inc., 155 N.C. App. 169, 573 S.E.2d 703 (2002); Davis v. Taylor-Wilkes Helicopter Serv., Inc., 145 N.C. App. 1, 549 S.E.2d 580 (2001); Peagler v. Tyson Foods, Inc., 138 N.C. App. 593, 532 S.E.2d 207 (2000); Westbrooks v. Bowes, 130 N.C. App. 517, 503 S.E.2d 409 (1998); Jones v. Lowe\u2019s Companies, 103 N.C. App. 73, 404 S.E.2d 165 (1991); Lawton v. County of Durham, 85 N.C. App. 589, 355 S.E.2d 158 (1987); Sanderson v. Northeast Construction Co., 77 N.C. App. 117, 334 S.E.2d 392, (1985); Hill v. Bio-Gro Systems, 73 N.C. App. 112, 326 S.E.2d 72 (1985). The majority and dissent in this case highlight a subtle difference in these cases that has not been precisely addressed: whether \u201creasonable excuse\u201d should be read broadly under the circumstances or strictly construed and limited to two previously identified circumstances.\nIn Lawton, this Court remanded the case to the Full Commission for further findings, but not before interpreting the statutory language.\nWhile a belief that one\u2019s employer is already cognizant of the accident may serve as \u2018reasonable excuse\u2019 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 \u2018reasonable excuse\u2019 as that term is used in G.S. 97-22. See generally 3 Larson, The Law of Workmen\u2019s 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.\nLawton, 85 N.C. App. at 592-93, 355 S.E.2d at 160. Then, in Jones, the Court quoted the language in Lawton, not of \u201creasonableness under the circumstances,\u201d but the more definitive text as what constitutes a reasonable excuse.\nA \u2018reasonable excuse\u2019 has been defined by this Court to include \u2018a belief that one\u2019s employer is already cognizant of the accident . . .\u2019 or \u2018[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. . . .\u2019\nJones, 103 N.C. App. at 75, 404 S.E.2d at 166 (internal quotations noted above). No Court has yet to hold that any circumstance other than the employer\u2019s knowledge of the injury or the employee\u2019s lack thereof is a reasonable excuse.\nThe dissent argues that these are the only two circumstances that warrant a reasonable excuse and plaintiff fails to fall into either. I write separately to stress the fact that the majority does not agree with this limited interpretation of \u201creasonable excuse.\u201d Indeed, the majority opinion cites Lawton for the proposition that \u201c[w]hether an employee has shown a reasonable excuse depends on the reasonableness of his conduct under the circumstances.\u201d Lawton, 85 N.C. App. at 592, 355 S.E.2d at 160. The fact that no opinion has found a reasonable excuse to encompass anything other than the two identified in Jones should not limit the Commission\u2019s determination of what is reasonable.",
        "type": "concurrence",
        "author": "ELMORE, Judge"
      },
      {
        "text": "TYSON, Judge\ndissenting.\nThe majority holds the Commission failed to make adequate findings of fact on: (1) a reasonable excuse for plaintiff\u2019s failure to timely notify his employer of an industrial accident; and (2) whether plaintiff\u2019s alleged injuries were caused by the accident and remands to the Commission for further findings of fact. Under the facts of and the law applicable to this case, remand is unnecessary. I vote to reverse and respectfully dissent.\nI. Standard of Review\nOur review of a Commission\u2019s opinion and award \u201c[is] limited to reviewing whether any competent evidence supports the Commission\u2019s findings of fact and whether the findings of fact support the Commission\u2019s conclusions of law.\u201d Deese v. Champion Int\u2019l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). No findings of fact support the Commission\u2019s conclusions of law. This Court reviews conclusions of law de novo. Grantham v. R. G. Barry Corp., 127 N.C. App. 529, 534, 491 S.E.2d 678, 681 (1997), disc. rev. denied, 347 N.C. 671, 500 S.E.2d 86 (1998).\nII. Notice Requirement\nThe Commission found as fact that \u201c[p]laintiff did not report the injury to his employer within 30 days\u201d but concluded as a matter of law that plaintiff\u2019s twenty month delay was justified by plaintiff\u2019s showing a \u201creasonable excuse.\u201d The majority agrees plaintiff failed to provide defendants notice within the required thirty day time period, but remands the matter for additional findings of fact whether a reasonable excuse was given. Undisputed evidence shows plaintiff failed to notify defendants within the statutorily required thirty days and failed to offer any \u201creasonable excuse\u201d recognized by any precedent. Remand to the Commission for further findings of fact is unecessary. The Commission\u2019s opinion and award is affected with an error of law and should be reversed.\nA. Immediate Notice\nN.C. Gen. Stat. \u00a7 97-22 (2003) states \u201cevery injured employee . . . shall immediately on the occurrence of an accident... give or cause to be given to the employer a written notice of the accident\u201d and \u201cno compensation shall be payable unless such written notice is given within 30 days after the occurrence of the accident.\u201d (Emphasis supplied). \u201cThe purpose of the notice-of-injury requirement is two-fold. It allows the employer to provide immediate medical diagnosis and treatment... to minimiz[e] the seriousness of the injury, and... [to] facilitate[] the earliest possible investigation of the circumstances surrounding the injury.\u201d Booker v. Medical Center, 297 N.C. 458, 481; 256 S.E.2d 189, 204 (1979) (N.C. Gen. Stat. \u00a7 97-22 inquiries are conducted to prevent prejudice to the employer by lack of notice by the employee).\n\u201cThe primary goal of statutory construction is to effectuate the purpose of the legislature in enacting the statute.\u201d Hoffman v. Great American Alliance Ins. Co., 166 N.C. App. 422, 427, 601 S.E.2d 908, 912 (2004). We are required to interpret notice requirements in N.C. Gen. Stat. \u00a7 97-22 to protect the employer\u2019s right and to require timely notice of injury. See Davis v. Taylor-Wilkes Helicopter Serv., Inc., 145 N.C. App. 1, 2, 549 S.E.2d 580, 581 (2001) (Both parties knew of the plaintiffs injury within thirty days but believed the plaintiff was an \u201cindependent contractor\u201d when he was, in fact, an employee. The Court found reasonable excuse and no prejudice in the delay). Cases cited within Judge Elmore\u2019s concurring opinion show either the employer had actual knowledge of the injury or the plaintiff was unaware a compensable injury had occurred: Lakey v. U.S. Airways, Inc., 155 N.C. App. 169, 573 S.E.2d 703 (2002) (The defendant failed to allege prejudice and the delay of five months for written notice did not prejudice the defendant. The Court held the defendant had notice because the plaintiff\u2019s incident report was made after the flight was complete.), disc. rev. denied, 357 N.C. 251, 582 S.E.2d 271 (2003); Westbrooks v. Bowes, 130 N.C. App. 517, 503 S.E.2d 409 (1998) (The defendant conceded immediate notice but contended prejudice by the surviving spouse\u2019s filing of a claim a year late. The court remanded for a finding of prejudice because the Commission\u2019s award failed to address it.); Hill v. Bio-Gro Systems, 73 N.C. App. 112, 326 S.E.2d 72 (1985) (The employee told his supervisor about the accident within a week, but had not suffered any pain and was unaware of his injury. The Court found the defendant was not prejudiced in the delay.); Sanderson v. Northeast Construction Co., 77 N.C. App. 117, 334 S.E.2d 392 (1985) (The employer was on constructive notice because it received a doctor\u2019s bill for plaintiff\u2019s injury within a month. The Court found no prejudice in the delay.); see also Chilton v. School of Medicine, 45 N.C. App. 13, 262 S.E.2d 347 (1980) (The plaintiff was not barred by failure to notify the employer within thirty days where school faculty had personal knowledge of the plaintiff\u2019s injury as it happened.).\nHere, plaintiff failed to immediately and timely report his alleged 28 October 1999 injury to defendants until July 2001, more than twenty months after the accident. No precedent has allowed a reasonable excuse for a twenty month delay. Under N.C. Gen. Stat. \u00a7 97-22, plaintiff\u2019s failure to provide notice \u201cimmediately on the occurrence of an accident\u201d which caused his alleged injuries bars his workers\u2019 compensation claim.\nB. Reasonable Excuse\nPlaintiffs failure to timely report the accident places the burden on him to provide a \u201creasonable excuse\u201d for his delay. The Commission must find and be \u201csatisfied that the employer has not been prejudiced.\u201d N.C. Gen. Stat. \u00a7 97-22.\nThe Commission concluded plaintiffs \u201cfear[] [of] losing his job\u201d was a reasonable excuse for his unduly delayed notification to defendants of his injuries. The majority remands to the Full Commission because \u201cthe full Commission made no findings of fact showing that [plaintiff] feared retaliation if he timely reported his injury\u201d and whether this \u201cfear\u201d was a reasonable excuse. Id.; Lawton v. County of Durham, 85 N.C. App. 589, 592-93, 355 S.E.2d 158, 160 (1987) (The Commission did not address the employee\u2019s allegation that he did not \u201crealize the nature and seriousness of his injury\u201d).\nDefendants argue plaintiff failed to give and cannot provide a reasonable excuse for his prejudicial failure to provide written notice to his employer within thirty days. I agree. \u201cThe burden is on the employee to show a \u2018reasonable excuse.\u2019 \u201d Jones v. Lowe\u2019s Companies, 103 N.C. App. 73, 75, 404 S.E.2d 165, 166 (1991) (quoting Lawton, 85 N.C. App. at 592, 355 S.E.2d at 160) (Two months after the injury, the employee gave oral notice and sought treatment. Three months after injury, the employee gave written notice. The Court found a reasonable excuse because the plaintiff did not know he was hurt). All prior cases recognized a \u201creasonable excuse\u201d as either \u201c \u2018a belief that one\u2019s employer is already cognizant of the accident . . .\u2019 or \u2018[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 . . . .\u2019\u2019\u2019Id. Undisputed facts show plaintiff cannot justify his failure of notice under either exception to excuse his noncompliance with the statute.\n1. Employer Knew of Injury\nThe Commission erred in concluding as a matter of law that plaintiff gave a reasonable excuse for his failure to notify defendants of the accident. We all agree no findings of fact show the employer was \u201ccognizant of the accident.\u201d Id. The Commission found: (1) \u201cplaintiff did not report a work-related injury to defendant-employer[;]\u201d (2) plaintiff \u201cdid not mention anything about an injury at work to [the human relations coordinator;]\u201d and (3) \u201cwhen [plaintiff] completed] the forms regarding disability associated with the neck surgery,\u201d he affirmatively \u201cchecked the box stating that the condition was not the result of a work-related illness or injury.\u201d (Emphasis added). The Commission\u2019s findings of fact directly conflict with his employer being \u201ccognizant of the accident\u201d to excuse plaintiff\u2019s failure to timely report. Id.\nPlaintiff not only failed to report his accident to defendants but affirmatively represented his injury was not related to his employment. Plaintiff cannot meet his burden of proving a reasonable excuse existed for his failure to notify his employer of the accident.\n2, Plaintiff was Unaware of Iniurv\nWe also all agree the Commission\u2019s findings of fact also cannot support a conclusion that plaintiff was unaware \u201cof the nature, seriousness, or probable compensable character of his injury.\u201d Id. The Commission found plaintiff was injured on 28 October 1999, visited a chiropractor on 1 November 1999, \u201cmissed approximately two weeks of work,\u201d and was treated by an orthopedic surgeon. Plaintiff sought treatment from his chiropractor within four days of his injuries. Plaintiff was obviously aware of his injuries throughout these visits and knew or should have known of \u201cthe nature, seriousness, or probable compensable character of his injury.\u201d Jones, 103 N.C. App. at 75, 404 S.E.2d at 166. Plaintiff cannot meet his burden of showing a reasonable excuse by not realizing the \u201cseriousness\u201d of his injuries. Id. Undisputed facts also show plaintiff had previously filed a workers\u2019 compensation claim and was aware of his duty to promptly notify his employer.\nN.C. Gen. Stat. 97-22 requires that a \u201creasonable excuse is made to the satisfaction of the Industrial Commission.\u201d The Commission\u2019s finding of fact stated, plaintiff\u2019s \u201clate reporting did not prejudice defendants] and plaintiff\u2019s failure to timely report the injury is excused.\u201d The majority correctly holds the' Commission failed to make a finding of fact to support its conclusion that plaintiff had a \u201creasonable excuse.\u201d N.C. Gen. Stat. \u00a7 97-22.\nUndisputed evidence shows plaintiff cannot provide a reasonable excuse to the Commission for his failure to timely notify defendants of his injury. Plaintiff did not give actual notice to defendants and intentionally misrepresented his accident. Defendants were not \u201ccognizant of the accident\u201d and plaintiff was aware \u201cof the nature, seriousness, or probable compensable character of his injury.\u201d See Jones, 103 N.C. App. at 75, 404 S.E.2d at 166.\nPlaintiff\u2019s actions directly contravene the purpose of the notice requirement in N.C. Gen. Stat. \u00a7 97-22. This Court has recognized claims by a plaintiff where timely notice was not given, if the plaintiff was unaware of the serious nature of their injury. See Peagler v. Tyson Foods, Inc., 138 N.C. App. 593, 532 S.E.2d 207 (2000) (The plaintiff filed a claim after thirty days but showed reasonable excuse that doctors mis-diagnosed his injury as a heart attack when the actual injury was a herniated disc and the plaintiff depended on his wife and doctor to notify the defendant of his work-related injuries.).\nHere, plaintiff knew of his injuries, immediately sought treatment for them, and did not report the accident to his employer. Plaintiffs actions are easily distinguishable from all precedents upholding reasonable excuses. Plaintiff claims he failed to report his injuries for \u201cfearQ [of] losing his job.\u201d The purpose of the notice requirement in N.C. Gen. Stat. \u00a7 97-22 is not for the benefit of the employee, but rather to provide actual notice to the employer. Plaintiff cannot meet his burden to show a reasonable excuse. Jones, 103 N.C. App. at 75, 404 S.E.2d at 166. The Commission\u2019s opinion and award should be reversed.\nC. Prejudice to Employer\nDefendants suffered prejudice as a matter of law by plaintiff\u2019s delay regardless of the Commission\u2019s conclusion that plaintiff had a reasonable excuse.\nN.C. Gen. Stat. \u00a7 97-22 requires both a \u201creasonable excuse\u201d and a showing \u201cthat the employer has not been prejudiced\u201d if notice of an injury is untimely. \u201cIf prejudice is shown, [e]mployee\u2019s claim is barred even though he had a reasonable excuse for not giving notice of the accident within 30 days.\u201d Id. at 76, 404 S.E.2d at 167. The purpose of the requirement of notice is to prevent prejudice toward the employer. \u201cThe purpose is dual: First, to enable the employer to provide immediate medical diagnosis and treatment with a view to minimizing the seriousness of the injury; and second, to facilitate the earliest possible investigation of the facts surrounding the injury.\u201d Id. at 76-77, 404 S.E.2d at 167; Booker, 297 N.C. at 481, 256 S.E.2d at 204; see 2B Larson\u2019s Workmen\u2019s Compensation Law \u00a7 78.10, 15-102.\nPlaintiff delayed reporting his accident for nearly two years after it occurred. Without notice, defendant-employer was: (1) unable to provide plaintiff with immediate medical diagnosis; (2) unable to provide plaintiff with treatment and could not initiate the earliest possible investigation of the facts; (3) unable to interview employees who may have witnessed plaintiffs injuries; (4) unable to investigate the site where the alleged injury occurred; and (5) unable to provide or direct plaintiffs medical treatment. Jones, 103 N.C. App. at 76-77, 404 S.E.2d at 167.\nWe all agree that although \u201cthe Commission is not required to make findings of fact concerning each question raised by the evidence, ... it is required to make specific findings pertaining to these crucial facts upon which plaintiffs claim rests.\u201d Barnes v. O\u2019Berry Center, 55 N.C. App. 244, 246, 284 S.E.2d 716, 717 (1981).\nThe Commission\u2019s conclusion of law, \u201c[d]efendant-employer has not shown prejudice for plaintiffs late filing of this claim\u201d is unsupported by its findings of fact. The only finding of fact made by the Commission is plaintiffs \u201clate reporting did not prejudice defendant . . . . \u201d This statement is actually a conclusion of law and does not explain or support the Commission\u2019s finding. The Commission failed to consider each of the factors above. Jones, 103 N.C. App. at 76-77, 404 S.E.2d at 167. If no finding of fact supports the Commission\u2019s conclusion of law, our review is de novo. Grantham, 127 N.C. App. at 534, 491 S.E.2d at 681. Defendants were prejudiced by plaintiffs delayed notification as a matter of law. Jones, 103 N.C. App. at 76, 404 S.E.2d at 167. Remand is unnecessary where plaintiff cannot offer any recognized \u201creasonable excuse\u201d to overcome prejudice to defendants. The Commission\u2019s opinion and award should be reversed.\nIII. Causation\nDefendants argue the Commission failed to make adequate findings of fact on causation.\nWe all agree the Commission \u201cfailed to make adequate findings of fact on causation,\u201d but the majority remands for further findings of fact. Our Supreme Court has repeatedly held \u201cthat the entirety of causation evidence\u201d must \u201cmeet the reasonable degree of medical certainty standard necessary to establish a causal link between\u201d the plaintiff\u2019s accident and their injury. Holley v. ACTS, Inc., 357 N.C. 228, 234, 581 S.E.2d 750, 754 (2003); Edmonds v. Fresenius Med. Care, 165 N.C. App. 811, 600 S.E.2d 501 (2004) (J. Steelman, dissenting), rev\u2019d per curiam, 359 N.C. 313, 608 S.E.2d 755 (2005); Alexander v. Wal-Mart Stores, Inc., 166 N.C. App. 563, 603 S.E.2d 552 (2004) (J. Hudson dissenting), rev\u2019d per curiam, 359 N.C. 403, 610 S.E.2d 374 (2005).\n\u201cUnless a causal connection between employment and injury is proved, the injury is not compensable. The burden of proving the causal relationship or connection rests with the claimant.\u201d Arp v. Parkdale Mills, Inc., 150 N.C. App. 266, 274, 563 S.E.2d 62, 68 (2002) (J. Tyson, dissenting), rev\u2019d per curiam, 356 N.C. 657, 576 S.E.2d 326 (2003). \u201cThe rule of causal relation is \u2018the very sheet anchor of the Workmen\u2019s Compensation Act,\u2019 and has been adhered to in our decisions, and prevents our Act from being a general health and insurance benefit act.\u201d Id. (quoting Bryan v. First Free Will Baptist Church, 267 N.C. 111, 115, 147 S.E.2d 633, 635 (1966)).\n\u201cAlthough expert testimony as to the possible cause of a medical condition is admissible [,] ... it is insufficient to prove causation, particularly \u2018when there is additional evidence or testimony showing the expert\u2019s opinion to be a guess or mere speculation.\u2019 \u201d Edmonds, 165 N.C. App. at 818, 600 S.E.2d at 506 (quoting Holley, 357 N.C. at 233, 581 S.E.2d at 753).\n\u201cAlthough medical certainty is not required, an expert\u2019s \u2018speculation\u2019 is insufficient to establish causation.\u201d Holley, 357 N.C. at 234, 581 S.E.2d at 754. In Alexander, our Supreme Court held \u201cthe role of the Court of Appeals is \u2018limited to reviewing whether any competent evidence supports the Commission\u2019s findings of fact and whether the findings of fact support the Commission\u2019s conclusions of law.\u2019 \u201d 166 N.C. App. at 573, 603 S.E.2d at 558 (quoting Deese, 352 N.C. at 116, 530 S.E.2d at 553).\nPlaintiff\u2019s orthopedic surgeon, Dr. Moody, testified plaintiff\u2019s \u201cwork injury could have aggravated and caused the onset of symptoms in the neck and low back\u201d or could have been caused by plaintiff\u2019s recreational weight lifting or working on his home. Plaintiff\u2019s family physician, Dr. Kelly, also testified concerning plaintiff\u2019s injuries, \u201cI do not think that his whatever happened at work caused all this . ...\u201d Dr. Kelly later added, \u201cI think it could have, could have aggravated, accelerated or contributed.\u201d This testimony is insufficient to prove causation.\n[Mjedical experts were asked only whether \u201c \u2018a particular event or condition could or might have produced the result in question, not whether it did produce such result.\u2019 \u201d Lockwood v. McCaskill, 262 N.C. 663, 668, 138 S.E.2d 541, 545 (1964) (quoting Stansbury, North Carolina Evidence \u00a7 137, at 332 (2d ed. 1963)). With the adoption of Rule 704 in 1983, experts were allowed to testify more definitively as to causation. N.C.G.S. \u00a7 8C-1, Rule 704. While the \u201ccould\u201d or \u201cmight\u201d question format circumvented the admissibility problem, it led to confusion that such testimony was sufficient to prove causation. See Alva v. Charlotte Mecklenburg Hosp. Auth., 118 N.C. App. 76, 80-81, 463 S.E.2d 871, 874 (1996) (a case that erroneously relied on Lockwood an opinion on the admissibility of expert opinion testimony, to find \u201ccould\u201d or \u201cmight\u201d testimony sufficient to prove causation). Although expert testimony as to the possible cause of a medical condition is admissible if helpful to the jury, Cherry, 84 N.C. App. at 604-05, 353 S.E.2d at 437, it is insufficient to prove causation ....\nHolley, 357 N.C. at 232-33, 581 S.E.2d at 753 (emphasis supplied).\nPlaintiffs physicians testified only to \u201cpossibility\u201d and not to a \u201cmedical certainty\u201d or that it is more likely plaintiffs injuries were caused by his accident. Id. at 234, 581 S.E.2d at 754. Possibility or might testimony \u201cis insufficient to prove causation.\u201d Id. The entirety of plaintiffs expert medical testimony is \u201cpossibility\u201d and \u201cspeculation\u201d and does not meet plaintiffs burden to show the necessary degree of \u201cmedical certainty\u201d to prove causation. Id.\nRemand for further findings of fact could give plaintiff a second bite at the apple. Plaintiff fully litigated his claim and failed to prove causation. The majority perpetuates and encourages both fraudulent and stale claims against employers by employees who fail to report injuries for nearly two years and who fail to establish their injuries were caused by their alleged accident.\nThe Commission failed to make any findings of fact on the cause of plaintiffs injuries, but concluded \u201c[p]laintiff sustained an injury by accident arising out of his employment with defendants as a direct result of the work assigned on or about 28 October 1999.\u201d No competent evidence substantiates the required element of the accident causing plaintiffs injury. The Commission\u2019s conclusion of law that \u201cplaintiff suffered a compensable injury\u201d is not supported by any competent evidence in the record. The Commission\u2019s opinion and award should be reversed.\nIII. Conclusion\nPlaintiff failed to report his injury \u201cimmediately\u201d to defendants within the statutorily required thirty day requirement and failed to provide a reasonable excuse for his twenty month delay. N.C. Gen. Stat. \u00a7 97-22 (2003). Defendants were prejudiced as a matter of law by plaintiff\u2019s unduly delayed notification.\nThe Commission\u2019s conclusion of law that \u201cplaintiff suffered a compensable injury\u201d is not supported by any competent evidence or findings of fact. No competent evidence substantiates the required element of causation. Plaintiffs claim for temporary total disability compensation should be denied. I vote to reverse the Commission\u2019s opinion and award. I respectfully dissent.",
        "type": "dissent",
        "author": "TYSON, Judge"
      }
    ],
    "attorneys": [
      "The Law Office of David Gantt, by David Gantt, for plaintiff - appellee.",
      "Hedrick, Eatman, Gardner & Kincheloe, LLP, by Hope F. Smelcer and Angela M. Easley, for defendants-appellants."
    ],
    "corrections": "",
    "head_matter": "DAVID NOBLE WATTS, Employee, Plaintiff v. BORG WARNER AUTOMOTIVE, INC., Employer, and LUMBERMENS MUTUAL CASUALTY COMPANY, Carrier, Defendants\nNo. COA04-895\n(Filed 21 June 2005)\nWorkers\u2019 Compensation\u2014 additional findings of fact required \u2014 reasonable excuse \u2014 causation\nThe Industrial Commission erred in a workers\u2019 compensation case by awarding plaintiff temporary total disability benefits and medical expenses without making adequate findings of fact on: (1) whether plaintiff had a reasonable excuse and the employer was not prejudiced by the delay in giving written notice as required by N.C.G.S. \u00a7 97-22; and (2) causation of the injury. Thus, the case is remanded for further findings.\nJudge Elmore concurring.\nJudge Tyson dissenting.\nAppeal by Defendants from Opinion and Award entered 4 March 2004 by the North Carolina Industrial Commission. Heard in the Court of Appeals 22 March 2005.\nThe Law Office of David Gantt, by David Gantt, for plaintiff - appellee.\nHedrick, Eatman, Gardner & Kincheloe, LLP, by Hope F. Smelcer and Angela M. Easley, for defendants-appellants."
  },
  "file_name": "0001-01",
  "first_page_order": 31,
  "last_page_order": 47
}
