{ "id": 4132231, "name": "JAMES YINGLING, Employee, Plaintiff v. BANK OF AMERICA, Employer, SELF-INSURED (GALLAGHER BASSETT SERVICES, INC., Servicing Agent), Defendant", "name_abbreviation": "Yingling v. Bank of America", "decision_date": "2013-03-05", "docket_number": "No. COA12-1031", "first_page": "820", "last_page": "839", "citations": [ { "type": "official", "cite": "225 N.C. App. 820" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "664 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641632 ], "year": 2008, "pin_cites": [ { "page": "596" } ], "opinion_index": 0, "case_paths": [ "/se2d/664/0589-01" ] }, { "cite": "658 S.E.2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640613, 12640614, 12640615 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/658/0273-01", "/se2d/658/0273-02", "/se2d/658/0273-03" ] }, { "cite": "362 N.C. 177", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12640561, 12640460 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/657/0667-01", "/se2d/657/0373-02" ] }, { "cite": "640 S.E.2d 744", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637758 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "751", "parenthetical": "holding that evidence that the plaintiff verbally informed her supervisor of the accident and that plaintiff's supervisor accompanied her to the emergency room supported a finding that the defendant had actual notice" }, { "page": "751" } ], "opinion_index": 0, "case_paths": [ "/se2d/640/0744-01" ] }, { "cite": "620 S.E.2d 533", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634183 ], "year": 2005, "pin_cites": [ { "page": "536", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/620/0533-01" ] }, { "cite": "627 S.E.2d 464", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635369, 12635370, 12635371, 12635372 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/627/0464-01", "/se2d/627/0464-02", "/se2d/627/0464-03", "/se2d/627/0464-04" ] }, { "cite": "616 S.E.2d 403", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633569 ], "year": 2005, "pin_cites": [ { "page": "412" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0403-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2011, "pin_cites": [ { "page": "(19)", "parenthetical": "defining medical compensation as those services \"prescribed by a health care provider authorized by the employer or subsequently by the Commission.\" (emphasis added)" }, { "page": "624" } ], "opinion_index": 0 }, { "cite": "264 S.E.2d 56", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "62" } ], "opinion_index": 0 }, { "cite": "299 N.C. 582", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575647 ], "year": 1980, "pin_cites": [ { "page": "591" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0582-01" ] }, { "cite": "540 S.E.2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2000, "pin_cites": [ { "page": "789", "parenthetical": "citation omitted" }, { "page": "788" }, { "page": "788" }, { "page": "788" }, { "page": "789" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 620", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9442486 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "626", "parenthetical": "citation omitted" }, { "page": "626" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0620-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-25", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "pin_cites": [ { "parenthetical": "emphasis added" }, { "parenthetical": "\"Provided, however, if he so desires, an injured employee may select a physician of his own choosing to attend, prescribe and assume the care and charge of his case, subject to the approval of the Industrial Commission.\"" } ], "opinion_index": 0 }, { "cite": "661 S.E.2d 709", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "page": "714", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "362 N.C. 299", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149478 ], "year": 2008, "pin_cites": [ { "page": "305", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0299-01" ] }, { "cite": "524 S.E.2d 805", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 341", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155876 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0341-01" ] }, { "cite": "518 S.E.2d 6", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "9" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 405", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11145035 ], "year": 1999, "pin_cites": [ { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0405-01" ] }, { "cite": "487 S.E.2d 571", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "346 N.C. 289", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139594, 139499, 139374, 139664, 139453 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/346/0289-03", "/nc/346/0289-02", "/nc/346/0289-04", "/nc/346/0289-05", "/nc/346/0289-01" ] }, { "cite": "482 S.E.2d 20", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "23" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 671", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11871118 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "675" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0671-01" ] }, { "cite": "355 S.E.2d 158", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "160", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 589", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170193 ], "year": 1987, "pin_cites": [ { "page": "592", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0589-01" ] }, { "cite": "192 N.C. App. 94", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4160871 ], "year": 2008, "pin_cites": [ { "page": "106" } ], "opinion_index": 0, "case_paths": [ "/nc-app/192/0094-01" ] }, { "cite": "363 N.C. 764", "category": "reporters:state", "reporter": "N.C.", "weight": 3, "pin_cites": [ { "page": "764" }, { "page": "761-62" } ], "opinion_index": 0 }, { "cite": "262 S.E.2d 347", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "350", "parenthetical": "holding that there was evidence of actual notice where employees of the defendant were present at the picnic where the plaintiff broke his ankle while playing volleyball and had personal knowledge of the accident" }, { "page": "350" } ], "opinion_index": 0 }, { "cite": "45 N.C. App. 13", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547082 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "18", "parenthetical": "holding that there was evidence of actual notice where employees of the defendant were present at the picnic where the plaintiff broke his ankle while playing volleyball and had personal knowledge of the accident" }, { "page": "18" } ], "opinion_index": 0, "case_paths": [ "/nc-app/45/0013-01" ] }, { "cite": "181 N.C. App. 437", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8374716 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "447", "parenthetical": "holding that evidence that the plaintiff verbally informed her supervisor of the accident and that plaintiff's supervisor accompanied her to the emergency room supported a finding that the defendant had actual notice" }, { "page": "447" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0437-01" ] }, { "cite": "41 S.E.2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1947, "pin_cites": [ { "page": "593", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "227 N.C. 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622633 ], "year": 1947, "pin_cites": [ { "page": "186", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/227/0184-01" ] }, { "cite": "173 N.C. App. 134", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353036 ], "year": 2005, "pin_cites": [ { "page": "138", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0134-01" ] }, { "cite": "404 S.E.2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "166", "parenthetical": "citations, quotation marks, ellipses, and brackets omitted" }, { "page": "166" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 73", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519554 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "75", "parenthetical": "citations, quotation marks, ellipses, and brackets omitted" }, { "page": "75" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0073-01" ] }, { "cite": "360 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787745, 3791782, 3787977, 3797401, 3793321, 3796109, 3789454, 3792409, 3787263 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0288-09", "/nc/360/0288-04", "/nc/360/0288-07", "/nc/360/0288-02", "/nc/360/0288-05", "/nc/360/0288-03", "/nc/360/0288-01", "/nc/360/0288-08", "/nc/360/0288-06" ] }, { "cite": "172 N.C. App. 366", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8320194 ], "year": 2005, "pin_cites": [ { "page": "377" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0366-01" ] }, { "cite": "688 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 21, "year": 2010, "pin_cites": [ { "parenthetical": "Gregory I" }, { "page": "440", "parenthetical": "emphasis added" }, { "page": "441", "parenthetical": "Hudson, J., dissenting" }, { "page": "438" }, { "page": "438" }, { "page": "437-38" }, { "page": "437" }, { "page": "437-39" }, { "page": "440-41" }, { "page": "440", "parenthetical": "\"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.\"" }, { "page": "440-41" }, { "page": "440-41" }, { "page": "439" }, { "page": "439" }, { "page": "438" }, { "page": "438" } ], "opinion_index": 0 }, { "cite": "363 N.C. 750", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151675 ], "weight": 5, "year": 2010, "pin_cites": [ { "parenthetical": "Gregory I" }, { "page": "762" }, { "page": "759" }, { "page": "759-61" }, { "page": "763" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0750-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-22", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 13, "year": 2009, "pin_cites": [ { "page": "759" }, { "parenthetical": "emphasis added" }, { "parenthetical": "'[U]nless reasonable excuse is made to the satisfaction of the Industrial Commission...'" } ], "opinion_index": 0 }, { "cite": "669 S.E.2d 582", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2008, "pin_cites": [ { "page": "584", "parenthetical": "citations, quotation marks, and brackets omitted" }, { "page": "586", "parenthetical": "citations, quotation marks, and emphasis omitted" }, { "page": "584" } ], "opinion_index": 0 }, { "cite": "362 N.C. 657", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149368 ], "weight": 4, "year": 2008, "pin_cites": [ { "page": "660", "parenthetical": "citations, quotation marks, and brackets omitted" }, { "page": "663" }, { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0657-01" ] } ], "analysis": { "cardinality": 1297, "char_count": 45438, "ocr_confidence": 0.738, "pagerank": { "raw": 4.456583025697791e-08, "percentile": 0.27933616979213843 }, "sha256": "d96e89a46b223f29dd380dc69c5fb026105faa7e2358a95a7537f36ae56c9fc2", "simhash": "1:0920c5d00a8e445e", "word_count": 7234 }, "last_updated": "2023-07-14T19:12:03.865649+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEPHENS and DILLON concur." ], "parties": [ "JAMES YINGLING, Employee, Plaintiff v. BANK OF AMERICA, Employer, SELF-INSURED (GALLAGHER BASSETT SERVICES, INC., Servicing Agent), Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nBank of America (\u201cdefendant\u201d) appeals from the 3 April 2012 Opinion and Award granting James Yingling (\u201cplaintiff\u2019) compensation for 2006 and 2008 work-related injuries and approving Dr. Joseph Lane as plaintiff\u2019s treating physician. Defendant argues on appeal that plaintiff\u2019s 2006 injury is not compensable because he failed to give written notice without reasonable excuse, that they were prejudiced by the two-year delay, that the Full Commission erred in concluding otherwise, and that the Full Commission\u2019s findings on this issue do not support its conclusions. Defendant further argues that the findings of the Full Commission as to plaintiff\u2019s 2008 injuries are not supported by the evidence and that the Commission erred in approving Dr. Lane as a treating physician. For the following reasons, we hold that the Full Commission\u2019s findings as to the 2006 injury supported its conclusions, that its findings as to the 2008 injury were supported by the evidence, and that the Commission did not err in approving Dr. Lane as a treating physician. Therefore, we affirm the Opinion and Award.\nI. Introduction\nPlaintiff began working for defendant in 2005 as a client manager and a support associate. Plaintiff worked with clients to provide various banking and financial services. In July 2005, plaintiff fell from a ladder in his home\u2019s backyard and injured his back. Plaintiff sought treatment for the injury and was able to engage in normal activity again within a year.\nOn 29 November 2006, plaintiff had a meeting at work in one of defendant\u2019s buildings. After plaintiff delivered doughnuts and coffee to the morning meeting, he went to move his car to another lot because he had parked in a spot reserved for senior managers. As plaintiff was driving through an intersection, his car was hit by another driver who ran a red light.\nPlaintiff contacted his supervisor and the branch manager, who both came to the scene of the accident and helped plaintiff retrieve his items from the vehicle. Plaintiff also reported the accident to his manager in Charlotte. Plaintiff did not file any written notice of the incident with defendant at that time. Later that same day, plaintiff began feeling back pain again and went to Wrightsville Family Practice for treatment. Over the next several months, plaintiff sought treatment for his back pain at a variety of facilities and with several physicians. Despite the treatments, plaintiff continued to experience significant pain through December 2007.\nIn December 2007, plaintiff visited Dr. Lane at the Hospital for Special Surgery in New York. After speaking with and examining plaintiff, Dr. Lane recommended physical therapy and other conservative treatment to address plaintiff\u2019s continuing back pain. Plaintiff continued to work for defendant throughout this period.\nOn 13 June 2008 plaintiff slipped and fell on a recently-waxed floor while at work. This fall caused plaintiff \u201cconsiderable\u201d pain in his back and down his legs. Plaintiff again sought treatment from Dr. Lane, who recommended more invasive treatment, including spinal surgery. Despite a successful surgery, which helped mitigate some of plaintiff\u2019s pain, plaintiff continued to experience considerable discomfort. Plaintiff has not worked for defendant since the 2008 fall.\nPlaintiff filed written notice of a claim for the 2008 injury on 1 August 2008 and written notice of a claim for the 2006 injury on 16 October 2008. Defendant denied both claims. The claims were heard by Deputy Commissioner James C. Gillen, who found both claims compensable and awarded plaintiff total disability compensation, as well as medical and psychological expenses and attorney\u2019s fees, by Opinion and Award entered 19 September 2011. Defendant appealed to the Full Commission, which found plaintiff\u2019s injuries compensable and granted plaintiff total disability, all medical and psychological care incurred as a result of both injuries, and attorney\u2019s fees by Opinion and Award entered 3 April 2012. Defendant filed written notice of appeal to this Court on 3 May 2012.\nII. Compensability of Plaintiff\u2019s Injuries\nA. Standard of Review\nThe standard of review in workers\u2019 compensation cases has been firmly established by the General Assembly and by numerous decisions of this Court. Under the Workers\u2019 Compensation Act, the Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Therefore, on appeal from an award of the Industrial Commission, review is limited to consideration of whether competent evidence supports the Commission\u2019s findings of fact and whether the findings support the Commission\u2019s conclusions of law. This [C]ourt\u2019s duty goes no further than to determine whether the record contains any evidence tending to support the finding.\nRichardson v. Maxim Healthcare/Allegis Group, 362 N.C. 657, 660, 669 S.E.2d 582, 584 (2008) (citations, quotation marks, and brackets omitted).\nB. 2006 Injury\nDefendant argues that plaintiff is not entitled to compensation for his 2006 injury because he failed to provide timely written notice without reasonable excuse and that it was prejudiced by the delay. Plaintiff counters that he gave defendant immediate actual notice of the accident, which constitutes a reasonable excuse for the nearly two-year delay in providing written notice, and that defendant cannot show any prejudice.\nAs a general rule, to be entitled to recover workers\u2019 compensation benefits, an employee injured in a work-related accident must give the employer written notice of the accident as soon as practicable or \u201cwithin 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.\u201d N.C. Gen. Stat. \u00a7 97-22 (2009). Our Supreme Court has decided two cases addressing this issue in the past several years \u2014 Richardson v. Maxim Healthcare/Allegis Group, 362 N.C. 657, 669 S.E.2d 582 (2008) and Gregory v. W.A. Brown & Sons, 363 N.C. 750, 688 S.E.2d 431 (2010) (Gregory I). In Richardson, the Court held:\n\u201cThe 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 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.\u201d\nRichardson, 362 N.C. at 663, 669 S.E.2d at 586 (citations, quotation marks, and emphasis omitted). But in Gregory, the Court noted that\n[n]ot every instance of actual notice will satisfy the statutory requirements of reasonable excuse and lack of prejudice. 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 notice depends on the Commission\u2019s conclusions on these legal issues, the Commission must support those conclusions with appropriate findings of fact as detailed above.\nGregory I, 363 N.C. at 762, 688 S.E.2d at 440 (emphasis added).\nTo some extent, Richardson and Gregory I appear inconsistent; in fact, the dissent in Gregory I claims that the majority has \u201cessentially overrule[d] Richardson just one year later, while claiming not to do so, in order to reach a particular outcome\u201d and \u201caddfed] nothing but confusion and inconsistency to our own jurisprudence.\u201d Id. at 764, 688 S.E.2d at 441 (Hudson, J., dissenting). Yet this Court is bound to follow both Richardson and Gregory I, so our task is to reconcile the two cases.\nThe Supreme Court in Gregory I distinguished Richardson on the basis that in Richardson the issue of notice was not contested, whereas in Gregory I it was. See id. at 759-60, 688 S.E.2d at 438 (\u201cIt was uncontested that the defendants in [Richardson] had actual notice of the plaintiff\u2019s accident, and in light of that actual notice, the Commission concluded that the defendants were not prejudiced by the delay in written notice. . . . [T]he most important factual difference between Richardson and the instant case ... concerns whether the parties disputed the issue of actual notice.\u201d). The Gregory I court also noted the differences in the facts of the two cases. In Richardson, the plaintiff was injured in an automobile accident, \u201cwhich was a discrete occurrence resulting in relatively certain injuries.\u201d Id. at 760, 688 S.E.2d at 438. In Gregory I, the plaintiff\u2019s back pain developed over an extended period of time, and \u201c[t]he timing of plaintiff\u2019s 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.\u201d Id. Factually, the circumstances of the 2006 automobile accident here are quite similar to Richardson, as plaintiff\u2019s automobile accident was \u201ca discrete occurrence resulting in relatively certain injuries,\u201d despite his prior back problems from his July 2005 fall at home. Id.\nAs directed by Gregory I, we read the two clauses of N.C. Gen. Stat. \u00a7 97-22 separately. Id. at 759, 688 S.E.2d at 437-38 (\u201cThe language following the semicolon initially provides that \u2018no compensation shall be payable unless such written notice is given within 30 days after the occurrence of the accident or death.\u2019 In other words, the language after the semicolon applies to all workers\u2019 compensation benefits, regardless of whether they accrue before or after the giving of written notice.\u201d (citation and emphasis omitted)). To put this in context, the entire statute provides as follows:\nEvery 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\u2019s 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.\nN.C. Gen. Stat. \u00a7 97-22 (emphasis added).\nThe statute differentiates between compensation and medical expenses which accrue prior to the employer\u2019s receipt of written notice and all compensation, which includes any benefits which might accrue at any time after the injury by accident. As to the benefits which accrue prior to written notice, the employee must show that the employer did have actual knowledge of the accident, unless this notice was prevented by \u201cphysical'or mental incapacity\u201d or \u201cfraud or deceit of some third person.\u201d Id. As to all benefits, including those accruing both before and after the employer receives written notice, the notice is required within 30 days of the accident unless the employee shows a \u201creasonable excuse ... to the satisfaction of the Industrial Commission\u201d for the delay in notice and the employer was not prejudiced by the delay. Id.\nThus, if a plaintiff is seeking compensation for disability benefits or expenses incurred prior to written notice being given, the plaintiff must show that the employer had actual knowledge of the accident, or that one of the other enumerated exceptions applies. Gregory I, 363 N.C. at 759, 688 S.E.2d at 437; N.C. Gen. Stat. \u00a7 97-22 (\u201c[T]he employee shall not be entitled to physician\u2019s 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.\u201d (emphasis added)).\nFurther, in every case where the plaintiff is seeking compensation for an accident not reported in writing within 30 days the Industrial Commission must make findings and legal conclusions both as to whether the plaintiff has shown a reasonable excuse for the delayed notice and, unless the issue of actual notice is uncontested, as to whether defendant has shown prejudice from the delay. Gregory I, 363 N.C. at 759-61, 688 S.E.2d at 437-39; N.C. Gen. Stat. \u00a7 97-22 (\u201c[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.\u201d). These findings must be supported by the evidence. See Richardson, 362 N.C. at 660, 669 S.E.2d at 584.\nIn this case, plaintiff seeks compensation and medical expenses incurred both prior to defendant\u2019s receipt of written notice as well as compensation and medical expenses incurred after the notice and into the future. The Commission concluded that plaintiff had shown a reasonable excuse and that defendant was not prejudiced by the delay in receipt of written notice because it found that defendant had received actual notice the day of the accident. Defendant argues that the finding of actual notice was unsupported by the evidence and that the Commission\u2019s findings that plaintiff had shown a reasonable excuse and that defendant had not been prejudiced by the delay were not supported by the findings. Because we conclude that the Commission\u2019s finding of actual notice is supported by the evidence, that this finding supports the conclusion that plaintiff had shown a reasonable excuse, and that the findings support the Commission\u2019s conclusion on the issue of prejudice, we affirm the Opinion and Award as to the 2006 injury.\ni. Actual notice and reasonable excuse\nUnder N.C. Gen. Stat. \u00a7 97-22, the first portion of the inquiry is whether defendant had \u201cknowledge of the accident,\u201d or actual notice of the accident, as this is necessary for plaintiff to recover benefits accruing prior to written notice, absent one of the exceptions in the statute. Further, in order for plaintiff to recover any benefits, he must show \u201creasonable excuse\u201d for the delay in written notice. As both the parties and the Commission addressed the issues of \u201cknowledge of the accident\u201d and \u201creasonable excuse\u201d together based upon the facts of this case, we will also, although we note that they are actually discrete issues legally.\n\u201cSection 97-22 gives the Industrial Commission the discretion to determine what is or is not a \u2018reasonable excuse.\u2019 N.C. Gen. Stat. \u00a7 97-22 (\u2018[U]nless reasonable excuse is made to the satisfaction of the Industrial Commission...')\" Chavis v. TLC Home Health Care, 172 N.C. App. 366, 377, 616 S.E.2d 403, 412 (2005), app. dismissed, 360 N.C. 288, 627 S.E.2d 464 (2006).\nA \u2018reasonable excuse\u2019 has been defined by this Court to include a belief that one\u2019s employer is already cognizant of the accident or 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. The burden is on the employee to show a \u2018reasonable excuse.\u2019\nJones v. Lowe\u2019s Companies, Inc., 103 N.C. App. 73, 75, 404 S.E.2d 165, 166 (1991) (citations, quotation marks, ellipses, and brackets omitted).\nHere, the Full Commission concluded that plaintiff had a reasonable excuse for delay because he \u201cgave immediate actual notice to two managers of defendant and he did not know of the compensable character of his injury\u201d and because he did not know that his injury was compensable under the Workers\u2019 Compensation Act. Defendant argues that the Commission\u2019s conclusion was erroneous for two reasons. First, defendant argues that the evidence did not support the finding of actual notice because plaintiff did not report that his accident was work-related to his supervisors, and that actual notice of the accident is not the same as notice of a work-related injury. Second, defendant contends that plaintiff\u2019s lack of awareness that his injury would be compensable under the Workers\u2019 Compensation Act is not sufficient to justify a conclusion that his delay was reasonable.\nWe first address the issue of \u201cknowledge of the accident,\u201d or actual notice. In unchallenged findings of fact number 4 and 6, the Commission found:\n4. On November 29, 2006, plaintiff was injured in a motor vehicle accident while working for defendant. The accident occurred when plaintiff was moving his vehicle from a parking lot adjacent to defendant\u2019s building to another parking location during the work day. On that morning, plaintiff parked his car in the lot adjacent to defendant\u2019s building so as to provide and carry doughnuts and coffee for an 8:00 a.m. meeting. After the meeting, plaintiff was required to move his car to another parking location because the adjacent lot he used prior to the meeting contained only a small number of spaces, which were assigned to senior managers. In the process of moving his car, plaintiff was involved in a collision when he drove through an intersection and his car was struck by another driver who ran a red light. Following the motor vehicle accident, plaintiff contacted his supervisor Tom Dodson from the accident scene. Mr. Dodson and the branch manager came to the scene and helped plaintiff retrieve items from his vehicle. Plaintiff also reported the accident to Debra Pickens, his manager in Charlotte.\n6. Plaintiff missed only a handful of days from work in the wake of the November 29, 2006 motor vehicle accident, as he was able to adjust his work schedule around his medical appointments. Plaintiff used sick time and was paid for these days. Plaintiff testified before the Deputy Commissioner that he did not immediately file [a] claim because he was unfamiliar with the Workers\u2019 Compensation Act and didn\u2019t realize that he may be entitled to benefits under the Act. Following the November 29, 2006 motor vehicle accident, plaintiff continued to get good performance reviews from defendant.\nThe Commission then found\nthat defendant had actual notice and knowledge of the accident and of plaintiff\u2019s resulting injury. This notice came when Mr. Dodson and defendant\u2019s branch manager came to the scene immediately after the motor vehicle accident, and also when plaintiff called and reported the accident to Debra Pickens, his manager in Charlotte.\nDefendant argues that notifying a manager of an accident is not the same as notifying him of a work-related injury and that therefore the evidentiary facts found do not support the ultimate finding of actual notice. Defendant cites a footnote from Gregory I in support of its argument. Defendant argues that the Supreme Court noted that \u201c[a]n employer\u2019s notice of an employee\u2019s \u2018accident,\u2019 standing alone, does not necessarily trigger any statutory duties for the employer.\u201d Gregory I, 363 N.C. at 763, 688 S.E.2d at 440 n.1. This is true, but Defendant omits the sentence preceding the one quoted; it states that \u201c[ujnlike \u2018accident,\u2019 \u2018injury\u2019 is a defined term under the Workers\u2019 Compensation Act, meaning \u2018only injury by accident arising out of and in the course of the employment.\u2019 [N.C. Gen. Stat.] \u00a7 97-2(6) (2007).\u201d Id.\nDefendant is correct that the definitions of \u201caccident\u201d and \u201cinjury\u201d are different.\nThe Workers\u2019 Compensation Act extends coverage only to an \u201cinjury by accident arising out of and in the course of the employment [.]\u201d N.C. Gen.Stat. \u00a7 97-2(6) (2003). Injury and accident are separate concepts, and there must be an accident which produces the injury before an employee can be awarded compensation.\nSwift v. Richardson Sports, Ltd., 173 N.C. App. 134, 138, 620 S.E.2d 533, 536 (2005) (citation omitted). An \u201caccident,\u201d for purposes of workers\u2019 compensation, has been variously \u201cdefined as[:] \u2018an unlooked for and untoward event which is not expected or designed by the injured employee[;]\u2019 \u2018[a] result produced by a fortuitous causef;]\u2019 \u2018[a]n unexpected or unforeseen event[;]\u2019 [and] \u2018[a]n unexpected, unusual or undesigned occurrence.\u2019 \u201d Edwards v. Piedmont Publishing Co., 227 N.C. 184, 186, 41 S.E.2d 592, 593 (1947) (citations omitted).\nN.C. Gen. Stat. \u00a7 97-22 states that the employer must have \u201cknowledge of the accident;\u201d it does not require knowledge of a \u201cwork-related injury\u201d as argued by defendant. Our prior cases have recognized that the employer\u2019s knowledge of the employee\u2019s \u201cunexpected or unforeseen event,\u201d or accident, along with knowledge that the employee was injured to some degree by this event, is sufficient. See, e.g., Legette v. Scotland Memorial Hosp., 181 N.C. App. 437, 447, 640 S.E.2d 744, 751 (2007) (holding that evidence that the plaintiff verbally informed her supervisor of the accident and that plaintiff\u2019s supervisor accompanied her to the emergency room supported a finding that the defendant had actual notice), disc. rev. denied, 362 N.C. 177, 658 S.E.2d 273 (2008), and Chilton v. Bowman Gray School of Medicine, 45 N.C. App. 13, 18, 262 S.E.2d 347, 350 (1980) (holding that there was evidence of actual notice where employees of the defendant were present at the picnic where the plaintiff broke his ankle while playing volleyball and had personal knowledge of the accident).\nMoreover, the Supreme Court in Gregory I did not hold that the Commission\u2019s findings on actual notice were inadequate. The only issue before the Court was whether findings as to prejudice are required where actual notice is found. See Gregory I. at 363 N.C. 764, 688 S.E.2d at 440-41. The Supreme Court reversed and remanded because the Commission had failed to make any conclusions of law or findings of fact as to whether the defendant was prejudiced by the delay. See id. at 764, 688 S.E.2d at 440 (\u201cThe Full Commission in this case erred in awarding benefits to plaintiff without concluding that defendants were not prejudiced by plaintiff\u2019s failure to give written notice within thirty days after her accident and without supporting such a conclusion with appropriate findings of fact.\u201d). This Court\u2019s holding affirming the conclusion that the plaintiff had shown a reasonable excuse based on actual notice was left undisturbed. Id. at 764, 688 S.E.2d at 440-41; Gregory v. W.A. Brown & Sons, 192 N.C. App. 94, 106, 664 S.E.2d 589, 596 (2008), rev\u2019d in part, Gregory I, 363 N.C. at 764, 688 S.E.2d at 440-41.\nHere, the Commission found that plaintiff immediately contacted three agents of defendant and informed them of the automobile accident. The uncontested findings show that the accident occurred during the workday, that the branch manager and defendant\u2019s supervisor went to the scene of the accident, and that plaintiff contacted his manager in Charlotte and informed her of his car accident that same day. Although plaintiff did not immediately seek medical treatment, he did soon after the accident, and he notified defendant of his need to be absent from work to attend medical appointments. Although the Commission did not make any findings about the precise words that plaintiff used to notify defendant about the accident, there is no evidence that plaintiff ever denied that the accident was work-related. Additionally, there is no contention that plaintiff was going home or attending to some personal errand at the time of the accident. These facts support the Commission\u2019s ultimate finding that defendant had actual knowledge of plaintiff\u2019s accident and that finding supports the conclusion that plaintiff had a reasonable excuse for his delay in providing written notice. See Legette, 181 N.C. App. at 447, 640 S.E.2d at 751; Chilton, 45 N.C. App. at 18, 262 S.E.2d at 350. This actual notice satisfies both the requisite \u201cknowledge of the accident\u201d for plaintiff to recover expenses incurred prior to written notice being given and the \u201creasonable excuse\u201d prong of the ultimate two-part test under N.C. Gen. Stat. \u00a7 97-22.\nA plaintiff does not have to show both that the employer had \u201cactual knowledge of the accident\u201d and that the employee did not \u201creasonably know of the . . . probable compensable character of his injury and delays, notification only until he reasonably knows.\u201d Lawton v. Durham County, 85 N.C. App. 589, 592, 355 S.E.2d 158, 160 (1987) (citation omitted). Rather, he need only show the Commission that he had a reasonable excuse for delay in providing written notice. See Jones, 103 N.C. App. at 75, 404 S.E.2d at 166. Having held that the Commission\u2019s findings on actual notice support its conclusion that plaintiff has shown a reasonable excuse for delay, we need not decide whether plaintiff\u2019s ignorance of the workers\u2019 compensation system constitutes lack of knowledge of the probable compensable character of his injury. We now turn to the issue of prejudice.\nii. Prejudice by the delayed written notice\nA defendant-employer bears the burden of showing that it was prejudiced. If the defendant-employer is able to show prejudice by the delayed written notice, the employee\u2019s claim is barred, even though the employee had a reasonable excuse for not providing written notice within 30 days, as required by statute. Our Courts have noted the purpose of providing the employer with written notice within 30 days of the injury in accordance with the statute is twofold: 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. Thus, in determining whether prejudice occurred, the Commission must consider the evidence in light of this dual purpose. In addition, our Courts have found that where the employer is on actual notice of the employee\u2019s injury soon after it occurs, and soon enough for a thorough investigation, defendant-employer is not prejudiced by plaintiff\u2019s failure to provide timely written notice.\nGregory II,_N.C. App. at_, 713 S.E.2d at 74 (citations and quotation marks omitted).\nThe Commission concluded that defendant \u201c[was] not prejudiced because they [sic] had immediate actual notice and could have investigated the incident.\u201d Defendant argues that it was prejudiced by plaintiff\u2019s delay in filing written notice of the 2006 injury because it was unable to effectively investigate plaintiffs claim two years later, plaintiffs medical costs are much higher than they otherwise would have been because he has directed all of his own medical treatment over the course of those two years, including treatment by a physician in New York, and because defendant is now unable to file a third-party claim against the driver of the vehicle who ran the red light and struck plaintiff in 2006.\nIn Gregory I, the Supreme Court noted some facts which could support a conclusion of lack of prejudice:\n[Findings of fact to the effect that an employer had actual knowledge within thirty days after an employee\u2019s accident, and that the actual knowledge included such information as the employee\u2019s 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.\nGregory I, 363 N.C. at 761-62, 688 S.E.2d at 439. The Supreme Court provided this list of information to provide guidance, \u201cnot... to limit either deputies or the Full Commission.\u201d Id. at 761, 688 S.E.2d at 439. Thus, it is clear that the Commission need not make findings that the employer knew all of the above information to support a conclusion that the employer was not prejudiced.\nAdditionally, in Gregory I, the Supreme Court noted that although there were no findings of prejudice in Richardson, the defendant in that case had failed to show prejudice, and distinguished it from the situation in Gregory I:\n[T]he employee in Richardson was involved in an automobile accident, which was a discrete occurrence resulting in relatively certain injuries. In this case, on the other hand, plaintiff had been experiencing back pain for approximately six months when her accident occurred and sought workers\u2019 compensation after she \u201caggravated her preexisting degenerative condition.\u201d The timing of plaintiff\u2019s 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. As a result of plaintiff\u2019s actions, initial attempts by physicians to diagnose plaintiffs problem and determine whether it was work related were inconclusive.\nId. at 760, 688 S.E.2d at 438.\nAs noted above, the factual circumstances of the automobile accident here and in Richardson are quite similar, as is the length of the delay in written notice. Here, the Commission\u2019s uncontested findings show that agents of defendant went to the scene of the accident and were otherwise immediately informed thereof by plaintiff himself. The Commission also made uncontested findings that plaintiff took paid sick leave to attend his medical appointments and that a coworker noticed that plaintiff \u201cwas in a lot more pain and was just different\u201d after the accident. It is clear, then, that defendant knew which employee had been involved in the accident, when and where that accident had occurred, and that plaintiff was injured in a car accident as he was moving his car from defendant\u2019s parking lot to his normal work spot after delivering refreshments for a meeting. The findings do not directly mention whether defendant was aware of the extent of plaintiff\u2019s injuries. Additionally, although plaintiff had previously experienced back problems, like in Gregory I, the Commis-sion found that those problems had subsided by the time of plaintiff\u2019s 2006 accident. As in Richardson, the car accident here \u201cwas a discrete occurrence resulting in relatively certain injuries.\u201d Id.\nWe hold that the Commission\u2019s findings support the conclusion that defendant had immediate, actual knowledge of the accident and failed to further investigate the circumstances surrounding the accident at that time. See id. at 761-62, 688 S.E.2d at 438. If defendant had properly investigated this accident at the time it received actual notice and accepted his claim as compensable, it could have directed plaintiff\u2019s treatment and filed a third-party complaint against the driver of the vehicle that struck plaintiff in 2006. N.C. Gen. Stat. \u00a7 97-22 requires only that the Commission be \u201csatisfied that the employer has not been prejudiced\u201d and under Gregory II the findings of fact here are sufficient to support this conclusion of lack of prejudice.\nDefendant does not contend that plaintiff\u2019s injury was exacerbated by a delay in treatment because there was no delay in treatment. The Commission found, and defendant does not contest, that plaintiff first sought medical treatment the same day as the accident and continued to seek treatment in the following months until he was able to manage his pain \u201cwith physical therapy and other conservative treatments.\u201d Nor does defendant contend that plaintiff received improper or inappropriate medical care which may have worsened his condition instead of improving it.\nAs in Gregory II, \u201cwe hold the evidence supports the Commission\u2019s findings that defendant-employer had actual notice of plaintiff\u2019s injury soon after it occurred and that such actual notice under the circumstances of the present case satisfied the twin aims of providing the employer with a 30-day written notice\u201d such that defendant cannot show that it was prejudiced by the delay. Gregory II,_N.C. App. at_, 713 S.E.2d at 76.\nC. 2008 Injury\nDefendant next argues that the Commission\u2019s findings of fact as to plaintiff\u2019s 2008 injury were unsupported by the evidence. Specifically, defendant argues that given plaintiff\u2019s history of back problems, the Commission could not find that the 2008 accident materially accelerated or aggravated his pre-existing condition. Defendant also argues that Dr. Lane\u2019s opinion that plaintiff\u2019s pain has increased is incompetent evidence because it was based solely on plaintiff\u2019s own reports and is inconsistent with the \u201cobjective\u201d evidence.\nOne of the- principal witnesses credited by the Industrial Commission was Dr. Joseph Lane. Dr. Lane is a board-certified specialist in orthopedics, attending physician at New York Presbyterian Weill, and a professor of orthopedic surgery and assistant dean at the Weill Cornell Medical College who has authored numerous publications on orthopedics. He testified that he first treated plaintiff late in 2007 for back pain. He examined plaintiff\u2019s medical records and spoke with plaintiff about his symptoms. At that time plaintiff was experiencing knee, neck, and back pain serious enough to seek treatment, and even severe enough to impact his ability to work at times, but the pain was intermittent. At the 2007 meeting, Dr. Lane recommended physical therapy and other conservative treatment. Dr. Lane scheduled a follow-up session for July 2008. However, before that time, plaintiff slipped and fell at work. Plaintiff reported to Dr. Lane that \u201che was in miserable pain,\u201d and moved his appointment up several weeks.\nDr. Lane stated that plaintiff \u201cwas a different person [at the time of the 2008 examination] than I had seen in 2007 in a number of ways,\u201d and explained that many of plaintiff\u2019s symptoms had become much more severe. Because of these more severe symptoms Dr. Lane recommended a decompression surgery to take pressure off of plaintiff\u2019s affected nerves. Dr. Lane also examined plaintiff on two occasions after the surgery. Dr. Lane testified that the surgery went well, though plaintiff continued to suffer some numbness in his legs, discomfort at the site of the surgery, and pain in his back. Dr. Lane noted that although the surgery resulted in improvement; plaintiff \u201cstill had not gotten back to his pre-fall level.\u201d Finally, Dr. Lane opined that the 2008 fall contributed to, accelerated, and exacerbated plaintiff\u2019s pain.\nDefendant, citing Thacker v. City of Winston-Salem, 125 N.C. App. 671, 482 S.E.2d 20, disc. rev. denied, 346 N.C. 289, 487 S.E.2d 571 (1997), argues that Dr. Lane\u2019s testimony was incompetent because he assumed the truth of facts that the record did not support and relied on plaintiff\u2019s \u201csubjective reports.\u201d\nIn Thacker, the expert witness specifically testified that he could not give an opinion on whether the accident aggravated the plaintiff\u2019s pre-existing condition. Thacker, 125 N.C. App. at 675, 482 S.E.2d at 23. The witness only said that in a hypothetical scenario posed by plaintiff\u2019s counsel the accident could aggravate the plaintiff\u2019s preexisting condition. Id. Here, by contrast, Dr. Lane did not merely guess or speculate, but opined, based on his actual physical examinations of plaintiff, plaintiff\u2019s reports to him, and his extensive experience and training in orthopedics, that the accident did aggravate plaintiff\u2019s pre-existing condition. Thus, defendant\u2019s reliance on Thacker is misplaced.\nAdditionally, defendant\u2019s argument that Dr. Lane\u2019s testimony is incompetent because he relied on plaintiff\u2019s reports of his pain is unconvincing. Dr. Lane treated plaintiff both before and after the 2008 accident and thus had a particularly good opportunity to evaluate plaintiff\u2019s physical condition and complaints over time. Especially when treating pain patients, \u201c[a] physician\u2019s diagnosis often depends on the patient\u2019s subjective complaints, and this does not render the physician\u2019s opinion incompetent as a matter of law.\u201d Jenkins v. Public Service Co. of North Carolina, 134 N.C. App. 405, 410, 518 S.E.2d 6, 9 (1999), disc. rev. dismissed as improvidently granted, 351 N.C. 341, 524 S.E.2d 805 (2000).\nDefendant also argues that the Commission could not find that the 2008 incident aggravated plaintiff\u2019s pre-existing condition because Dr. Lane did not examine all of plaintiff\u2019s medical records. This argument goes to the weight to be given to Dr. Lane\u2019s testimony, not to its competency. Defendant essentially asks us to re-weigh the evidence before the Commission based on the \u201cobjective\u201d evidence presented.\n[T]he Commission\u2019s findings of fact are conclusive on appeal when supported by competent evidence, even though there be evidence that would support findings to the contrary. . . . [T]his Court does not have the right to weigh the evidence and decide the issue on the basis of its weight. The court\u2019s duty goes no further than to determine whether the record contains any evidence tending to support the finding.\nHassell v. Onslow County Bd. of Educ., 362 N.C. 299, 305, 661 S.E.2d 709, 714 (2008) (citations and quotation marks omitted).\nWe hold that Dr. Lane\u2019s testimony, which the Full Commission found credible and relied upon, was competent evidence that supports the finding that plaintiff\u2019s 2008 injury materially aggravated his pre-existing condition. Therefore, we affirm the Full Commission\u2019s Opinion and Award as to the 2008 injury.\nIII. Directing Medical Treatment\nDefendant finally argues that the Full Commission erred in approving Dr. Lane as a treating physician and that \u201c[t]here is no statutory authority giving the Industrial Commission the authority to deem an injury compensable and then simultaneously usurp [] an employer\u2019s right to direct medical treatment.\u201d\nThe Commission found that \u201cgiven the circumstances of this case, plaintiff\u2019s future medical care is best directed by Dr. Lane\u201d and approved future care provided by Dr. Lane. Defendant contends that because of the 2011 changes to N.C. Gen. Stat. \u00a7 97-25 the Industrial Commission must make specific findings that support its decision to approve a physician in the first instance. Defendant cites no cases in support of this proposition.\nN.C. Gen. Stat. \u00a7 97-25 now states, in part, that \u201c[i]n order for the Commission to grant an employee\u2019s request to change treatment or health care provider, the employee must show by a preponderance of the evidence that the change is reasonably necessary to effect a cure, provide relief, or lessen the period of disability\u201d and omits the previously included phrase \u201cas may in the discretion of the Commission be necessary.\u201d N.C. Gen. Stat. \u00a7 97-25 (2011).\nDefendant\u2019s argument fails for several reasons. First, the language concerning what an employee must show only addresses a change in provider, not the initial approval of a provider by the Commission. Second, the phrase \u201cas may in the discretion of the Commission be necessary\u201d omitted from the current version referred to the second sentence of \u00a7 97-25, which now provides that \u201cin case of a controversy arising between the employer and the employee . . . the Industrial Commission may order necessary treatment.\u201d Compare N.C. Gen. Stat. \u00a7 97-25 (2011) with N.C. Gen. Stat. \u00a7 97-25 (2009). This sentence specifically authorizes the Commission to order \u201cnecessary treatment.\u201d\nMost importantly, defendant ignores the first sentence of the cited paragraph, which states that\nIf the employee so desires, an injured employee may select a health care provider of the employee\u2019s own choosing to attend, prescribe, and assume the care and charge of the employee\u2019s case subject to the approval of the Industrial Commission.\nN.C. Gen. Stat. \u00a7 97-25 (2011) (emphasis added). Under this provision, \u201c[ajpproval of an employee-selected physician is left to the sound discretion of the Commission.\u201d Kanipe v. Lane Upholstery, 141 N.C. App. 620, 626, 540 S.E.2d 785, 789 (2000) (citation omitted).\nThe language in this first sentence has not changed in relevant part since our Supreme Court interpreted \u00a7 97-25 to mean \u201cthat an injured employee has the right to procure, even in the absence of an emergency, a physician of his own choosing, subject to the approval of the Commission.\u201d Schofield v. Great Atlantic & Pac. Tea Co., Inc., 299 N.C. 582, 591, 264 S.E.2d 56, 62 (1980); see N.C. Gen. Stat. \u00a7 97-25 (2009) (\u201cProvided, however, if he so desires, an injured employee may select a physician of his own choosing to attend, prescribe and assume the care and charge of his case, subject to the approval of the Industrial Commission.\u201d); see also N.C. Gen. Stat. \u00a7 97-2(19) (2011) (defining medical compensation as those services \u201cprescribed by a health care provider authorized by the employer or subsequently by the Commission.\u201d (emphasis added)). The 2011 amendments only changed the word \u201cphysician\u201d to \u201chealth care provider.\u201d This change does not indicate that the Legislature intended to alter the long-standing rule that the Industrial Commission can approve a health care provider chosen by the employee.\nMoreover, this Court has long held that \u201cthe right to direct medical treatment is triggered only when the employer has accepted the claim as compensable.\u201d Id. at 624, 540 S.E.2d at 788. Accepting the compensability of the claim means that the defendant has taken some act admitting compensability such as filing a Form 21 agreement accepted by the Commission, or directly paying the plaintiff and filing a Form 60. Id. at 625, 540 S.E.2d at 788.\nNever has this Court held that a defendant may fully contest the compensability of the claim, lose before the Full Commission, and still have a right to direct the plaintiffs treatment. Such a result would be especially inappropriate where, as here, the defendant continues to contest the compensability of the plaintiffs injury. \u201c[U]ntil the employer accepts the obligations of its duty, i.e., paying for medical treatment, it should not enjoy the benefits of its right, i.e., directing how that treatment is to be carried out.\u201d Id. at 624, 540 S.E.2d at 788. Nothing in the revised statute suggests that the Legislature intended to allow the employer to enjoy the benefits of choosing a treating physician without bearing the associated obligations. The approval of a physician remains in \u201cthe sound discretion of the Commission.\u201d Kanipe, 141 N.C. App. at 626, 540 S.E.2d at 789.\nWe conclude that the Commission did not abuse its discretion in approving Dr. Lane as plaintiffs treating physician.\nIV. Conclusion\nThe Industrial Commission\u2019s findings support its conclusion that plaintiff had a reasonable excuse for delay in filing written notice of his 2006 injury, and that defendant was not prejudiced by the delay. There was competent evidence to support the Commission\u2019s findings as to plaintiff\u2019s 2008 injury and those findings support its conclusions. Finally, the Commission did not abuse its discretion is approving Dr. Lane as a treating physician. Therefore, we affirm the Full Commission\u2019s 3 April 2012 Opinion and Award in full.\nAFFIRMED.\nJudges STEPHENS and DILLON concur.\n. In their briefs, the parties do not distinguish between the expenses incurred prior to written notice being given and those incurred after, but their arguments do address all three issues: actual notice of the accident, reasonable excuse for delay in written notice, and prejudice.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Kathleen Shannon Glancy, P.A, by Kathleen Shannon Glancy, for plaintiff-appellee.", "Hedrick Gardner Kincheloe & Garofalo, LLP, by M. Duane Jones and Justin D. Robertson, for defendant-appellant." ], "corrections": "", "head_matter": "JAMES YINGLING, Employee, Plaintiff v. BANK OF AMERICA, Employer, SELF-INSURED (GALLAGHER BASSETT SERVICES, INC., Servicing Agent), Defendant\nNo. COA12-1031\nFiled 5 March 2013\n1. Workers\u2019 Compensation \u2014 injury\u2014written notice \u2014 reasonable excuse for delay \u2014 no prejudice\nThe Industrial Commission did not err in a workers\u2019 compensation case by concluding that that plaintiff worker\u2019s 2006 injury was compensable. The findings supported the conclusion that plaintiff had a reasonable excuse for delay in filing written notice and defendant was not prejudiced by the delay.\n2. Workers\u2019 Compensation \u2014 injury\u2014aggravation of preexisting condition\nThe Industrial Commission did not err in a workers\u2019 compensation case by concluding that plaintiff worker\u2019s 2008 injury was compensable. Dr. Lane\u2019s testimony, which the Full Commission found credible and relied upon, was competent evidence that supported the finding that plaintiff\u2019s 2008 injury materially aggravated his pre-existing condition.\n3. Workers\u2019 Compensation \u2014 directing medical treatment\u2014 discretion of Commission\nThe Industrial Commission did not abuse its discretion in a workers\u2019 compensation case by approving Dr. Lane as plaintiff worker\u2019s treating physician. Approval of an employee-selected physician is left to the sound discretion of the Commission.\nAppeal by defendant from Opinion and Award entered 3 April 2012 by the North Carolina Industrial Commission. Heard in the Court of Appeals 31 January 2013.\nKathleen Shannon Glancy, P.A, by Kathleen Shannon Glancy, for plaintiff-appellee.\nHedrick Gardner Kincheloe & Garofalo, LLP, by M. Duane Jones and Justin D. Robertson, for defendant-appellant." }, "file_name": "0820-01", "first_page_order": 830, "last_page_order": 849 }