IN THE SUPREME COURT OF NORTH CAROLINA
No. 51A22
Filed 16 June 2023
DONNA SPLAWN SPROUSE, Employee,
v.
MARY B. TURNER TRUCKING COMPANY, LLC, Employer, and ACCIDENT
FUND GENERAL INSURANCE COMPANY, Carrier
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, 281 N.C. App. 372 (2022), reversing and remanding an opinion
and award by the North Carolina Industrial Commission filed on 10 September 2019.
Heard in the Supreme Court on 14 March 2023.
Roberts Law Firm, P.A., by Scott W. Roberts and D. Brad Collins, for
plaintiff-appellant.
Holder Padgett Littlejohn & Prickett, by Laura L. Carter, for defendant-
appellees.
Lennon Camak & Bertics, PLLC, by Michael W. Bertics; and Jay Gervasi,
P.A., by Jay A. Gervasi, Jr., for North Carolina Advocates for Justice, amicus
curiae.
MORGAN, Justice.
This appeal concerns an opinion and award issued by the North Carolina
Industrial Commission (the Commission) in favor of plaintiff following a tractor-
trailer accident on 24 September 2016 in which both plaintiff and her husband, who
were employees of the Mary B. Turner Trucking Company, sustained injury.
Immediately after the accident, plaintiff provided notice to the employer and its
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Opinion of the Court
insurance carrier of the accident itself and of her husband’s injury, but did not report
any injury to herself. On appeal, defendants challenge whether the record contained
competent evidence from which the Commission could have reached its conclusions
that plaintiff’s own injury was causally related to the 24 September 2016 accident,
that plaintiff had a reasonable excuse for not providing written notice of her own
injury to defendants until 2018, that defendants were not prejudiced by plaintiff’s
delay in providing this written notice to them, and that plaintiff was totally disabled
from 28 September 2017 until 21 April 2018 as a result of her injury. This Court
recognizes that the Commission is the “sole judge of the credibility of the witnesses
and weight to be given their testimony.” Anderson v. Lincoln Constr. Co., 265 N.C.
431, 433–34 (1965), and that “[t]he appellate court does not retry the facts.” Morrison
v. Burlington Indus., 304 N.C. 1, 6 (1981). Rather, the reviewing court “merely
determines from the proceedings before the Commission whether sufficient
competent evidence exists to support its findings of fact.” Id. Just as in each of these
cited cases, the Commission’s findings of fact in the present matter were supported
by competent evidence and its conclusions of law were supported by the findings of
fact. As a result, the findings of fact of this specialized agency should have been
accorded proper deference and the agency’s decision should not have been disturbed
by the lower appellate court. Consequently, we reverse the decision of the Court of
Appeals and reinstate the opinion and award filed by the Commission on 10
September 2019.
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I. Procedural and Factual Background
Plaintiff and her husband, John Sprouse, were both employed as long-haul
tractor-trailer drivers by Mary B. Turner Trucking Company (defendant-employer)
in September 2016. On 24 September 2016, plaintiff was operating a tractor-trailer
for defendant-employer in a westerly direction on Interstate 40 in Tennessee when
the front right tire of the vehicle exploded. Consequentially, the tractor-trailer jerked
to the right and crashed into an embankment on the side of the thoroughfare.
Although the cab of the vehicle remained upright, the trailer which it was pulling
was upended by the force of the incident. The collision thrusted plaintiff’s head
severely enough that her eyeglasses and headset were flung from her head. On the
day of the wreck, plaintiff communicated with defendant-employer and verbally
informed the company of the accident. Plaintiff’s husband, who was also present in
the vehicle at the time of the accident, sustained foot and shoulder injuries which
were immediately reported to the Accident Fund General Insurance Company
(defendant-carrier), and subsequently accepted by the insurer as compensable.
Although plaintiff was “really sore and stiff” in the immediate aftermath of the
24 September 2016 accident, she did not seek medical attention for herself right away
because she was “more focused” on returning her husband to their home area in North
Carolina since he did not want to be treated by a doctor in Tennessee. However, two
days after the accident, plaintiff presented herself to her primary care provider Emily
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Opinion of the Court
Gantt, ANP-C1 at Shelby Medical Associates upon experiencing soreness and muscle
spasms. Gantt diagnosed plaintiff with low back and neck pain arising from the 24
September 2016 tractor-trailer accident in which plaintiff had been involved. The
nurse practitioner prescribed an anti-inflammatory medication and muscle relaxer
for plaintiff. Plaintiff had a history of neck pain, headaches, and intermittent sciatica
resulting from an earlier automobile accident for which she had received treatment,
but never missed significant time from work, prior to September 2016. On 13 October
2016, plaintiff returned to ANP-C Gantt and indicated to the nurse practitioner that
there had been some improvement in plaintiff’s condition. Between 26 January 2017
and 18 May 2017, plaintiff made three additional visits to her primary care provider
Gantt concerning issues unrelated to the two vehicular accidents in which plaintiff
had been involved, and plaintiff did not relate to Gantt during any of these three
additional visits that plaintiff was feeling any lingering neck or back pain. However,
plaintiff’s condition deteriorated to a point where she had begun dragging her right
foot as a result of pain emanating from her neck through her shoulders and down her
right leg into her right foot. Plaintiff testified before the Commission that she had
assumed at the time that this pain was not related to the tractor-trailer accident but
was associated with her history of sciatica.
In January 2017, both plaintiff and her husband returned to work for
defendant-employer. However, by 28 September 2017, plaintiff had developed
1 Adult Nurse Practitioner—Certified.
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weakness in her arms and a tingling sensation in her fingertips. She returned to see
ANP-C Gantt on that date, reporting “a lot of pain in her cervical and lumbar spine.”
At this medical appointment, plaintiff was diagnosed with cervical pain and acute
left lumbar radiculopathy, after which plaintiff was referred for an MRI2 of her
lumbar and cervical spine. Following her appointment with Gantt, plaintiff ceased
working and filed for short-term and long-term disability. On 29 November 2017,
plaintiff returned to the nurse practitioner Gantt and reported cervical pain and
lumbar spine pain radiating into plaintiff’s right buttock and down her right leg. An
MRI conducted on 7 December 2017 showed that plaintiff had “moderate to severe
spinal stenosis at L4-5, and mild to moderate spinal stenosis at L3-4.” On 14
December 2017, after plaintiff reported that her leg had given way which had led her
to fall twice since her previous visit to ANP-C Gantt, plaintiff’s primary care provider
referred plaintiff to Matthew J. McGirt, M.D., an expert in spinal neurosurgery who
practiced at Carolina Neurosurgery & Spine Associates in Charlotte, North Carolina.
Plaintiff first presented herself to Dr. McGirt on 27 December 2017, reporting
“a chief complaint of back, buttock, and radiating left leg pain.” Dr. McGirt noted that
plaintiff’s physical examination was “very concerning for cervical myelopathy” and
recommended an MRI of plaintiff’s cervical spine, suspecting cervical stenosis. The
spinal neurosurgeon also recommended an epidural steroid injection for plaintiff’s
back pain. Plaintiff’s cervical MRI study, conducted on 8 January 2018, revealed
2 A medical diagnostic technique known as magnetic resonance imaging.
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“focal spinal cord signal abnormality,” a “large central disc extrusion,” and “moderate-
to-severe bilateral neural foraminal stenosis” at the C5-C6 level. The diagnostic study
also showed a “[l]arge left paracentral disc extrusion” and “mild right and severe left
neural foraminal stenosis” at the C6-C7 level. The radiologist’s interpretation stated
that the “focal cord signal abnormality . . . suggest[ed] edema and/or myelomalcia.”
On 10 January 2018, when plaintiff returned to Dr. McGirt in order to discuss
plaintiff’s MRI results, the physician observed that plaintiff “definitely ha[d]
myelopathy with weakness in her hands[,] numbness in her hands[,] dropping
things[,] and significant gait abnormalities[,] all which progressed over the last year.”
Dr. McGirt recommended a two-level anterior cervical discectomy and fusion (ACDF)
from C5 to C7, explaining that without this surgery, plaintiff’s condition was likely
to worsen due to the degree of severity to which plaintiff’s spinal cord had been
pinched.
On 8 February 2018, plaintiff, through counsel, filed a Form 18 Notice of
Accident to Employer, indicating that she had been injured as a result of her accident
on 24 September 2016. On 12 February 2018, the spinal neurosurgeon McGirt
performed an ACDF on plaintiff, during which he removed “two large herniated discs
which had herniated back and compressed the spinal cord” and “then rebuilt that by
putting in two cages and some screws and a plate to hold that together for the two-
level fusion.” On 20 February 2018, plaintiff submitted a post-surgical claim for her
asserted work injury to defendant-carrier. Plaintiff provided a recorded statement
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and told the insurance claims adjuster, Donshe Usher of Third Coast Underwriters,
that plaintiff did not report a workers’ compensation injury immediately following
the 24 September 2016 accident because “[she] didn’t think [she] was hurt that bad”
and had assumed that her claim would be “dropped” as a result of her medical history.
Usher had also been the insurance claims adjuster for the insurance claim of
plaintiff’s husband which arose out of the 24 September 2016 accident and, when
plaintiff mentioned her husband’s claim during plaintiff’s recorded statement, Usher
stated that “if you’re going to talk about your John I’m going to have to disconnect
the call.” The audio portion of the interview call between insurance claims adjuster
Usher and plaintiff was soon disconnected, and Usher filed a Form 61 Denial of
Workers’ Compensation Claim on the same day.
On 17 April 2018, plaintiff returned to Dr. McGirt for a follow-up visit after Dr.
McGirt’s performance of plaintiff’s ACDF surgical procedure. Plaintiff reported that
she was “doing extremely well” at this time and was “very pleased with her early
outcome.” Plaintiff reported no neck pain and informed Dr. McGirt that she felt
stronger. Dr. McGirt released plaintiff “to return to work without restrictions the next
week.” On 21 April 2018, approximately two months after her surgery, plaintiff
returned to work with defendant-employer. Plaintiff was last treated at Carolina
Neurosurgery & Spine Associates on 11 July 2018 for her final post-operative follow-
up visit and was discharged to consult with a physiatrist for an evaluation of her “left
lower extremity radiculopathy” and “left hand numbness.”
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On 22 May 2019, Deputy Industrial Commissioner A.W. Bruce filed an opinion
and award in favor of plaintiff after reviewing plaintiff’s claim. Defendants appealed.
After hearing the parties’ arguments on 15 October 2019, the Full Commission
entered an opinion and award affirming Deputy Commissioner Bruce’s decision for
plaintiff based on the record of the proceedings before Deputy Commissioner Bruce.
The record included the deposition transcripts of both Dr. McGirt and the ANP-C
Gantt, the Form 44 Application for Review, and the briefs and arguments of the
parties. Among its findings of fact, the Industrial Commission included the following:
21. At his deposition, Dr. McGirt testified that the
symptoms documented in Plaintiff’s medical records prior
to September 24, 2016, were different from the neurological
dysfunction and loss of function (i.e. “weaknesses and
numbness”) for which he treated Plaintiff. Dr. McGirt
further opined that it was more likely than not that the
September 24, 2016 tractor trailer wreck caused the two
levels of herniated discs in Plaintiff’s spine and that the
herniations necessitated the surgery he performed. Dr.
McGirt also testified Plaintiff would have been unable to
work from September 28, 2017, when Plaintiff began
experiencing numbness and weakness. Dr. McGirt released
Plaintiff to return to work without restrictions following
her April 17, 2018 appointment.
22. According to Dr. McGirt, Plaintiff was “pretty
tough because . . . she had some pretty darn significant
weakness that she was not coming in and screaming nor
did we have a long drawn out workers [sic] comp
conversation nor a causation conversation.” Dr. McGirt
further testified that “she didn’t realize that she had a
spinal cord issue” and that such a delay in symptoms is not
“out of the realm of what we typically see in spinal cord
compression.”
23. Based upon the preponderance of the evidence in
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view of the entire record, the Full Commission finds that
Plaintiff sustained an injury by accident arising out of and
in the course of her employment with Defendant-Employer
when she was injured in the wreck of September 24, 2016.
The Full Commission further finds that Defendant-
Employer had actual notice of Plaintiff’s September 24,
2016 injury by accident on or about September 24, 2016,
when Plaintiff reported the wreck to the Defendant-
Employer, and that Plaintiff had a reasonable excuse for
the delay in providing written notice of her accident to
Defendant-Employer as she did not reasonably know of the
nature or seriousness of her injury immediately following
the accident. The Full Commission further finds that
Defendants failed to show they were prejudiced by any
delay in the notice of Plaintiff’s accident. _
24. Based upon the preponderance of the evidence in
view of the entire record, the Full Commission finds the
medical treatment Plaintiff received from Dr. McGirt was
reasonable and necessary to effect a cure, give relief, and
lessen the period of disability from the cervical spine injury
Plaintiff sustained on September 24, 2016.
25. Based upon the preponderance of the evidence in
view of the entire record, the Full Commission finds that
Plaintiff was unable to work from September 28, 2017 until
April 21, 2018, the date she returned to work for
Defendants.
From its findings of fact, the Commission made, inter alia, the following conclusions
of law:
2. . . . [T]he greater weight of the credible evidence
establishes that Plaintiff’s cervical spine injury was caused
by Plaintiff’s September 24, 2016 work accident. N.C. Gen.
Stat. § 97-2(6) (2019).
....
4. . . . Plaintiff had a reasonable excuse for not
providing written notice within 30 days because Plaintiff
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communicated with her employer on the date of the
accident and because she did not reasonably know of the
nature or seriousness of her injury immediately following
the accident. . . .
5. . . . Defendants have failed to show prejudice
resulting from the delay in receiving written notice because
Defendant-Employer had actual, immediate notice of
Plaintiff’s accident on the day of the accident. The actual
notice provided to Defendant-Employer allowed ample
opportunity to investigate Plaintiff’s condition following
the violent truck accident and direct Plaintiff’s medical
care. Thus, Defendants were not prejudiced by the delay in
receiving written notice. Because Plaintiff has shown a
“reasonable excuse” for not providing written notice of her
accident to Defendants within 30 days, and because the
evidence of record fails to show Defendants were prejudiced
by not receiving written notice within 30 days, Plaintiff’s
claim is not barred pursuant to N.C. Gen. Stat. § 97-22
(2019).
6. . . . Dr. McGirt opined that Plaintiff was unable to
work from September 27, 2017 to April 20, 2018, which
prevented her from working in her job as a long-haul
tractor trailer driver or any other employment. Plaintiff
was temporarily totally disabled from September 28, 2017
until April 21, 2018.
Based upon the abovementioned findings of fact and conclusions of law, along with
the Commission’s other findings and conclusions, and the parties’ stipulations, the
Commission approved plaintiff’s claim and issued an award in her favor. Defendants
filed a timely notice of appeal.
In an opinion filed on 18 January 2022, Sprouse v. Turner Trucking Co., 281
N.C. App. 372 (2022), a divided panel of the Court of Appeals reversed and remanded
the Commission’s opinion and award on the grounds that: (1) the Commission’s
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conclusion of law that plaintiff’s condition was causally related to the 24 September
2016 accident was unsupported by the Commission’s findings of fact; (2) plaintiff had
failed to provide a reasonable excuse for failing to timely notify defendants of her
injury and also failed to demonstrate that defendants were not prejudiced by
plaintiff’s delay in reporting her injury; and (3) undisputed facts showed that plaintiff
was only disabled from 10 January 2018 to 21 April 2018. Id. at 381. In the dissenting
judge’s view, the majority misapplied the applicable standard of review and
improperly reweighed the evidence in favor of defendants in order to reach its
decision. Id. at 382 (Jackson, J., dissenting). Plaintiff filed a timely notice of appeal
to this Court pursuant to North Carolina General Statute § 7A-30(2) on the basis of
the dissent.
II. Analysis
The issues before this Court on appeal are whether, in determining plaintiff’s
claim, the Commission erred by concluding that: (1) plaintiff’s condition was causally
related to the 2016 accident; (2) plaintiff had a reasonable excuse for her delay in
providing written notice to defendants of her injury which resulted from the 24
September 2016 accident and this delayed notice did not prejudice defendants; and
(3) plaintiff was disabled from 28 September 2017 until 21 April 2018.
The North Carolina Industrial Commission is the fact-finding body under the
Workers’ Compensation Act. See, e.g., Brewer v. Powers Trucking Co., 256 N.C. 175,
182 (1962). As the finder of fact, the Commission “is the sole judge of the credibility
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of the witnesses and the weight to be given their testimony.” Anderson, 265 N.C. at
433–34. An appellate court “does not have the right to weigh the evidence and decide
the issue on the basis of its weight. The court’s duty goes no further than to determine
whether the record contains any evidence tending to support the finding.” Id. at 434
(emphasis added); see also N.C.G.S. § 97-86 (2021) (“The award of the Industrial
Commission . . . shall be conclusive and binding as to all questions of fact. . . .”). In
this regard, the state appellate courts are limited when reviewing opinions and
awards issued by the Commission to determinations of: (1) whether the Commission’s
findings of fact are supported by competent evidence, and (2) whether the
Commission’s conclusions of law are justified by its findings of fact. See, e.g., Clark v.
Wal-Mart, 360 N.C. 41, 43 (2005). Finally, “[t]he evidence tending to support
plaintiff’s claim is to be viewed in the light most favorable to plaintiff, and plaintiff is
entitled to the benefit of every reasonable inference to be drawn from the evidence.”
Deese v. Champion Int’l Corp., 352 N.C. 109, 115 (2000) (quoting Adams v. AVX Corp.,
349 N.C. 676, 681 (1998)).
At each stage of its analysis in the present case, the Court of Appeals majority
significantly departed from these well-established principles of appellate review by
making its own credibility determinations, viewing the evidence in a light which was
not most favorable to plaintiff, and usurping the Commission’s role as factfinder in
this workers’ compensation matter. Conversely, in applying here the standards
governing appellate review which this Court has routinely recognized and utilized,
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we determine that the Commission’s findings of fact were supported by competent
evidence and that these findings, in turn, justified the agency’s conclusions of law. As
an appellate court, our duty goes no further. See, e.g., Cunningham v. Goodyear Tire
& Rubber Co., 381 N.C. 10, 16 (2022). As a result, we reverse the lower appellate
court’s determinations of error and fully reinstate the Commission’s opinion and
award.
a. Causal Relation
Under the Workers’ Compensation Act, “an ‘injury’ is compensable when it is
(1) by accident, (2) arising out of employment, and (3) in the course of employment.”
Wilkes v. City of Greenville, 369 N.C. 730, 737 (2017) (citing N.C.G.S. § 97-2(6) (2015)).
The claimant in a workers’ compensation case bears the burden of initially proving
each element of compensability, including a causal relationship between her injury
and a work-related incident. Whitfield v. Lab’y Corp. of Am., 158 N.C. App. 341, 350
(2003). To establish sufficient causation when complicated medical questions are
involved, expert testimony that meets “the reasonable degree of medical certainty
standard necessary to establish a causal link” must be presented. Holley v. ACTS,
Inc., 357 N.C. 228, 234 (2003). This evidence “must be such as to take the case out of
the realm of conjecture and remote possibility.” Gilmore v. Hoke Cnty. Bd. of Educ.,
222 N.C. 358, 365 (1942). Furthermore, “where the exact nature and probable genesis
of a particular type of injury involves complicated medical questions far removed from
the ordinary experience and knowledge of laymen, only an expert can give competent
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opinion evidence as to the cause of the injury.” Click v. Pilot Freight Carriers, Inc.,
300 N.C. 164, 167 (1980). Nonetheless, because the Commission “is the sole judge of
the credibility of the witnesses and the weight to be given to their testimony,” it may
“accept or reject the testimony of a witness solely on the basis of whether it believes
the witness or not.” Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595 (1982).
In the instant case, the Commission concluded that plaintiff’s injury—
specifically, the compression of her spinal cord as the result of two large disc
herniations—resulted from the 24 September 2016 accident on the basis of spinal
neurosurgeon McGirt’s testimony that it would “take a pretty good force” to produce
such an injury and that this accident was the “most sizable injury” in plaintiff’s recent
history. Consequently, the medical doctor rendered his conclusion that it was “more
likely than not that [the 24 September 2016 accident] caused and contributed to some
degree to that cervical disease.” Dr. McGirt also concluded, to a reasonable degree of
medical certainty, that the 24 September 2016 accident was a proximate cause in
plaintiff’s development of the two herniated discs in her cervical spine and that the
crash was one of the reasons, or a proximate cause, necessitating surgical
intervention. In response to cross-examination by defense counsel, Dr. McGirt
specifically testified that plaintiff’s history of back, neck, and limb pain did not
influence his expert opinion on the cause of plaintiff’s injury at issue because “pain
syndrome [is] very different than what [Dr. McGirt] was treating which was
neurological dysfunction and loss of function.” Finally, the spinal neurosurgeon
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testified that this type of spinal cord injury often takes one to two years to become
symptomatic. Although ANP-C Gantt also testified in this workers’ compensation
case, Dr. McGirt was the only witness who was tendered as a medical expert in this
matter.
Because the testimony of the spinal neurosurgeon McGirt was the only expert
testimony presented regarding the areas which we identified in Click as “the exact
nature and probable genesis” of plaintiff’s injury which “involves complicated medical
questions,” then Dr. McGirt’s testimony obviously constituted the only “competent
opinion evidence as to the cause of the injury.” 300 N.C. at 167. This sole expert
testimony, which included the only competent opinion evidence from an expert here,
directly supported the Commission’s Finding of Fact 23 that plaintiff’s injury arose
out of and in the course of her employment with defendant-employer as a result of
the accident which occurred on 24 September 2016. In turn, this finding supported
the Commission’s conclusion of law that “the greater weight of the credible evidence
establishes that Plaintiff’s cervical spine injury was caused by Plaintiff’s September
24, 2016 work accident.” Because some competent evidence—indeed, the only
competent opinion evidence provided at plaintiff’s hearing on the issue of causation—
supported the Commission’s findings, the Court of Appeals was constrained to affirm
the agency’s determinations on this factual issue. See Anderson, 265 N.C. at 434.
Instead, the lower appellate court decided that uncontested facts presented to
the Commission established that plaintiff’s “chronic medical conditions” existed prior
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to the 24 September 2016 accident and that the Commission therefore erred by
concluding that plaintiff’s injury was causally related to her work accident. Sprouse,
281 N.C. App. at 379. The Court of Appeals reached this outcome primarily based on
the documented history of plaintiff’s intermittent sciatica addressed in her medical
records to which both parties stipulated. Id. at 378–79. However, a claimant’s medical
history, even though it may contain relevant diagnoses that predate the claimant’s
work-related incident, is not dispositive of whether a particular injury—in this case,
plaintiff’s two herniated discs and the resulting compression to her spinal cord—may
be causally related to a workplace accident. A claimant’s pre-existing medical
condition cannot properly be deemed to constitute a complete bar to a successful
workers’ compensation claim when a plaintiff provides evidence to support the
Commission’s conclusion that a work-related accident has caused a new injury that
aggravated or accelerated the individual’s pre-existing condition. See Anderson v. Nw.
Motor Co., 233 N.C. 372, 374 (1951); Morrison, 304 N.C. at 18.
The appellate courts may not abandon the Commission’s factual
determinations when such determinations are supported by any competent evidence.
Anderson v. Lincoln Constr., 265 N.C. at 434; see N.C.G.S. § 97-86 (2021). Consistent
with our pronouncement in Brewer, the lower appellate court was not at liberty here
to reweigh the evidence in the record by placing primary emphasis on plaintiff’s pre-
existing intermittent sciatica or any other matters in her medical history where there
was “any evidence tending to support the [agency’s] finding.” Anderson, 265 N.C. at
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434. Here, spinal neurosurgeon McGirt, as the only expert witness in this case,
supplied testimony which constituted evidence tending to support the Commission’s
finding that plaintiff’s injury was causally related to her 24 September 2016 accident.
Therefore, the Commission’s Finding of Fact 23 was appropriately entered and the
Commission’s determination of medical causation in favor of plaintiff was properly
reached.
b. Timely Notice
Under section 97-22, an injured worker is required to give written
notice of an accident to her employer within thirty days of the accident’s occurrence
or she may be barred from receiving compensation under the North Carolina Workers’
Compensation Act. N.C.G.S. § 97-22 (2021). However, this statutory requirement may
be waived if the Industrial Commission is satisfied that (1) the plaintiff had a
reasonable excuse for not giving such notice, and (2) the employer was not prejudiced
thereby. Id. A claimant is required to substantiate a reasonable excuse for her failure
to comply with the statutory notice requirements. Jones v. Lowe’s Cos., 103 N.C. App.
73, 75 (1991). Furthermore, “[s]ection 97-22 gives the Industrial Commission the
discretion to determine what is or is not a ‘reasonable excuse.’ ” Chavis v. TLC Home
Health Care, 172 N.C. App. 366, 377 (2005) (quoting N.C.G.S. § 97-22 (“[U]nless
reasonable excuse is made to the satisfaction of the Industrial Commission . . .”
(alterations in original) (emphasis omitted))), app. dismissed, 360 N.C. 288 (2006).
The Court of Appeals has cogently defined “reasonable excuse” to “include a belief
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that one’s employer is already cognizant of the accident” as well as to encompass
situations “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.” Jones, 103 N.C. App. at 75 (extraneity omitted); see also Lawton
v. County of Durham, 85 N.C. App. 589, 592–93 (1987).
In the present case, the Commission found both that (1) defendant-employer
had actual notice of the 24 September 2016 accident because plaintiff verbally
reported the wreck to defendant-employer on the date of the accident and (2) plaintiff
had a reasonable excuse for the delay in providing written notice to defendant-
employer because she did not reasonably know of the nature or seriousness of her
injury immediately following the accident. As a result, the Commission concluded
that plaintiff had a reasonable excuse for not providing written notice of the accident
to defendant-employer within thirty days of the accident’s occurrence because she
had “communicated with her employer on the date of the accident and because she
did not reasonably know of the nature or seriousness of her injury immediately
following the accident.” It is noteworthy that the Commission’s finding that plaintiff
had communicated with defendant-employer on the date of the accident to inform the
trucking company of the crash was not challenged on appeal and is therefore binding
upon our appellate review. In addition, the Commission’s finding that plaintiff lacked
reasonable knowledge of the nature and seriousness of her resulting injury was
supported by competent evidence because the spinal neurosurgeon McGirt testified
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that plaintiff “didn’t realize that she had a spinal cord issue” at her previous
appointments and because plaintiff told defendant-carrier that she did not believe
that she “was hurt that bad” immediately following the accident. Because this finding
by the Commission was supported by competent evidence, it is likewise binding upon
our appellate review. These findings of fact adequately supported the Commission’s
conclusion of law that plaintiff had established reasonable excuse for her failure to
provide timely written notice of the accident in accordance with N.C.G.S. § 97-22.
Even where a worker can show such reasonable excuse, nonetheless her claim
will still be barred if her employer can show that it was prejudiced by the lack of
written notice provided within the statutory time period. Yingling v. Bank of Am.,
225 N.C. App. 820, 832 (2013). While N.C.G.S. § 97-22 itself does not specify which
party in a workers’ compensation action bears the burden of proof in establishing
whether a defendant-employer was prejudiced by a plaintiff claimant’s failure to
comply with this statutory written notice requirement, the Court of Appeals has
heretofore plausibly opined that the defendant-employer bears the burden of showing
prejudice once a claimant has satisfactorily provided a reasonable excuse for her
failure to provide written notice of the accident in which she was injured to the
defendant-employer within thirty days of the accident’s occurrence. See, e.g.,
Yingling, 225 N.C. App. at 832; Chavis, 172 N.C. App. at 378; Lakey v. U.S. Airways,
Inc., 155 N.C. App. 169, 172–73 (2002), disc. rev. denied, 357 N.C. 251 (2003); Peagler
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v. Tyson Foods, Inc., 138 N.C. App. 593, 604 (2000).3 Because the purpose of the
statutory written notice requirement is two-fold—to allow the employer to “provide
immediate medical diagnosis and treatment with a view to minimizing the
seriousness of the injury” as well as to “facilitate[ ] the earliest possible investigation
of the circumstances surrounding the injury”—an employer may show that it was
prejudiced either by proving that the employer was denied the ability to direct a
plaintiff’s appropriate medical care or that the employer was unable to investigate
the circumstances surrounding the plaintiff’s injury. Booker v. Duke Med. Ctr., 297
N.C. 458, 481 (1979).4
The Commission’s conclusion in the instant case that defendant-employer was
not prejudiced by plaintiff’s failure to comply with the statutory written notice
requirement is supported by the agency’s findings which we deem to be consistent
with our stated view in this area of law. The purposes of the notice requirement have
been determined to be vindicated despite lack of timely written notice when a plaintiff
received appropriate medical care and the defendant-employer “had immediate,
3 This assignment of the burden of proof conforms to N.C.G.S. § 97-23, which expressly
assigns the burden of proving prejudice to employer-defendants on the issue of inadequate or
defective notice. N.C.G.S. § 97-23 (2021) (“No defect or inaccuracy in the notice shall be a bar
to compensation unless the employer shall prove that his interest was prejudiced thereby. . .
.”); see also Gregory v. W.A. Brown & Sons, 363 N.C. 750, 757 (2010) (discussing section 97-
23).
4 We disavow any indication by the Court of Appeals that an injured worker’s failure
to provide written notice to the defendant-employer for a period of at least 471 days is per se
prejudicial and does not require the presentation of any additional evidence in order to show
whether the defendant-employer was actually prejudiced by the failure to provide written
notice within the thirty-day statutory time period.
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actual knowledge of the accident and failed to further investigate the circumstances
surrounding the accident at that time.” Yingling, 225 N.C. App. at 834 (citation
omitted); see also Gregory v. W.A. Brown & Sons, 363 N.C. 750, 759–62 (2010)
(contemplating that “[f]indings of fact to the effect that [the] purposes of the notice
requirement were vindicated despite the lack of timely written notice of an employee’s
accident could . . . support a legal conclusion that the employer was not prejudiced by
the delay in written notice.”). In keeping with our quoted observation in Gregory while
approvingly referencing Yingling, we hold in the current case that the dual purposes
of the notice requirement were vindicated despite the lack of timely written notice
because: (1) plaintiff provided defendant-employer with actual notice of the 24
September 2016 accident on the same day that the accident occurred, (2) defendants
failed to further investigate the circumstances surrounding the accident at the time,
(3) plaintiff received proper and appropriate medical care for her injury which
considerably improved her condition, and (4) defendants failed to show that they were
otherwise prejudiced by any delay in receiving written notice of plaintiff’s injury.
First, the Commission in this case found as fact that defendant-employer had
received actual notice from plaintiff of the 24 September 2016 accident on the date of
the wreck. This finding of fact was not challenged on appeal and is therefore binding
on review. From its findings, the Commission concluded that defendants were not
prejudiced by the lack of timely written notice because actual notice allowed ample
opportunity for defendants to investigate plaintiff’s condition following the accident
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Opinion of the Court
and to direct plaintiff’s medical treatment. Furthermore, defendants did not present
any evidence which tended to suggest that they were unable to investigate the 24
September 2016 accident, the crash’s attendant circumstances, or plaintiff’s condition
following the accident. Of course, given that defendants were able to sufficiently
investigate the accident in order to satisfactorily conclude that the claim submitted
by plaintiff’s husband was compensable, then it is unassailable that a recognized
purpose of the notice requirement—namely, that defendants be provided with a
reasonable opportunity to investigate the circumstances of a work accident from
which an employee’s injury was alleged to have resulted—was vindicated in this case
despite the lack of receipt of statutory written notice of plaintiff’s injury.
Second, there was no evidence presented which tended to demonstrate that
defendants were prejudiced due to lack of timely written notice of plaintiff’s injury
which resulted in defendants’ inability to direct plaintiff’s prompt and proper medical
treatment. Defendants contend that the spinal neurosurgeon McGirt forced a course
of treatment that may not have been required if plaintiff had received adequate
medical treatment from the date of her injury. Although defendants claim that
plaintiff’s injury was either exacerbated by some delay in her medical treatment or
that plaintiff was provided improper or inappropriate medical care which may have
worsened her condition, thereby necessitating Dr. McGirt’s surgical intervention at a
later date, defendants did not offer any evidence to support these contentions.
Defendants produced no expert testimony to support their assertions either that
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Opinion of the Court
plaintiff’s course of treatment would have been different, or that surgical intervention
could have been avoided in the event that plaintiff had supplied written notice of her
injury to them within the prescribed statutory time period. Similarly, defendants
presented no expert testimony to support their assertion that Dr. McGirt’s surgical
intervention may not have been required at all to treat plaintiff’s condition. These
unsupported assertions pale in the face of the Commission’s finding, grounded in
competent evidence which was offered in the form of spinal neurosurgeon McGirt’s
own testimony, that “the medical treatment Plaintiff received from Dr. McGirt was
reasonable and necessary to effect a cure, give relief, and lessen the period of
disability from the cervical spine injury Plaintiff sustained on September 24, 2016.”
Finally, even if defendants were able to demonstrate that they could have
facilitated superior medical intervention which might have diagnosed, treated, or
otherwise minimized plaintiff’s injury in the event that they had been provided timely
written notice as established in N.C.G.S. § 97-22, we are not persuaded that
defendants could demonstrate, under the particular facts of the present case, that
any right to direct plaintiff’s appropriate medical care was denied to them given the
fact that defendants refused to accept plaintiff’s claim as compensable upon the
presentation of the claim. Generally speaking, employers do not have a right to direct
medical care for denied claims. Lauziere v. Stanley Martin Cmtys., LLC, 271 N.C.
App. 220, 224 (2020) (“[W]e have ‘long held that the right to direct medical treatment
is triggered only when the employer has accepted the claim as compensable.’ ”
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Opinion of the Court
(quoting Yingling, 225 N.C. App. at 838)), aff’d per curiam, 376 N.C. 789 (2021); see
also Kanipe v. Lane Upholstery, 141 N.C. App. 620, 624 (2000) (“[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.”).
Here, defendants denied plaintiff’s claim on the grounds, inter alia, that her injury
was not causally related to the 24 September 2016 accident. Defendants continue to
challenge the issue of medical causation before this Court on appeal. Based on this
stance, defendants would not have had any right to direct plaintiff’s medical care
after the 24 September 2016 accident, regardless of whether they had been provided
statutory written notice of plaintiff’s injury.5 For these reasons, we hold that the
Commission properly found that defendants failed to show any prejudice as the result
of plaintiff’s failure to provide written notice of her injury within the thirty-day
statutory time period.
c. Date of Disability
Under the North Carolina Workers’ Compensation Act, disability is defined as
“incapacity because of injury to earn the wages which the employee was receiving at
5 We do not presume to conclude that there is absolutely no factual scenario in which
a defendant to a workers’ compensation case may be able to offer evidence tending to
demonstrate that a worker received entirely inappropriate or inadequate medical care which
aggravated her damages in order to limit its own liability for a worker’s injury despite the
defendant’s failure to accept the worker’s injury as compensable in the first instance. We
merely apply to this case the general principle that defendants lack the right to direct the
course of medical treatment for injuries which they deny as non-compensable and therefore
cannot, under such circumstances, prove prejudice on the sole grounds that they may have
directed a different course of treatment.
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Opinion of the Court
the time of injury in the same or any other employment.” N.C.G.S. § 97-2(9) (2021).
“In workers’ compensation cases, a claimant ordinarily has the burden of proving both
the existence of his disability and its degree.” Hilliard, 305 N.C. at 595. In order to
conclude that a plaintiff is or was disabled, the Industrial Commission must find:
(1) that plaintiff was incapable after his injury of earning
the same wages he had earned before his injury in the same
employment, (2) that plaintiff was incapable after his
injury of earning the same wages he had earned before his
injury in any other employment, and (3) that this
individual’s incapacity to earn was caused by plaintiff’s
injury.
Id. (citation omitted). In the present case, the Court of Appeals held that the
Commission had erred by concluding that plaintiff was temporarily totally disabled
from 28 September 2017 to 21 April 2018 because it wasn’t until 10 January 2018
that Dr. McGirt recommended that plaintiff stop work due to her condition. Sprouse,
281 N.C. App. at 381. Once again, the lower appellate court reached its conclusion on
this issue by abandoning the applicable standard of review and making its own
factual determinations instead of merely considering whether the Commission’s
findings of fact were supported by competent evidence and whether those findings, in
turn, supported the Commission’s conclusion of law that plaintiff’s total disability
began on 28 September 2017.
We affirm the Commission’s sixth conclusion of law that plaintiff was
temporarily totally disabled starting on 28 September 2017 because this conclusion
was justified by Finding of Fact 21 that plaintiff would have been unable to work as
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Opinion of the Court
of 28 September 2017 when she began to experience numbness and weakness in her
extremities. Finding of Fact 21 was drawn from spinal neurosurgeon McGirt’s
testimony that plaintiff should not have been working upon the onset of these
symptoms. Specifically, Dr. McGirt testified that plaintiff’s disability began on 28
September 2017, when plaintiff noted significant pain in her cervical and lumbar
spine which radiated into her neck and arms, created tingling in her fingers, and
caused weakness in her arms. At this point, Dr. McGirt rendered his expert testimony
that “she should not have been working” and that “[a]ny patient who has that degree
of spinal cord compression should not be working.” The spinal neurosurgeon further
testified that “the standard of care in neurosurgery or orthopedic spine surgery is
somebody with severe cervical stenosis from disc herniations should not be allowed
to drive those cars or professionally go back to work until they’re fixed.” Lastly, Dr.
McGirt was able to conclude to a reasonable degree of medical certainty that these
herniations had occurred during the 24 September 2016 accident, although the onset
of plaintiff’s disabling symptoms manifested approximately one year later. Although
plaintiff was not formally diagnosed with cervical stenosis and removed from work
by Dr. McGirt until 10 January 2018, it was the spinal neurosurgeon’s expert opinion
that plaintiff was unable to work at the onset of her symptoms in September 2017.
This evidence was competent to support the Commission’s finding of fact that plaintiff
was unable to work beginning on 28 September 2017 which, in turn, justified its
conclusion of law that plaintiff’s temporary total disability also began on 28
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Opinion of the Court
September 2017.
III. Conclusion
Upon the application of the proper standard of review, we determine that the
Industrial Commission did not err in its issuance of an opinion and award in favor of
plaintiff in this matter. The agency’s findings of fact were supported by ample
competent evidence and, in turn, its conclusions of law were supported by the findings
of fact. Accordingly, we reverse the decision of the Court of Appeals and direct that
court to fully reinstate the Commission’s opinion and award.
REVERSED.
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