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Risk Handling Hint - Written Notice; Reasonable Excuse; Actual Knowledge
In the course of bringing coffee and doughnuts to a morning meeting in 2006, James Yingling’s car was hit by another driver who ran a red light. Yingling called his supervisor and the branch manager, who both came to the scene of the accident, and later reported the accident to his manager in Charlotte. However, Yingling never gave Bank of America any written notice of the accident. Later that day, Yingling began feeling back pain and sought treatment, but continued to work for Bank of America. Two years later, Yingling suffered another work-related injury when he slipped and fell on a recently waxed floor. He did not return to work after that accident. Shortly thereafter, Yingling filed a written notice of a claim for both the 2008 slip-and-fall accident and the 2006 car crash. Defendants denied both claims, on the basis that Yingling failed to give written notice without reasonable excuse and that Defendants were prejudiced by the two year delay.
The case was heard by Deputy Commissioner James C. Gillen, who entered an Opinion and Award in favor of Yingling. Defendants appealed to the Full Commission, which affirmed the Deputy Commissioner’s decision. Defendants appealed.
On March 5, 2013, in Yingling v. Bank of Am., the Court of Appeals considered the case and upheld the Full Commission’s Opinion and Award. The Court first considered whether the Full Commission erred in rejecting Defendants’ lack of notice argument. Recounting the details of the case, the Court found Yingling provided actual notice to his supervisor, branch manager and manager in Charlotte, on the day of the accident. The Court further noted that although Yingling did not immediately seek medical treatment, he did soon thereafter and he notified Bank of America of his need to be absent from work to attend medical appointments. N.C.G.S. § 97-22 states the employer must have "knowledge of the accident"; but the Court found that it does not require knowledge of a "work-related injury" as argued by Defendants.
The Court then addressed the second prong of N.C.G.S. §97-22; prejudice to Defendants. In rejecting this argument, the Court held that Defendant had received sufficient notice of the accident, and so any prejudice it suffered was its own fault, so to speak. If Defendants had properly investigated the accident at the time it received actual notice and accepted the claim as compensable, it could have directed Yingling’s treatment and filed a third-party claim against the driver of the other vehicle.
The last argument addressed by the Court was whether the Full Commission erred in approving Yingling’s treating physician in light of the 2011 changes to N.C.G.S. § 97-25. The 2011 amendments only changed the word "physician" to "health care provider." The Court admonished that the change did 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. Moreover, the right to direct medical treatment is triggered only when the employer has accepted the claim as compensable. Nothing in the revised statute suggested to the Court that the Legislature intended to allow the employer to enjoy the benefits of choosing a treating physician without bearing the associated obligations, i.e., paying for medical treatment.
Risk Handling Hint:
Where the employer has some notice of a work-related injury,Yingling suggests that it is not enough to rely on an employee to report any ongoing medical issues. Risk managers must take affirmative steps to determine whether subsequent absences or medical treatment are due to the work-related incident.