Garmon v. Tridair Industries, Inc. , 14 N.C. App. 574 ( 1972 )

188 S.E.2d 523 (1972) 14 N.C. App. 574

Clarence A. GARMON, Plaintiff,
v.
TRIDAIR INDUSTRIES, INC., Employer, and Transport Insurance Company, Carrier, Defendants.

No. 72261C305.

Court of Appeals of North Carolina.

May 24, 1972.

S. Dean Hamrick, Charlotte, for plaintiff appellant.

Kennedy, Covington, Lobdell & Hickman, by Edgar Love, III, Charlotte, for defendants appellees.

BRITT, Judge.

Plaintiff alleges error in the conclusion of law that he did not sustain an injury by accident as defined by G.S. § 97-2(6), contending that the conclusion is not consistent with the findings of fact and the evidence. We do not agree with this contention. The question presented by the contention is whether there was evidence in the record to support the finding made by the commission that plaintiff had not sustained an injury by accident. The court does not weigh the evidence as this would invade the province and function of the commission. "If there is any evidence of substance which directly, or by reasonable inference, tends to support the findings, the courts are bound by them, ``even though there is evidence that would have supported a finding to the contrary.' Keller v. Electric Wiring Co. [259 N.C. 222, 130 S.E.2d 342], supra." Bigelow v. Tire Sales Co., 12 N.C.App. 220, 225, 182 S.E.2d 856, 860 (1971).

The commission found as a fact, from competent evidence, without objection by plaintiff that he was "performing his usual and customary duties for the defendant employer. . . . Plaintiff placed his knees against the stand to lift same and move it over, beyond the welding cables and as he lifted the stand, he felt a sharp pain in his back."

From this finding the commission concluded that the only unusual occurrence was that plaintiff felt a pain in his back. In Bigelow, supra, the court held that in order to have a compensable accident, there must be interruption of the work routine and the introduction of unusual conditions likely to result in unexpected consequences. There was no showing of such circumstances or interruption of the work routine here; therefore, the conclusion of law by the commission that plaintiff did not sustain an injury by accident is fully supported by competent evidence and as such will not be disturbed on appeal.

Plaintiff also contends there is error in the conclusion of law by the full commission, absent any finding by the hearing commissioner, that plaintiff failed to give written notice of the alleged accident to the employer in compliance with G.S. § 97-22. The fact that no reference was made to this point by the hearing commissioner does not preclude such finding by the full commission. The Industrial Commission has authority to review, modify, adopt, or reject findings of a hearing commissioner and may ex mero motu strike out a finding of the hearing commissioner and his conclusion of law based thereon in order to make the record comply with the law, even though there is no exception to the finding or conclusion. Brewer v. Powers Trucking Co., 256 N.C. 175, 123 S.E.2d 608 (1962); Petty v. Associated Transport, 4 N.C.App. 361, 167 S.E.2d 38 (1969), rev'd on other grounds, 276 N.C. 417, 173 S.E.2d 321 (1970); G.S. § 97-85. Therefore, the proposition becomes one of whether there is evidence to support such a finding by the commission.

G.S. § 97-22 calls for written notice and provides in part: "(B)ut 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." (Emphasis ours.) Plaintiff tendered incapacity as the excuse for not filing written notice, yet it was 20 April 1970 before he filed the notice— nearly three months after the alleged accident and more than a month after he was discharged from the hospital. The extent of plaintiff's incapacity is indicated by his statement that "I wasn't able to get around much at that time." The evidence is plenary to substantiate the commission's finding that no written notice was filed in the time required and that plaintiff has failed to provide a reasonable excuse to justify the lateness of the notice. In addition the record is devoid of any showing by plaintiff that the employer was not prejudiced by plaintiff's failure to comply with G.S. § 97-22. For these reasons the relevant findings of fact and conclusions of law are upheld.

The order and award of the full commission is

Affirmed.

CAMPBELL and GRAHAM, JJ., concur.