Pierce v. AUTOCLAVE BLOCK CORPORATION , 27 N.C. App. 276 ( 1975 )

218 S.E.2d 510 (1975) 27 N.C. App. 276

Robert N. PIERCE, Employee, Plaintiff,
v.
AUTOCLAVE BLOCK CORPORATION, Employer,
Aetna Casualty and Surety Company, Carrier, Defendants.

No. 7519IC434.

Court of Appeals of North Carolina.

October 15, 1975. Discretionary Review Denied December 2, 1975.

Haywood, Denny & Miller by John D. Haywood, Durham, for plaintiff appellant.

Miller, Beck, O'Briant & Glass by Adam W. Beck, Asheboro, for defendant appellees.

Discretionary Review Denied by Supreme Court December 2, 1975.

BRITT, Judge.

Plaintiff's assignments of error relate to the commission's determination that plaintiff failed to prove reasonable excuse for not giving written notice as required by G.S. 97-22, and that defendant employer was prejudiced by the failure of plaintiff to give written notice within 30 days following the accident. We find no merit in the assignments.

G.S. 97-22 provides in pertinent part: "... 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."

The quoted statute clearly requires written notice by an injured employee to his employer within 30 days after the occurrence of the accident or death unless the commission is satisfied of two things: (1) that there was reasonable excuse for not giving the written notice, and (2) the employer was not prejudiced thereby.

We think it was incumbent on plaintiff to show reasonable excuse for failing to provide written notice. Garmon v. Tridair Industries, 14 N.C.App. 574, 188 S.E.2d 523 (1972). This he failed to do. With respect to lack of prejudice to defendant employer, for plaintiff to prevail on this point required a positive finding that defendant employer had not been prejudiced by failure of plaintiff to provide written notice. We think the commission was fully justified in declining to make that finding.

For the reasons stated, the order appealed from is

Affirmed.

PARKER and CLARK, JJ., concur.