Do You Know the Rule: Waiver of 30-day Notice of Accident in N.C. 

Charlotte, NC (WorkersCompensation.com) -- In North Carolina, a workers’ compensation claim is not viable unless the injured employee notified the employer in writing within 30 days of the accident. But there are also circumstances when the notice requirement may not stand in the way of the worker obtaining benefits. Under these circumstances, the Industrial Commission may waive the requirement. 

General Rule 

In North Carolina, an injured worker is required to give written notice of an accident to her employer within 30 days of the accident's occurrence. Otherwise, he may be barred from receiving compensation under the North Carolina Workers' Compensation Act. N.C.G.S. § 97-22 (2021). 

Waiver of Notice Requirement 

The Commission may allow the worker to obtain compensation, despite failure to meet the above rule, under certain circumstances. 

The Commission may waive the requirement if: 

1. The worker had a reasonable excuse for not giving such notice; and 

2. The employer was not prejudiced as a result of the failure to give the required notice. 

Reasonable Excuse 

Just articulating an excuse may not get the worker off the hook. Employers should keep the following in mind when deciding how to respond to an employee who seeks to have the notice required waived: 

• The employee must be able to show that he has an excuse that is reasonable. 
• The Commission has discretion to decide that the excuse is not reasonable. 

Reasonable excuse may include the following: 

• The employee believed the employer already knew about the accident. 

• The employee did not reasonably know the nature, seriousness, or probable compensable character of his injury and delayed notification only until he reasonably knew. 

Example of Reasonable Excuse 

An employee is in a vehicular accident while working and driving a company truck. The employee verbally reports the wreck on the date of the accident. However, he doesn’t think he was hurt “that bad.” It’s only after 30 days that he discovers he has sustained a spinal cord injury. 

In this situation, the commission might conclude that the employee had a reasonable excuse for not providing written notice of the accident within 30 days of the accident's occurrence because he had communicated with his employer on the date of the accident and because he did not reasonably know how serious the injury was. 

Hardship 

Even if the worker has a reasonable excuse, the claim may still be barred if the employer can show it was prejudiced by the lack of notice. 

The general view of courts is that once an employee provides a reasonable excuse, it’s up the employer to demonstrate that the lack of notice, or delayed notice, caused it a hardship.  

When asserting hardship, an employer should focus on the purposes of the notice requirement and attempt to show how the lack of notice undermined one or both of those purposes. The two purposes are: 

1. To allow the employer to provide immediate medical diagnosis and treatment with a view to minimizing the seriousness of the injury; and 

2. To facilitate the earliest possible investigation of the circumstances surrounding the injury. 

Thus, two of the ways that an employer may attempt to show hardship are by showing that: 

• It was denied the ability to direct a worker’s appropriate medical care. 
• The employer was unable to investigate the circumstances surrounding the worker’s injury. 

Example of Hardship Argument 

In the vehicular accident hypothetical above, consider that the employee provided verbal notice the same day of the accident, the employer failed to further investigate at that time, the worker received proper, timely medical care, and the employer failed to show it was otherwise prejudiced by any delay in receiving written notice. Under those circumstances, the employer is likely to fail in its attempt to show hardship.  

The employer might have a better argument, however, if the worker didn’t even verbally notify the employer, thus preventing the employer from investigating and providing medical care. 

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