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In this commentary, Vernon Sumwalt, North Carolina board certified specialist in workers' compensation law and noted legal author, examines inconsistent case holdings on actual notice of an injury in North Carolina workers' comp cases.
"Latin is a dead language, and one has to wonder why lawyers still use so many phrases from it," Sumwalt says. "Take, for example, res ipsa loquitur, post hoc ergo propter hoc, or even in rem jurisdiction. Obiter dictum (something said in passing) and stare decisis et non quieta movere (to stand by and adhere to decisions and not disturb what is settled) are two others that we encounter in workers' compensation appellate practice with frequency, primarily because they represent mutually exclusive categories of precedent. In deciding cases, judges either follow (stare decisis) or discount (obiter dictum) precedent depending on its harmony with the result they want. And, of course, judges sometimes get the category wrong."
"In other cases, there is no explicit discussion of stare decisis or obiter dictum, but the concepts are apparent in how the court reached its decision. The North Carolina Supreme Court's decision in Gregory v. W.A. Brown & Sons, 363 N.C. 750, 688 S.E.2d 431 (2010), is one such case. In Gregory, a majority of the Supreme Court of North Carolina remanded the case to the Industrial Commission for additional findings of fact regarding an employer's prejudice under N.C. Gen. Stat. § 97-23 under the instruction that '[n]ot every instance of actual notice will satisfy the statutory requirements of reasonable excuse and lack of prejudice.' Less than fifteen months before Gregory," the author points out, "however, the Court had announced the exact opposite conclusion in Richardson v. Maxim Healthcare/Allegis Group, 362 N.C. 657, 669 S.E.2d 582 (2008)."
In an effort to show that Gregory is a just another result-oriented decision that ignored binding precedent, this emerging issues analysis commentary will try to make sense out of Gregory's inconsistency with Richardson and offer practitioners guidance in litigating the notice issue to prevent appellate practice under the Act from becoming nothing more than a game of chance.
Vernon Sumwalt practices with the Sumwalt Law Firm in Charlotte, North Carolina, in the areas of workers' compensation, workplace torts, and Social Security disability. He is a board certified specialist in workers' compensation law by the North Carolina State Bar and has presented at over sixty-five continuing legal education seminars.
Subscribers can access the complete commentary, Vernon Sumwalt on "A Tale of Two Cases" (Stare Decisis Only Matters Sometimes), on lexis.com. Additional fees may be incurred. (Total Length of Article: 6 pp.)
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