Appellates are again, (not) the trier of fact

so new case came in today from the Appellates. Cunningham v. Goodyear.

This case reminds me that the Court of Appeals doesn't usually want to be trier of fact, until they want to be the trier of fact. But in Cunningham, they re-weighed the facts in a very clever way, by justifying their actions as a jurisdictional review. And quite frankly, despite Judge Tyson's dissent, I think it works.

This case also reminds me that over the last multiple years, the Court of Appeals has been more favorable to injured worker, than our own North Carolina Industrial Commission when it comes to the "liberal construction to accomplish the legislative purpose of providing compensation for injured employees." (no, I'm not providing you the cite for that quote, it's pretty common, look it up).

Basically, what happened in this case is the Plaintiff injured her back in 2014, stopped treating for a while and then started treating again, all without filing an official claim with the NCIC. The Full Commission found that Plaintiff's claim was jurisdictionally barred. The Appeallates re-weighed the facts and found that it wasn't.

To understand this case, you're going to have to read NCGS 97-24(a)(ii) and understand the difference between a "De Novo" review (for a conclusion of law) and a "support by competent evidence" review (for a finding of fact). But I'm not going to spend the next 30 minutes trying to explain that to you. You can either go to law school or ask you local expert (which could be me if you're not a Defendant).

P.S. you can read the unpublished decision, of the same day, Gibbs v. Roca's Welding, where the court refused to re-weight the facts. Funny how it works that way. (BTW, appears Judge Tyson got his way in this one as he wrote the opinion).