Payne v. Cone Mills Corp.

299 S.E.2d 847, 60 N.C. App. 692, 1983 N.C. App. LEXIS 2529
CourtCourt of Appeals of North Carolina
DecidedFebruary 15, 1983
Docket8210IC215
StatusPublished
Cited by4 cases

This text of 299 S.E.2d 847 (Payne v. Cone Mills Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Payne v. Cone Mills Corp., 299 S.E.2d 847, 60 N.C. App. 692, 1983 N.C. App. LEXIS 2529 (N.C. Ct. App. 1983).

Opinions

HEDRICK, Judge.

The sole issue on this appeal is whether the plaintiff filed his claim within the statutory time period set out by N.C. Gen. Stat. § 97-58(b) and (c) which in pertinent part provides:

(b) The report and notice to the employer as required by G.S. 97-22 shall apply in all cases of occupational disease except in cases of asbestosis, silicosis, or lead poisoning. The time of notice of an occupational disease shall run from the date that the employee has been advised by competent medical authority that he has same.
(c) The right to compensation for occupational disease shall be barred unless a claim be filed with the Industrial Commission within two years after death, disability, or disablement as the case may be. . . .

In Poythress v. J. P. Stevens, 54 N.C. App. 376, 382, 283 S.E. 2d 573, 577 (1981) disc. rev. denied, 305 N.C. 153, 289 S.E. 2d 380 (1982), this court, in affirming the Industrial Commission’s dismissal of a claim as not having been timely filed, held:

[T]he two-year time limit for filing claims under N.C.G.S. 97-58(c) is a condition precedent with which claimants must comply in order to confer jurisdiction on the Industrial Commission to hear the claim.

In an earlier case, Taylor v. Stevens & Co., 300 N.C. 94, 102, 265 S.E. 2d 144, 149 (1980), our Supreme Court interpreted N.C. Gen. Stat. § 97-58 and held:

[W]ith reference to occupational diseases the time within which an employee must give notice or file claim begins to run when the employee is first informed by competent medical authority of the nature and work-related cause of the disease.

In the present case the defendant was hospitalized because of his condition in November 1970, and he did not return to work for [695]*695the defendant employer after his hospitalization. Yet, the plaintiff did not file claim with the Industrial Commission until October 1979, almost nine years after he stopped working. However, the plaintiff contends the statutory time period did not begin to run until 4 December 1979, which was two months after he filed his claim on 17 October 1979, because he was not informed that his disease was brown lung or byssinosis, an occupational disease, until that date. He further argues that the medical advice he received in 1970 was insufficient to inform him of “the nature and work related cause of the disease.” We do not agree.

The parties stipulated that plaintiffs disability began on 26 November 1970, which was the day he went to the hospital emergency room because he had difficulty breathing and the last day he worked for defendant employer. The Commission’s findings of fact reveal that the plaintiff received hospital treatment for “asthmatic bronchitis secondary to exposure to textile particles” from 30 November 1970 to 14 December 1970 and that his physician, Dr. R. B. Steelman, advised him not to return to the mill because of the “work environment.” With respect to the communication between plaintiff and Dr. Steelman, the record discloses Dr. Steelman’s deposition, which was taken by telephone on 10 December 1980, ten years after his original diagnosis:

I have read briefly those documents which you sent me earlier, including a letter from Dr. Sam LeBauer to Mr. Chas-tain dated September 22, 1980, a History and Physical consisting of two pages on Moses Cone Memorial Hospital forms, and a third document entitled Discharge Summary from Moses Cone Hospital. To the best of my knowledge, the History and Physical from Moses Cone Hospital consisting of two pages dictated on the 28th of January, 1971, and the discharge summary consisting of one page signed by me with the same date accurately reflect the history, examination, and diagnosis of Mr. Payne as done by me in January of 1971. These documents refresh my memory as to my seeing and treating Mr. Payne. I recall Mr. Payne. I do not really recall specific conversations I may have had with Mr. Payne concerning the causes of his condition that required his hospitalization.
[696]*696There is a diagnosis at the bottom of the one-page discharge summary signed by me. I think I did have a conversation with Mr. Payne about my diagnosis as indicated on that form. He was quite ill, and I think the history reflected that his symptoms were related to exposure to something at work he felt. Because of that I suspected that he might he allergic to some airborne allergen at work. Historically, that seemed to be the case and I was suspicious of that. Mr. Payne suspected that something at work was related to the problems he was experiencing at this hospitalization. I really don’t recall specific conversations. I recall Mr. Payne, the kind of illness that he had, and obviously the hospital records, but I don’t recall specific conversations that I had with him.
Referring to the first page of the History and Physical under the paragraph entitled present illness, where it is indicated that Mr. Payne was an elderly white man with a long history of exposure to textile particles who has experienced repeated episodes with asthma, and that his history of wheezing goes back four years and occurs after exposure to his work environment, to the best of my recollection that was the history given to me by Mr. Payne. The history of present illness reflects what the patient has told the physician and is recorded in that manner. Keeping in mind what Mr. Payne told me and referring again to the diagnosis on the bottom of the one-page discharge summary, and concerning whether I had any conversations with Mr. Payne indicating that he had asthmatic bronchitis secondary to exposure to textile particles, I am sure that I expressed that I was suspicious that that was the cause of his respiratory difficulty. It is not a proven diagnosis, but I suspected that his asthmatic bronchitis was secondary to exposure to textile particles.
Q. Do you recall any recommendations you made to Mr. Payne concerning continued employment in the textile industry at this time?
A. Well, I don’t recall specific conversations, but I wouldn’t be surprised if I suggested that if repeated exposure seemed to provoke repeated respiratory difficulty that it might be wise that he not expose himself ah to that work environment.
[697]*697As to whether I recall making any statements to Mr. Payne to the effect that he should not go back into the card room at Cone Mills or dusty areas in that plant because it would kill him, I think that what I expressed is what I have already recounted to you, and that was concern that exposure to airborne particles at work might be responsible for his respiratory insufficiency and that it was concordant with his previous history that he might consider not exposing himself to that environment. . . . (Emphasis added.)

The plaintiff also testified as to his understanding of what Dr. Steelman told him:

I was in Dr. Steelman’s office the first time I ever saw him. He conducted an examination of me in his office. He asked me to blow into a tube. After Dr. Steelman did this examination and before he put me in the hospital, Dr. Steelman told me the results of the examination in his office.
Q. What did he tell you?
A.

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Related

May v. Shuford Mills, Inc.
307 S.E.2d 372 (Court of Appeals of North Carolina, 1983)
Clary v. A. M. Smyre Manufacturing Co.
300 S.E.2d 704 (Court of Appeals of North Carolina, 1983)
McCall v. Cone Mills Corp.
300 S.E.2d 245 (Court of Appeals of North Carolina, 1983)
Payne v. Cone Mills Corp.
299 S.E.2d 847 (Court of Appeals of North Carolina, 1983)

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Bluebook (online)
299 S.E.2d 847, 60 N.C. App. 692, 1983 N.C. App. LEXIS 2529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/payne-v-cone-mills-corp-ncctapp-1983.