Rainey v. City of Charlotte

785 S.E.2d 766, 247 N.C. App. 594, 2016 WL 2865136, 2016 N.C. App. LEXIS 565
Court of Appeals of North Carolina·Decided May 17, 2016·No. No. COA15–953.·Published·Cited by 2 cases

Opinion

ELMORE, Judge.

*594The North Carolina Industrial Commission dismissed plaintiff's claim for benefits for an occupational disease, concluding that plaintiff failed to timely file his claim pursuant to N.C. Gen.Stat. § 97-59(c). We affirm.

*595I. Background

Ervin Rainey (plaintiff) worked as an automotive mechanic assistant for the City of Charlotte (defendant) for eighteen years, which required frequent strenuous use of his arms and shoulders. On 9 May 2000, plaintiff presented to Dr. H. Yates Dunaway, an orthopedic surgeon, for an evaluation of his right shoulder and knee. According to his medical report, plaintiff told Dr. Dunaway that his job requires heavy use of his shoulders to break down tires. The report also included Dr. Dunaway's diagnosis, "severe osteoarthritis right shoulder," and the following statement: "I have talked with [plaintiff] extensively about the likelihood of total shoulder arthroplasty in the near future. He will need to consider modifying his work."

Plaintiff declined surgical intervention and continued to work in his same position as an *768automotive mechanic assistant for defendant. His shoulder problems persisted, however, and at times plaintiff had to request assistance from co-workers. On 1 December 2009, he retired due to pain in his left shoulder, which had rendered him incapable of performing his normal job functions.

On 1 October 2012, plaintiff presented to Dr. Roy Majors with a history of left shoulder pain, which dated back twelve years and had become worse in recent months. Dr. Majors diagnosed plaintiff with end-stage arthritis in his left shoulder and referred him to Dr. Nady Hamid for surgery. Dr. Hamid performed a left total shoulder arthroplasty on 5 November 2012 and wrote plaintiff completely out of work after the surgery.

Plaintiff filed a workers' compensation claim on 29 November 2012, alleging an occupational disease in his left shoulder. The deputy commissioner, and later the Full Commission, concluded that plaintiff had failed to file his claim within the requisite time period and dismissed for lack of jurisdiction. Plaintiff appeals.

II. Discussion

The sole issue on appeal is whether plaintiff filed his claim before the expiration of the two-year statute of limitations. "Whether the claim for an occupational disease was filed timely is an issue of jurisdiction for the commission." Terrell v. Terminix Servs., Inc., 142 N.C.App. 305, 307, 542 S.E.2d 332, 334 (2001). Our North Carolina Supreme Court has articulated the standard of review in cases involving challenges to the jurisdiction of the Industrial Commission:

*596Except as to questions of jurisdiction, findings of fact by the Industrial Commission are conclusive on appeal when supported by competent evidence even though there is evidence to support contrary findings. G.S. 97-86 ; Morrison v. Burlington Industries, 304 N.C. 1, 282 S.E.2d 458 (1981). Findings of jurisdictional fact by the Industrial Commission, however, are not conclusive upon appeal even though supported by evidence in the record. Richards v. Nationwide Homes, 263 N.C. 295, 139 S.E.2d 645 (1965). A challenge to jurisdiction may be made at any time. Id. When a defendant employer challenges the jurisdiction of the Industrial Commission, any reviewing court, including the Supreme Court, has the duty to make its own independent findings of jurisdictional facts from its consideration of the entire record. Lucas v. Stores, 289 N.C. 212, 221 S.E.2d 257 (1976).

Dowdy v. Fieldcrest Mills, Inc., 308 N.C. 701, 705, 304 S.E.2d 215, 218 (1983).

N.C. Gen.Stat. § 97-58 (2015) establishes the time limit to file a claim for compensation for an occupational disease. Pursuant to subsection (c), the claim must be filed "within two years after death, disability, or disablement as the case may be." N.C. Gen.Stat. § 97-58(c) (2015). Subsection (b) further provides that "[t]he 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 [the] same." N.C. Gen.Stat. § 97-58(b) (2015). Our Supreme Court has construed these two subsections (b) and (c) in pari material to "establish the factors which commence the running of the two year period within which claims must be filed...." Dowdy, 308 N.C. at 706, 304 S.E.2d at 218. The two-year period begins to run

when [1] an employee has suffered injury from an occupational disease which renders the employee incapable of earning the wages the employee was receiving at the time of the incapacity by such injury, and [2] the employee is informed by competent medical authority of the nature and work related cause of the disease. The two year period for filing claims for an occupational disease does not begin to run until all of these factors exist.

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Rainey v. City of Charlotte, 785 S.E.2d 766, 247 N.C. App. 594, 2016 WL 2865136, 2016 N.C. App. LEXIS 565 (N.C. Ct. App. 2016).

785 S.E.2d 766 (Rainey v. City of Charlotte) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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