Underwood v. Cone Mills Corp.

336 S.E.2d 634, 78 N.C. App. 155, 1985 N.C. App. LEXIS 4253

• Court: Court of Appeals of North Carolina
• Decided: December 3, 1985
• Docket: No. 8510IC144
• Status: Published

Opinion

PARKER, Judge.

The issue presented by this appeal is whether the plaintiff filed his claim within the time prescribed by G.S. 97-58, which provides:

(b) . . . 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 ... .

This two year statute of limitation is a condition precedent with which a plaintiff must comply in order to confer jurisdiction on the Industrial Commission. Poythress v. J. P. Stevens & Co., 54 N.C. App. 376, 283 S.E. 2d 573 (1981), disc. rev. denied, 305 N.C. 153, 289 S.E. 2d 380 (1982).

Findings of fact by the Industrial Commission are normally conclusive on appeal when supported by any competent evidence even if there is evidence to support contrary findings. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E. 2d 682 (1982). An exception exists, however, for findings of fact relating to jurisdiction. Dowdy v. Fieldcrest Mills, 308 N.C. 701, 304 S.E. 2d 215 (1983), rehearing denied, --- N.C. ---, 311 S.E. 2d 590 (1984). The reviewing courts have a duty to make their own independent findings of jurisdictional facts based upon their consideration of the entire record. Id.

The record on appeal reveals the following facts relevant to jurisdiction and the statute of limitation: (i) plaintiff filed his claim on 2 February 1983; (ii) plaintiff had permanently quit working at Cone Mills on 3 June 1982, when he was hospitalized for COPD; (iii) plaintiff had been hospitalized on 29 March 1981 for testing and diagnosis; he was discharged on 9 April 1981 with a final diagnosis of COPD; (iv) plaintiff took a leave of absence from work in 1980 on the advice of his family physician who had told him that the cotton dust at work could be a factor aggravating his breathing problems. These facts lead to the conclusion that plaintiffs claim was filed in a timely manner and that the Industrial Commission properly asserted jurisdiction.

In Taylor v. J. P. Stevens & Co., 300 N.C. 94, 265 S.E. 2d 144 (1980), our Supreme Court held that sections (b) and (c) of G.S. 97-58, supra, must be construed in pari materia. When so construed, the Court held that the two year period within which claims for benefits for an occupational disease must be filed begins running when an employee has suffered injury from an occupational disease which renders the employee incapable of earning, at any job, the wages the employee was receiving at the time of the incapacity, and the employee is informed by competent medical authority of the nature and work-related cause of the disease. Id. at 98-99, 265 S.E. 2d at 147. The two year period for filing claims for an occupational disease does not begin to run until all of these factors exist. Dowdy v. Fieldcrest at 706, 304 S.E. 2d at 218-219.

This determination was based upon a reading of the definitions of “disablement” and “disability” contained in North Carolina’s Workers’ Compensation Act. G.S. 97-2(9) provides, “The term ‘disability’ means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment" (emphasis added). General Statute 97-54 provides that in all cases of occupational disease other than asbestosis or silicosis (not involved here), “ ‘disablement’ shall be equivalent to ‘disability’ as defined in G.S. 97-2(9).”

Under these definitions and the holding in Taylor v. Stevens & Co., supra, it becomes clear that plaintiffs claim was timely filed. He did not become disabled within the meaning of the Workers’ Compensation Act until 3 June 1982, when he was forced to stop work of any kind because of his occupational disease. Because plaintiff was able to earn the wages he had always received until that date, the arguments as to when plaintiff was first informed of the nature and work-related cause of his disease become irrelevant. All factors required by Taylor v. Stevens & Co. must exist before the statute of limitation begins running. See Dowdy v. Fieldcrest at 706, 304 S.E. 2d at 218-219.

Having reviewed the entire record, we find that the Industrial Commission properly exercised jurisdiction over plaintiffs claim. Therefore, the Opinion and Award of the Commission is hereby

Affirmed.

Judges Johnson and Eagles concur.