Appeal by plaintiff from an opinion and award entered 15 July
1999 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 6 June 2000.
The Twiford Law Firm, L.L.P., by Branch W. Vincent, III, for
plaintiff-appellant.
Attorney General Michael F. Easley, by Assistant Attorney
General Don Wright, for defendant-appellee.
HUNTER, Judge.
Plaintiff-appellant, Patricia Hunter (“plaintiff”), appeals
from the 15 July 1999 opinion and award of the North Carolina
Industrial Commission (“Commission”) denying her workers'
compensation claim against Perquimans County Board of Education and
Self-Insured, North Carolina School Board Association Insurance
Trust, Agency (collectively “defendants”) for additional
compensation for an alleged change in condition. The Commission
ruled that the plaintiff's claim for a change of condition was
barred by the two-year limitations period set out in N.C. Gen.
Stat. § 97-47. Plaintiff appeals to this Court arguing that her
claim for additional compensation was timely filed. Alternatively,
plaintiff argues that even if her claim was not timely filed,
defendants were estopped from asserting the limitation period as an
affirmative defense because they failed to: (1) file a Form 28B
Notice of Final Payment (“Form 28B”) with the Commission or (2)
provide the plaintiff with a Form 28B after mailing the last
payment of compensation. We find both arguments unpersuasive;
therefore, we affirm the Commission's award.
The facts pertinent to this appeal are as follows: On 28
February 1990 plaintiff sustained a back injury arising out of and
in the course of her employment with defendants. Plaintiff wascompensated for her injury by defendants pursuant to a series of
awards by the Commission. Following the 28 May 1992 final
agreement and award by the Commission, defendants filed a Form 28B
notice of final compensation with the Commission and provided
plaintiff with a copy.
In 1993, plaintiff's doctor, Dr. Lorenzo Archer, having
determined that plaintiff's condition had significantly
deteriorated, increased plaintiff's permanent partial disability
rating from thirty percent to forty percent. As a result,
plaintiff and defendants entered into a Form 26 agreement for
compensation which was approved by the Commission on 4 February
1994. The agreement provided for compensation to plaintiff at a
rate of $119.05 per week. Plaintiff's compensation payments werescheduled to commence on 22 September 1993 and continue for thirty
weeks. On 24 January 1994, plaintiff applied for a lump sum
payment of the compensation provided for in the Form 26 agreement.
On 3 March 1994 in response to plaintiff's application, the
defendants issued a check to plaintiff for the sum of her benefits;
however, the lump sum payment application was not approved by the
Commission until 20 April 1994. Defendants did not file a Form 28B
notice of final compensation at any time after the lump sum payment
was received by the plaintiff in early March 1994. More than two
years later on 21 March 1996, plaintiff received an unsatisfactory
report from Dr. Archer. Plaintiff then filed a claim on 3 April
1996 for additional compensation for a change in condition pursuant
to N.C. Gen. Stat. § 97-47.
After conducting a hearing, Deputy Commissioner Kim Cramer
found that plaintiff was no longer capable of gainful employment,
had not earned any significant wages since 1994, and that the
“final check was [mailed] to the Plaintiff in March, 1994” but the
defendants failed to file a Form 28B to close out the case.
Therefore, the deputy commissioner concluded that even though the
plaintiff's claim was not filed within two years of receipt of her
last compensation payment, the two-year limitation period of N.C.
Gen. Stat. § 97-47 did not bar the plaintiff's claim because the
claim was filed within two years of the date that the Commission
approved the lump sum payment award. Defendants appealed to the
Full Commission. The Commission rejected the deputy commissioner'sconclusion that its approval of the lump sum payment application
was the trigger for the limitations period.
In its opinion and award of 15 July 1999, the Full Commission
made the same findings as Deputy Commissioner Cramer. However, the
Commission further found that the failure of the defendants to
provide a copy of Form 28B to plaintiff within sixteen days of the
final payment as required by N.C. Gen. Stat. § 97-18(h) did not
estop defendants from asserting the two-year limitation period
provided for in N.C. Gen. Stat. § 97-47 as an affirmative defense
to plaintiff's claim. Therefore, the Commission concluded that
because plaintiff's claim was not made within two years of receipt
of the last payment of compensation it was untimely. Thus,
plaintiff's claim was barred.
Plaintiff preserved six assignments of error for this Court's
review; however, plaintiff combines them into two arguments before
this Court.
I
[1]Plaintiff's first contention is that the Commission erred
by not finding as fact and concluding as a matter of law that her
claim for additional compensation for a change in condition
pursuant to N.C. Gen. Stat. § 97-47 was timely. We disagree.
It is well established that “the Industrial Commission is the
fact finding body and . . . the findings of fact made by the
Commission are conclusive on appeal, . . . if supported by
competent evidence. . . . This is so even though there is evidence
which would support a finding to the contrary.”
Hansel v. ShermanTextiles, 304 N.C. 44, 49, 283 S.E.2d 101, 104 (1981). There
fore,
the appropriate standard of review by this Court is to determine
only whether the Commission's findings of fact are supported by
competent evidence and whether those findings indeed support the
Commission's conclusions of law.
With regard to plaintiff's change in condition, N.C. Gen.
Stat. § 97-47 provides in relevant part that:
Upon its own motion or upon the
application of any party in interest on the
grounds of a change in condition, the
Industrial Commission may review any award,
and on such review may make an award ending,
diminishing, or increasing the compensation
previously awarded, . . . . [However,]
no
such review shall be made after two years from
the date of the last payment of compensation
pursuant to an award under this Article,
. . . .
N.C. Gen. Stat. § 97-47 (1999) (emphasis added). Although the
Commission did not approve the agreement for a lump sum payment
until 20 April 1994, the record shows that plaintiff stipulates
that she received the lump sum payment from defendants sometime in
early March 1994. The record also reveals that the lump sum
payment, intended to be plaintiff's last payment of compensation,
was mailed by defendants on 3 March 1994.
We begin by emphasizing that the plain language of the statute
establishes that the limitations period begins to run on “the date
of the last payment of compensation.” N.C. Gen. Stat. § 97-47. It
is well established by case law that this section provides a
limitations period requiring any claim for additional compensation
on the grounds of a change in condition to be made within two yearsof the date the last payment of compensation was received by the
claimant.
Apple v. Guilford County, 321 N.C. 98, 361 S.E.2d 588
(1987). Further, the limitation period is not jurisdictional, but
merely provides a defense that may be raised by the employer.
Pennington v. Flame Refractories, Inc., 53 N.C. App. 584, 281
S.E.2d 463 (1981). The date that triggers the running of the
statute of limitations is the date that the last payment of
compensation is received by the claimant,
not the date the
Commission actually approves the award.
Willis v. Davis
Industries, 280 N.C. 709, 186 S.E.2d 913 (1972).
See also White v.
Boat Corporation, 261 N.C. 495, 135 S.E.2d 216 (1964);
Hill v.
Hanes Corp., 79 N.C. App. 67, 339 S.E.2d 1 (1986),
aff'd in part,
rev'd in part on other grounds, 319 N.C. 167, 353 S.E.2d 392
(1987). Therefore, because the limitations period began to run
when plaintiff received her last payment of compensation in early
March 1994, we hold that plaintiff's claim for additional
compensation filed with the Commission on 3 April 1996 was
untimely.
Nonetheless, plaintiff contends that the filing of Commission
Form 28B is necessary to trigger the running of the limitation
period and that without such filing, the limitations period never
began to run. Plaintiff argues, ”[i]f no Form 28B is served upon
the employee, then the date the last compensation check was
received by the employee has no legal significance. . . . The
receipt of the check only has legal significance when a Form 28B is
timely served on the employee.” However, plaintiff's argument iscompletely inapposite to case law which provides that, “the time
limitation commences to run from the date on which [the employee]
receive[s] the last payment of compensation,
not from the date on
which the employee receive[s] a Form 28B.”
Cook v. Southern
Bonded, Inc., 82 N.C. App. 277, 280, 346 S.E.2d 168, 170 (1986)
(emphasis added). Further, if the General Assembly had intended
for the limitation to be contingent upon the filing of Form 28B it
would have so provided.
See Willis, 280 N.C. at 714-15, 186 S.E.2d
at 916. Therefore, since the limitation period began to run when
plaintiff received her last payment of compensation in early March
1994, it was not affected by whether plaintiff also received a copy
of Form 28B.
II
[2]Plaintiff's next assignment of error is that in the
alternative, the Commission erred by failing to hold that even if
her claim was untimely, defendants were estopped from raising the
limitation period as an affirmative defense because defendants
never filed Form 28B with plaintiff or the Commission. Again, we
disagree.
We begin by noting that our Supreme Court has held that the
purpose of the limitation period in N.C. Gen. Stat. § 97-47 is:
[T]o give timely notice to employer and
insurance carrier that a further claim is
being made . . . [t]he employer and the
insurance carrier are entitled to treat final
payment under a Form 21 agreement as closing
the proceeding, absent timely notice that an
employee seeks further compensation due to
change of condition.
Apple, 321 N.C. at 101, 361 S.E.2d at 590. We reiterate that both
our Legislature and Supreme Court have found great importance in
providing notice to the employer when the employee seeks further
compensation. It is good public policy to bring closure to
disputes and an end to liability.
Pennington, 53 N.C. App. 584,
281 S.E.2d 463.
Contrarily, N.C. Gen. Stat. § 97-18(h) provides for notice of
final payment beyond the receipt of benefits to the employee. In
relevant part N.C. Gen. Stat. § 97-18(h) provides:
Within 16 days after final payment of
compensation has been made, the employer shall
send to the Commission and the employee a
notice, in accordance with a form prescribed
by the Commission, . . . .
If the employer
fails to so notify the Commission or the
employee within such time, the Commission
shall assess against such employer a civil
penalty in the amount of twenty-five dollars
($25.00). . . .
N.C. Gen. Stat. § 97-18(h) (1999) (emphasis added). It is true
that the purpose of an employer's being required to file a Form 28B
is to give the Commission and the employee notice that the final
payment has been made.
Hill, 79 N.C. App. 67, 339 S.E.2d 1.
However, reason dictates that because the employee entered into an
agreement of compensation, she was aware of the terms of that
agreement. Therefore, the Form 28B notice required by N.C. Gen.
Stat. § 97-18(h) is actually a reminder and not a notification.
Neither our General Assembly nor our case law has interpreted an
employer's failure to file such notice as providing an employee
with a right to remedy.
Hill, 79 N.C. App. 67, 339 S.E.2d 1. In
fact, the only remedy allowed is for the Commission and that beingnominal.
See N.C. Gen. Stat. § 97-18(h). Therefore, althoug
h we
agree that defendants
should have filed a Form 28B with plaintiff
and the Commission, the plain language of this section provides a
remedy only to the Commission, not to the plaintiff/employee, for
the defendant/employer's failure to comply with its express
provisions.
In the case at bar, the Commission found that defendants had
failed to comply with N.C. Gen. Stat. § 97-18(h)'s requirement that
they file a Form 28B with the Commission and plaintiff.
Subsequently, the Commission assessed the defendants with a twenty-
five dollar fine pursuant to § 97-18. When the statutory language
is “clear and without ambiguity, 'there is no room for judicial
construction,' and the statute must be given effect in accordance
with its plain and definite meaning.”
Avco Financial Services v.
Isbell, 67 N.C. App. 341, 343, 312 S.E.2d 707, 708 (1984) (quoting
Williams v. Williams, 299 N.C. 174, 180, 261 S.E.2d 849, 854
(1980)). Because the General Assembly provided an express remedy
only for the Commission, we are compelled to assume that no private
remedy was intended for the employee. Further, the importance, or
lack thereof, that the Legislature placed on the filing of the Form
28B for notice is reflected in the nature of the penalty. A
twenty-five dollar penalty for non-compliance is nominal. We hold
then, that there is no further remedy provided at law for
defendants' failure to file Form 28B.
However, we acknowledge that plaintiff bases her argument on
this Court's holding in
Sides v. Electric Co., 12 N.C. App. 312,183 S.E.2d 308 (1971). Plaintiff contends that the following
statement in
Sides should be controlling:
Under the Commission's rule XI(5) promulgated
pursuant to statutory authority contained in
G.S. 97-80, defendants must execute Form 28(b)
and furnish a copy to a claimant with his last
compensation check. A failure to do so will
estop defendants from pleading the lapse of
time in bar of a claim asserted for additional
compensation on the grounds of a change in
condition. . . .
Id. at 314, 183 S.E.2d at 310 (citations omitted). This argument
was based on our Supreme Court's holding in
White, 261 N.C. 495,
135 S.E.2d 216, requiring that the employer or insurance carrier
comply with the Commission rule and give the employee notice. In
White, our Supreme Court further stated that failure to comply with
the rule would result in failure to put the limitation period into
operation.
Id.
However, the Supreme Court's decision in Willis v.
Davis Industries, directly overruled the relevant portion of White,
thus plaintiff's reliance is unfounded.
Willis, 280 N.C. 709, 186
S.E.2d 913. Since the statement from
Sides, upon which plaintiff
relies, is no longer good law, we overrule plaintiff's contention.
A more recent case interpreting the effect of the statutory
requirement that Form 28B must be filed provides:
[F]or purposes of G.S. Sec. 97-47, the
statutory one-year period [now two years] for
filing a claim for a change of condition
begins at the time final payment is accepted,
not when Form 28B is filed. Nonetheless, the
Commission must be given the opportunity to
determine whether a payment labeled “final” is
or should be, in fact, the final
payment. . . .
Hill, 79 N.C. App. at 75, 339 S.E.2d at 6 (citation omitted).
See
also Cook, 82 N.C. App. 277, 346 S.E.2d 168. Although the
Hill
court's interpretation of section 97-18(h) requires that the
Commission be granted the opportunity to determine if the payment
is indeed a final payment, the clear demarcation of the limitation
period beginning to run is “at the time final payment is accepted,
not when Form 28B is filed.”
Hill, 79 N.C. App. at 75, 339 S.E.2d
at 6 (emphasis added).
We note in the case at bar, that the Commission was neither
denied its right to determine whether the payment labeled “final”
was indeed final as to this plaintiff; nor did the Commission shirk
its duty to do so. Instead, the Commission found as fact that the
3 March 1994 disbursement was the final payment. Because the
Commission's findings of fact are conclusive on appeal if supported
by any competent evidence in the record and because there is
evidence of record to support the Commission's finding in this
case, plaintiff's argument that defendants were estopped is
overruled.
Hansel, 304 N.C. 44, 283 S.E.2d 101.
[3]Nonetheless, plaintiff continues to argue that even if
defendants were not estopped from pleading the limitation period
defense, defendants should have been equitably estopped from
pleading the limitation period. We are unpersuaded. Our Supreme
Court recognizes a plaintiff's right to assert equitable estoppel
in preventing a defendant in a worker's compensation action from
asserting the time limitation defense only when the defendant,
“'. . . by acts, representations, or conduct, the repudiation ofwhich would amount to a breach of good faith'” has caus
ed harm to
plaintiff.
Watkins v. Motor Lines, 279 N.C. 132, 139-40, 181
S.E.2d 588, 593 (1971) (quoting
Nowell v. Tea Co., 250 N.C. 575,
579, 108 S.E.2d 889, 891 (1959)). Our Supreme Court opined:
“The lapse of time, when properly
pleaded, is a technical legal defense.
Nevertheless, equity will deny the right to
assert that defense when delay has been
induced by acts, representations, or conduct,
the repudiation of which would amount to a
breach of good faith. 'The doctrine of
equitable estoppel is based on an application
of the golden rule to the everyday affairs of
men. It requires that one should do unto
others as, in equity and good conscience, he
would have them do unto him, if their
positions were reversed. . . . Its compulsion
is one of fair play.'
McNeely v. Walters, 211
N.C. 112, 189 S.E. 114 [1937].”
Willis, 280 N.C. at 715, 186 S.E.2d at 916-17 (quoting
Nowell v.
Tea Co., 250 N.C. at 579, 108 S.E.2d at 891). Thus for the present
plaintiff to succeed in her argument, she must show that defendants
induced her delay in filing her claim by some bad act,
representation, or conduct. On the contrary, the Commission
explicitly concluded that there was “no evidence of record that
plaintiff's delay in filing her claim for a change of condition was
induced by any acts, representations or conduct on the part of
defendant and [there was] no evidence that defendant acted in bad
faith.” We hold then that, based on the findings of the Commission
which are substantiated by competent evidence, there are no grounds
upon which the Commission should have concluded defendants were
equitably estopped from pleading the statutory limitation period
defense. We further hold that since defendants were not barred from
raising the limitation period as a defense to plaintiff's claim,
and since plaintiff's claim was not timely filed, defendants'
defense necessarily defeats plaintiff's untimely claim. Because
the record provides competent evidence for the Commission's
findings of fact and those findings support the Commission's
conclusions of law, the Commission's opinion and award is
Affirmed.
Judges GREENE and HORTON concur.
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