Appeal by defendants from opinions and awards entered 8 April
1997, 10 June 1997 and 20 October 1999 by the North Carolina
Industrial Commission. Heard in the Court of Appeals 21 February
2001.
Elliot Pishko Gelbin & Morgan, P.A., by J. Griffin Morgan, for
plaintiff-appellee.
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Edward L.
Eatman, Jr., Allen C. Smith and C.J. Childers, for defendants-
appellants.
WALKER, Judge.
Defendants appeal from an opinion and award of the Industrial
Commission (Commission) ordering them to pay plaintiff compensation
for temporary total disability, medical expenses and a reasonableattorney's fee.
While working for defendant as a pipefitter, plaintiff was
injured on 8 April 1991 when a pipe fell from the scaffolding above
and struck his head. Defendant filed an “Employer's Report of
Injury to Employee” to inform the Commission he suffered a work-
related accident (Form 19). The Commission approved a Form 21,
“Agreement for Compensation for Disability” on 20 March 1992. The
plaintiff was out of work on disability from the injury from 29 May
1991 until 8 July 1991. The plaintiff was released to return to
work on 26 June 1991; however, he elected to use vacation time to
extend his absence until 8 July 1991.
A second work-related accident occurred on 19 October 1992,
when plaintiff fell from a ladder and sustained injuries to his
head and wrists. Plaintiff was treated but released and returned
to work the same or next day. Plaintiff continued to work until
November, 1992 and has not returned to work since. On 28 October
1992, plaintiff filed a “Notice of Accident to Employer (G.S. 97-
22) and Claim of Employee or His Personal Representative or
Dependents (G.S. 97-24)” (Form 18) with the Commission seeking
benefits on the ground that he suffered “neurological difficulties”
from the 8 April 1991 injury. On the claim form, plaintiff
indicated his disability from this injury caused him to be out of
work from 29 May 1991 until 8 July 1991. This claim form did not
mention plaintiff's intervening work-related accident which had
occurred nine days earlier on 19 October 1992. On 10 March 1993,
plaintiff filed a Form 33, “Request that Claim Be Assigned for
Hearing” which referred only to his injury on 8 April 1991. On 26March 1993, defendants filed a Form 33R, “Response to Request t
hat
Claim be Assigned for Hearing” which was later amended to assert
plaintiff's “claims for further treatment or disability are not due
to the injury by accident of April 8, 1991 but rather due to
preexisting conditions.”
Deputy Commissioner William L. Haigh (Commissioner Haigh)
thereafter held hearings on 1 and 2 December 1993 regarding the
claim for the 8 April 1991 injury. On 13 March 1996, Commissioner
Haigh filed an opinion and award which denied plaintiff's claim for
benefits beyond the period of time he was disabled from the 8 April
1991 injury. In the opinion and award, Commissioner Haigh found
the following:
23. . . . Whatever claim, if any, that
plaintiff has filed with the [Commission]
concerning the October 19, 1992 accident is
not before the undersigned in the instant case
which only involves a claim for incapacity to
earn wages due to the April 8, 1991 injury by
accident. With the exception of the period
from May 29, 1991 to June 27, 1991, the
credible lay and medical evidence fails to
establish that, as a result of the injury by
accident of April 8, 1991, plaintiff was
unable to earn any wages or diminished wages
in the same or other employment.
(emphasis added). Commissioner Haigh also concluded that before
the second injury occurring on 19 October 1992, plaintiff
“sustained no diminution in earning capacity by reason of the
[first] accident of April 8, 1991.” In addition, Commissioner
Haigh stated, “[f]ollowing the accident on October 19, 1992 . . .
but for which no claim is pending in the instant case, [plaintiff]
sustained some period of diminished wage earning capacity, the
nature and extent of which are undeterminable from the credibleevidence of record.” (emphasis added).
On 25 March 1996, plaintiff gave notice of appeal to the
Commission from the opinion and award entered by Commissioner
Haigh. Thereafter, on 1 July 1996, plaintiff filed a Form 18
pertaining to his work-related injury which occurred on 19 October
1992, when he indicated that his disability began. On 2 July 1996,
plaintiff filed a motion requesting that the Commission find that
Form 18 was timely filed, or, in the alternative, that “defendants
are estopped from raising the time limitations of N.C. Gen. Stat.
§ 97-24 to bar plaintiff's claim[.]”
On 20 October 1999, the Commission issued an opinion and award
reversing the opinion and award of Commissioner Haigh based upon
the following findings:
12. Defendants were on actual notice of this
accident, defendant-employer having filed a
Form 19 in connection therewith, and
defendants having received written notice of
it in plaintiff's answer to interrogatories.
Defendants were not prejudiced in any way in
their investigation of the incident on 19
October 1992.
21. Plaintiff's inability to return to work
was
caused by his 8 April 1991 injury by
accident, and was exacerbated by the October
1992 injury by accident.
22. As the result of the 8 April 1991 injury
by accident and the 19 October 1992 injury by
accident, plaintiff has been incapable of
earning wages in his former position with
defendant-employer or in any other employment
from November 1992 through the present.
(emphasis added). Plaintiff was therefore awarded temporary total
benefits in addition to past and future medical expenses and
reasonable attorney's fees.
In their first assignment of error, defendants contend theCommission erred by hearing plaintiff's claim arising fro
m his 19
October 1992 accident since it had no jurisdiction. Defendants
thereby assert plaintiff did not file a claim for the 19 October
1992 accident until 1 July 1996, which was after the two-year
filing period mandated by statute had elapsed.
At the outset, we note that when a party challenges the
Commission's jurisdiction to hear a claim, the findings relating to
jurisdiction are not conclusive and the reviewing court may
consider all of the evidence in the record and make its own
determination on jurisdiction.
Craver v. Dixie Furniture Co., 115
N.C. App. 570, 447 S.E.2d 789 (1994);
Lucas v. Stores, 289 N.C.
212, 221 S.E.2d 257 (1976). Otherwise, the standard of appellate
review is limited to a determination of (1) whether the
Commission's findings are supported by any competent evidence of
record, and (2) whether the findings justify the Commission's legal
conclusions.
Sidney v. Raleigh Paving & Patching, 109 N.C. App.
254, 426 S.E.2d 424 (1993).
Jurisdiction over workers' compensation claims is controlled
by N.C. Gen. Stat. § 97-24(a), which provides in part that the
right to workers' compensation shall be “forever barred” unless a
claim is filed with the Industrial Commission “within two years
after the accident.” N.C. Gen. Stat. § 97-24(a)(1999). “The
requirement of filing a claim within two years of the accident is
not a statute of limitation, but a condition precedent to the right
to compensation.”
Perdue v. Daniel International, 59 N.C. App.
517, 518, 296 S.E.2d 845, 846 (1982),
cert. denied, 307 N.C. 577,
299 S.E.2d 647 (1983),
citing Barham v. Hosiery Co., 15 N.C. App.519, 190 S.E.2d 306 (1972).
See also Letterlough v. Atkins,
258
N.C. 166, 128 S.E.2d 215 (1962)(holding the jurisdiction of the
Commission is limited by statute).
In the instant case, plaintiff was familiar with the procedure
of having to file a claim to receive benefits by virtue of his
having filed a Form 18 claim on 28 October 1992 for the 8 April
1991 work-related injury. This claim did not mention the 19
October 1992 injury even though this second injury had occurred
nine days prior to the date the claim was filed.
This Court has held that the employment report of an injury on
Form 19 is insufficient to invoke jurisdiction where the claim has
not been reported by the filing of a Form 18 within two years after
the accident.
Perdue, 59 N.C. App. at 518, 296 S.E.2d at 846. In
Perdue, this Court relied on
our Supreme Court's decision in
Montgomery v. Fire Department, 265 N.C. 553, 144 S.E.2d 586 (1965),
about which this Court stated:
[T]he decedent died on 16 August 1962,
immediately after his fire truck was in a
collision. Six days later, the fire
department filed Form 19 with the Industrial
Commission. The Commission twice wrote to
plaintiff's attorneys asking that they file a
form requesting a hearing. This was not done.
The Supreme Court held that since a claim was
not filed, the proceedings were properly
dismissed.
Perdue, 59 N.C. App. at 518, 296 S.E.2d at 846.
In
Reinhardt v. Women's Pavilion, 102 N.C. App. 83, 401 S.E.2d
138 (1991), this Court held that a letter from a workers'
compensation insurer to the Commission, which merely inquired as to
claimant's physical progress and medical charges but made no demand
for compensation or request a hearing, did not satisfy thestatutory requirement that a “claim” be filed within two years of
the accident pursuant to N.C. Gen. Stat. § 97-24(a).
See also
Gantt v. Edmos. Corporation, 56 N.C. App. 408, 289 S.E.2d 75
(1982).
In
Abels v. Renfro Corp., 100 N.C. App. 186, 394 S.E.2d 658
(1990), the defendants paid plaintiff's medical bills incurred as
a result of a work-related injury.
Id. at 187, 394 S.E.2d at 658.
However, plaintiff did not file a claim for benefits within two
years of the accident.
Id. This Court affirmed the Commission's
denial of a claim and held the defendants were not estopped from
contesting the claim.
Id. at 187, 394 S.E.2d at 658-659.
Moreover, our Supreme Court has held that the lack of the
Commission's jurisdiction over a workers' compensation claim
“cannot be obtained by consent of the parties, waiver, or
estoppel.”
Hart v. Motors, 244 N.C. 84, 88, 92 S.E.2d 673, 676
(1956)(citation omitted).
See also Clodfelter v. Furniture Co., 38
N.C. App. 45, 247 S.E.2d 263 (1978);
Barham, 15 N.C. App. 519, 190
S.E.2d 306.
In support of his contention that the claim for the 19 October
1992 injury was timely filed, plaintiff cites
Cross v. Fieldcrest
Mills, 19 N.C. App. 29, 198 S.E.2d 110 (1973). In
Cross, this
Court upheld the Commission's determination that a letter written
within two years of the accident constituted a sufficient claim for
an injury.
Id. at 31, 198 S.E.2d at 112. The letter referred to
plaintiff's two injuries resulting from accidents and requested
that a hearing be held to address both injuries, since “[t]here may
be some question about aggravation of the pre-existing injury . .. .”
Id. at 30-31, 198 S.E.2d at 112. In addition, the letter
asked the Commission to check its records to see if it had any
record of the first injury.
Id. at 31, 198 S.E.2d at 112.
The
Commission held that the letter constituted a sufficient claim and
therefore complied with N.C. Gen. Stat. § 97-24 to vest
jurisdiction over the first injury.
Id. This Court agreed and
stated “[a]lthough the letter constitutes a rather minimal
compliance with the statute with respect to filing a claim with the
Commission, it nevertheless specifically requests a hearing upon
the alleged [first] injury.”
Id.
Plaintiff contends his actions adequately informed the
Commission of his 19 October 1992 injury and “went far beyond” the
plaintiff's actions in
Cross. He asserts that his answers to
interrogatories, his medical records filed with the Commission and
his testimony before Commissioner Haigh are sufficient notice to
the Commission that he intended to claim benefits arising out of
the accident on 19 October 1992. We disagree. The record reveals
these actions by plaintiff only informed the Commission that he was
involved in an accident on 19 October 1992 for which he was
treated, released and returned to work the same or next day.
Plaintiff's request for a hearing was limited to the 8 April 1991
injury.
We conclude that plaintiff failed to file a separate claim for
the benefits from the 19 October 1992 accident and that the claim
filed on 1 July 1996 was beyond the two-year statutory requirement.
Therefore, the Commission lacked jurisdiction to hear a claim basedon any injury arising out of the 19 October 1992 accident.
The Commission concluded that “plaintiff sustained an injury
by accident arising out of and in the course of his employment with
defendant-employer on April 8, 1991.” Therefore, we remand the
matter to the Commission to determine whether plaintiff is entitled
to further benefits for the injury occurring on 8 April 1991.
Reversed and remanded.
Judges BIGGS and SMITH concur.
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