Workers' Compensation--jurisdiction--occupational disease--time for filing complaint
The Industrial Commission properly exercised jurisdiction in a workers' compensation
case when it concluded that plaintiff employee timely filed his claim for an occupational disease
under N.C.G.S. § 97-58 even though plaintiff was disabled as of 20 September 1992 but was not
advised by a competent medical authority that his disease was a result of his occupation until
April 1994, three months after plaintiff filed his claim, because: (1) N.C.G.S. § 97-58 provides
that the two-year period within which claims for benefits for an occupational disease must be
filed begins running when an employee has suffered 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; and (2) the statutory period was not triggered since no
testimony was offered that any of plaintiff's doctors informed plaintiff that his job was causing
his disease until after plaintiff filed his claim with the Commission.
Coward, Hicks & Siler, P.A., by Orville D. Coward, for the
plaintiff-appellee.
Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Dale A.
Curriden, for the defendant-appellants.
EAGLES, Chief Judge.
Defendants appeal from an opinion and award of the North
Carolina Industrial Commission holding that plaintiff suffers from
a compensable occupational disease. Defendants argue that
plaintiff failed to notify his employer of his occupational disease
within the two-year period prescribed by statute. Because
plaintiff gave notice to his employer in ample time, we affirm the
decision of the commission.
Plaintiff began working for defendants in 1973. Until 1983when plaintiff became a supervisor, plaintiff primarily
worked in
the field. His duties included visiting with customers to explain
services; pouring, spraying and applying pesticides in and around
customer homes or buildings; hauling and mixing chemicals for use
in pest control; and inspecting fumigated premises. As a result of
plaintiff's duties at work, he was exposed to approximately 39
different toxic chemicals. When plaintiff was promoted to
supervisor in 1983, plaintiff was less frequently directly exposed
to the chemicals, although he continued to be exposed 2-3 times a
week.
In 1990 plaintiff began to develop headaches and difficulty
catching his breath. Plaintiff was initially diagnosed by his
internal medicine specialist as having allergic asthma. Plaintiff
began missing time from work due to these problems. Later that
year, plaintiff was referred to two specialists, one with a
subspecialty in allergy, asthma, and immunology. In October 1991,
plaintiff had a severe flare-up of his asthma requiring a seven day
hospitalization. Plaintiff's condition deteriorated and plaintiff
was required to see his physicians more frequently. In 1992, Dr.
Benjamin Douglas performed functional endoscopic sinus surgery on
plaintiff.
Plaintiff continued to work although his condition was
progressively becoming worse. In 1992, plaintiff was hospitalized
for 3-5 days on 3 separate occasions. On 20 September 1992
plaintiff became totally incapable of earning wages and resigned
his job. Dr. Troxler communicated with the Social Security
Administration, stating that plaintiff was totally incapacitated byhis asthma. On 24 January 1994 plaintiff filed a Form 18 claim for
compensation.
The Commission held that the 24 January 1994 claim was timely
filed. Plaintiff was not informed by competent medical authority
that there was a probable causal connection between his employment
and his disabling asthma until April 1994 when his doctors advised
him. However, plaintiff was notified in June of 1992 that his
doctors believed there may be a causal relationship between his
employment and his asthma. Dr. Russell opined that a number of
chemicals that plaintiff was in contact with could cause
plaintiff's respiratory difficulties. Many of them contained
organophosphates which are blamed for 5 to 20% of asthmatics'
respiratory problems. The doctors opined that plaintiff is
temporarily totally disabled from working in any job in the
competitive market.
Although defendants present several assignments of error in
the record on appeal, they argue only one issue in their appellate
brief. Therefore the remaining assignments of error are abandoned.
See N.C. R. App. P. 28(b)(5). The only issue on appeal is whether
plaintiff timely filed his claim.
Whether the claim for an occupational disease was filed timely
is an issue of jurisdiction for the commission. “[T]he finding of
a jurisdictional fact by the Industrial Commission is not
conclusive upon appeal even though there be evidence in the record
to support such finding.” Lucas v. Stores, 289 N.C. 212, 218, 221
S.E.2d 257, 261 (1976). The reviewing courts are obliged to make
independent findings of jurisdictional facts based uponconsideration of the entire record. Lawson v. Cone Mills Corp., 68
N.C. App. 402, 404, 315 S.E.2d 103, 105 (1984); Dowdy v. Fieldcrest
Mills, 308 N.C. 701, 705, 304 S.E.2d 215, 218 (1983). N.C.G.S. §
97-58 prescribes a time limit for filing claims for occupational
disease.
(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 case 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. Provided,
however, that the right to compensation for radiation
injury, disability or death shall be barred unless a
claim is filed within two years after the date upon which
the employee first suffered incapacity from the exposure
to radiation and either knew or in the exercise of
reasonable diligence should have known that the
occupational disease was caused by his present or prior
employment.
N.C.G.S. § 97-58(b) and (c) (1999) (emphasis added). In Taylor v.
Stevens & Co., our Supreme Court held that sections (b) and (c) of
N.C.G.S. § 97-58 must be read in pari materia. Taylor, 300 N.C.
94, 265 S.E.2d 144 (1980). 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.
Since the cause of plaintiff's disease is not at issue, weaddress the timeliness of plaintiff's claim. This Court
in Meadows
v. N.C. Department of Transportation, 140 N.C. App. 183, 535 S.E.2d
895 (2000) addressed a similar issue. In Meadows, this Court held
that to “trigger the running of the statutory time limit, the
employee first 'must be informed clearly, simply and directly that
[h]e has an occupational disease and that the illness is work-
related.'” Id. at 190, 535 S.E.2d at 900; Lawson, 68 N.C. App. at
403, 315 S.E.2d at 104. The law does not require an employee to
diagnose himself or file a claim based on his own suspicions.
Duncan v. Carpenter, 233 N.C. 422, 427, 64 S.E.2d 410, 414 (1951),
overruled on other grounds, 300 N.C. 94, 265 S.E.2d 144 (1980).
Here the plaintiff was not notified that he had an
occupational disease until April of 1994, some three months after
his Form 18 was filed. The doctors testified that they had shared
suspicions with each other of a causal relationship between
plaintiff's work and health. However, no testimony was offered
that any of those doctors informed the plaintiff that his job was
causing his disease.
Plaintiff became aware that he was disabled on 30 September
1992 when Dr. Troxler wrote the Social Security Administration
notifying them that plaintiff was disabled and totally unable to
work. North Carolina's Workers' Compensation Act N.C.G.S. § 97-2
(9) provides, "[t]he 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 .” Id.
Until 20 September 1994, plaintiff had been able to maintainhis position with Terminix although he had missed some
days.
Terminix argues that according to Dowdy, plaintiff was unable to
earn wages as early as the first hospitalization in 1991. In
Dowdy, the plaintiff frequently could not work a forty hour week.
Id., 308 N.C. at 709, 304 S.E.2d at 220. After reviewing the
record in Dowdy, our Supreme Court noted that although plaintiff
was able to work a few full weeks over the course of 1974, 1975,
and 1976, plaintiff was unable to earn wages at the same rate since
1974. Id. Further, defendants' reliance on Dowdy is misplaced
since the plaintiff in that case was informed by a doctor that he
had a work-related lung disease more than two years before he filed
his claim. Id. at 710, 304 S.E.2d at 221.
Here, plaintiff was hospitalized on four separate occasions
for one week or less beginning in 1991. He was not “advised by a
competent medical authority” that his work was causing his disease
until later. Until 20 September 1992 when his doctor declared him
disabled, plaintiff was able to work at the same rate as he had
been working. Although the evidence shows that plaintiff was not
advised of the relationship between his work and his disease as
required by N.C.G.S. § 92-58 until 1994, plaintiff was disabled as
of 1992. “[D]isability or disablement is one of the triggering
factors which begins the running of the two year limitation on
filing claims.” Dowdy, 308 N.C. at 714, 304 S.E.2d at 223.
The question presented here, is much closer to the question
presented by Lawson. In Lawson we concluded that although the
plaintiff was told by a doctor that he had a lung disease, thestatutory period was not triggered since the evidence also showed
that he was not told that his disease was caused by conditions on
his job. Id., 68 N.C. App. at 410, 315 S.E.2d at 108; McCubbins
v. Fieldcrest Mills, Inc., 79 N.C. App. 409, 413, 339 S.E.2d 497,
499 (1986). In McCubbins the record shows it was not until several
months after plaintiff's claim was filed, that plaintiff was
advised by a doctor that her lung disease was related to her work.
Id. Here, the record shows that plaintiff was not advised clearly
that his work and his disease were related until after plaintiff
filed his claim with the commission. Although plaintiff and one of
his doctors had shared a suspicion that his work may be affecting
his asthma; we hold that on this record, sharing a suspicion is not
sufficient notice by a competent medical authority.
After reviewing the record, we hold that the statutory factors
necessary to start the running of the two year limitation on filing
of claims were not in existence until April of 1994. Plaintiff was
disabled as of 20 September 1992, but was not advised by a
competent medical authority that his disease was a result of his
occupation until April 1994. Accordingly, we conclude that the
Industrial Commission properly exercised jurisdiction over
plaintiff's claim. Accordingly, the opinion and award of the
Commission is hereby affirmed.
Affirmed.
Judges HUDSON and SMITH concur.
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