Appeal by plaintiff from the opinion and award of the North Carolina Industrial Commission filed 11 September 1980. Heard in the Court of Appeals 13 October 1981.
Martin (Harry C.), Judge. Judges Hedrick and Clark concur.
In reviewing an award of the Industrial Commission, this Court is limited to two questions: (1) whether the Commission's findings are supported by any competent evidence in the record; and (2) whether the Commission's findings justify its legal conclusions. Inscoe v. DeRose Industries, 292 N.C. 210, 232 S.E.2d 449 (1979); Walston v. Burlington Industries, 49 N.C. App. 301, 271 S.E.2d 516 (1980). However, as plaintiff contends that defendants waived the defense of N.C.G.S. 97-58(c) by failing to raise it until after all evidentiary hearings had been concluded, we first deal with this important procedural question.
Assuming that the two-year limit for filing claims under N.C.G.S. 97-58(c) is in the nature of a statute of limitations to be pleaded and proved by defendants, plaintiff's contention finds
doubtful support in the law. Because the case involves an administrative proceeding instituted by an application for workers' compensation benefits rather than formal pleadings, the rights of the parties are to be determined by the facts. See In re Gibbs, 205 N.C. 312, 171 S.E. 55 (1933). The facts in this case point to only one conclusion -- the plaintiff did not comply with the applicable time limit for filing claims in order to determine her right to compensation for occupational disease. Moreover, it has been stated that:
The Administrative Procedure Act provides very clearly what constitutes a final agency decision. By its very nature a decision that is not final is subject to change. This is as it should be. Administrative agencies should be encouraged to continue cases under active deliberation until rendition of a final decision to assure that that decision is the product of adequate, sound deliberation. See Daye, North Carolina's New Administrative Procedure Act: An Interpretive Analysis, 53 N.C.L. Rev. 833, 892 (1975). . . . [A]n agency retains jurisdiction to continue its deliberations after an initial vote and until such time as a final agency decision is rendered . . . .
In re Savings & Loan Assoc., 53 N.C. App. 326, 330, 280 S.E.2d 748, 750 (1981).
Defendants would have us construe N.C.G.S. 97-58(c) not in the nature of a statute of limitations, but as a condition precedent. Under this construction, plaintiff's failure to comply with the condition would create a jurisdictional bar to her claim. Her waiver argument fails as lack of jurisdiction over the subject matter may be taken advantage of at any stage of the proceedings, even after judgment. Clark v. Ice Cream Co., 261 N.C. 234, 134 S.E.2d 354 (1964); McCrater v. Engineering Corp., 248 N.C. 707, 104 S.E.2d 858 (1958).
We find no North Carolina case in which this question has been presented for resolution. Our Courts have held that N.C.G.S. 97-24, which deals with injury by accident as opposed to occupational disease, constitutes a condition precedent to the right to compensation. Subsection (a) of that statute reads:
"The right to compensation under this Article shall be forever barred unless a claim be filed with the Industrial Commission within two years after the accident."
Subsection (c) of N.C.G.S. 97-58 reads:
"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."
We find that the two subsections are substantially similar in language and intent*fn1 and a like construction should be applied to both.
In McCrater, a case that was decided under N.C.G.S. 97-24(a), the Court discussed the distinction between statutes of limitation and conditions precedent as follows:
"A statute of limitations should be differentiated from conditions which are annexed to a right of action created by statute. A statute which in itself creates a new liability, gives an action to enforce it unknown to the common law, and fixes the time within which that action may be commenced, is not a statute of limitations. It is a statute of creation, and the commencement of the action within the time it fixes is an indispensable condition of the liability and of the action which it permits. ...