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Gragg v. Harris

Filed: November 17, 1981.

CHARLES GRAGG, EMPLOYEE-PLAINTIFF
v.
W. M. HARRIS & SON, EMPLOYER, INSURANCE COMPANY OF NORTH AMERICA, CARRIER, DEFENDANTS



Appeal by plaintiff from the North Carolina Industrial Commission. Opinion and Award of Full Commission filed 16 December 1980. Heard in the Court of Appeals 14 October 1981.

Wells, Judge. Judges Martin (Robert) and Webb concur.

Wells

The issue we decide in this appeal is whether the insurance carrier waived the time limitation defense of G.S. 97-47*fn1 by not

raising it until after the first evidentiary hearing on plaintiff's claim.

In reviewing an award of the Industrial Commission, this Court's scope of review is limited to: (1) whether the Commissioner's findings are supported by any competent evidence, and (2) whether the Commissioner's findings justify its legal conclusions. Perry v. Furniture Co., 296 N.C. 88, 249 S.E.2d 397 (1978), Inscoe v. Industries, Inc., 292 N.C. 210, 232 S.E.2d 449 (1977).

Plaintiff's initial injury occurred on 16 September 1974, when he fell off of a roof while working as a carpenter. The injury produced pain in plaintiff's right ankle, right elbow, neck, and knees though no bones were broken. Defendant admitted liability, and plaintiff received temporary total disability compensation for his two-week loss of work immediately following the accident. Form 28B and the final draft were sent by the carrier to plaintiff on approximately 16 October 1974, and the draft was negotiated 28 October 1974. On approximately 8 September 1976, plaintiff notified his employer and the carrier that he was being hospitalized for a hip operation. The carrier's agent told the plaintiff that she would prepare the necessary papers for him to sign. Plaintiff signed and returned these papers before he was hospitalized on 14 September 1976. The hospital submitted Form 25H to the carrier on 12 October 1976. In December of 1976, the carrier informed plaintiff that coverage was being denied because his hip problems "did not result from an accident arising out of and in the course of your employment." In response, on 28 October 1977, plaintiff requested a hearing before the Industrial Commission, and a hearing was conducted by Deputy Commissioner Delbridge on 24 August 1978. Because one of defendant's medical witnesses was unable to be present at that hearing, Deputy Commissioner Delbridge continued the hearing at defendants' request. On 8 January 1979, plaintiffs were notified that defendants were asserting the time limitation as a defense. The second hearing was continued several times, and was finally held on 13 August 1979. At the hearing on 24 August 1978, the only issue raised by defendants

was the causal link between plaintiff's initial compensable injury and his subseqent hip operation.

In his order dated 30 November 1979, Deputy Commissioner Delbridge found as a fact that plaintiff's hospital filed Form 25H with the carrier, rather than the Industrial Commission, on 12 October 1976. He concluded as a matter of law that filing Form 25H did not constitute a claim for a change of condition on behalf of plaintiff, and therefore plaintiff's claim was filed more than two years after the date of his last payment of compensation.

Deputy Commissioner Delbridge also made a finding of fact that defendants raised the bar of the statutory limitation on 8 January 1979, and concluded that this was a timely pleading of the defense.

G.S. 97-47, which concerns a change of condition and modification of award, contains the proviso that "[n]o such review shall be made after two years from the date of the last payment of compensation. . . ." This restriction has been construed to be a statute of limitations, rather than a jurisdictional bar. Ammons v. Sneeden's Sons, Inc., 257 N.C. 785, 127 S.E.2d 575 (1962), Watkins v. Motor Lines, 10 N.C. App. 486, 179 S.E.2d 130 (1971), rev'd. on other grounds, 279 N.C. 132, 181 S.E.2d 588 (1971). This distinguishes G.S. 97-47 from G.S. 97-58(c) and G.S. 97-24, other time limitations of the Workers' Compensation Act, G.S. 97-1 et seq., compliance with each of which has been construed to be a condition precedent to jurisdiction of the Industrial Commission over the claim. Pennington v. Flame Refractories, Inc., 53 N.C. App. 584, 281 S.E.2d 463 (1981), Poythress v. Stevens and Co., Inc., 54 N.C. App. 376, (No 8110IC222, filed 3 November 1981). Clark v. Ice Cream Co., 261 N.C. 234, 134 S.E.2d 354 (1963), McCrater v. Engineering Corp., 248 N.C. 707, 104 S.E.2d 858 (1958). Jurisdiction may be raised by any of the parties or the Commission ex mero motu at any time during the course of the proceeding. Clark v. Ice Cream Co., supra, McCrater v. Engineering Corp., supra. 12 Schneider Workmens Compensation Text, Limitations and Notice, § 2375.

Under general principles of civil procedure, however, the statute of limitations is a technical defense, and must be timely pleaded or it is deemed waived. 8 Strong's N.C. Index 3d, Limitation of Actions, § 16, 54 C.J.S. Limitations of Actions, § 354, Overton Page 610} v. Overton, 259 N.C. 31, 129 S.E.2d 593 (1963), see G.S. 1A-1, Rule 12(b). ...


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