Barham v. Kayser-Roth Hosiery Co.

• Court: North Carolina Court of Appeals
• Writing for the Court: MORRIS
• Citation: Barham v. Kayser-Roth Hosiery Co., 190 S.E.2d 306, 15 N.C.App. 519 (N.C. App. 1972)
• Decision Date: 02 August 1972
• Docket Number: No. 7215IC467,KAYSER-ROTH,7215IC467
• Parties: Howard H. BARHAM, Employee, Plaintiff, v.HOSIERY CO., Inc., Employer, Insurance Company of North America, Carrier, Defendants.

Page 306

190 S.E.2d 306

15 N.C.App. 519

Howard H. BARHAM, Employee, Plaintiff, v. KAYSER-ROTH HOSIERY CO., Inc., Employer, Insurance Company of North America, Carrier, Defendants.

No. 7215IC467.

Court of Appeals of North Carolina.

Aug. 2, 1972.

Long, Ridge & Long by George A. Long, Graham, for plaintiff appellant.

J. B. Winecoff, Greensboro, for defendant appellees.

MORRIS, Judge.

Defendants concede that G.S. § 97--47 has no application to the facts of this case so that the only question presented is: Whether the North Carolina Industrial Commission had jurisdiction when plaintiff did not file a claim with the Commission and no claim was filed on his behalf within the time allowed by G.S. § 97--24(a)? This question must be answered in the negative. G.S. § 97--24(a) provides:

'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, and if death results from the accident, unless a claim be filed with the Commission within one year thereafter.'

Plaintiff was injured on 2 March 1966, filed a claim on 6 April 1971, and makes no contention that any claim was filed on his behalf at any earlier date. It is well-settled law in this State, as enunciated most recently in the case of Montgomery v. Horneytown Fire Department, 265 N.C. 553, 144 S.E.2d 586 (1965), that the requirement of filing a claim in accord with the provisions of the above statute is a condition precedent to the right to compensation and not a statute of limitation. We cannot, as plaintiff urges, reverse 'the narrow and rigid doctrine' under these facts. The voluntary payment of a medical bill by defendant carrier in April of 1967 is not an admission of liability and does not dispense with the necessity of filing a claim with the Industrial Commission within two years of the date of the accident. Biddix v. Rex Mills, 237 N.C. 660, 75 S.E.2d 777 (1953). There is no evidence that the Industrial Commission acquired jurisdiction either by the timely filing of a claim or by the submission of a voluntary settlement agreement to the Commission for approval. Tabron v. Gold Leaf Farms, Inc., 269 N.C. 393, 152 S.E.2d 533 (1967). The Industrial Commission properly dismissed plaintiff's claim for lack of jurisdiction and this assignment of error is overruled.

Plaintiff contends that even though the claim was not timely filed, defendant is estopped to take advantage of his failure to file within...