Dowdy v. Fieldcrest Mills, Inc.

• Decision Date: 07 July 1983
• Docket Number: No. 21PA83,21PA83
• Citation: 304 S.E.2d 215,308 N.C. 701
• Parties: Roy G. DOWDY v. FIELDCREST MILLS, INC.
• Court: North Carolina Supreme Court

Page 215

304 S.E.2d 215

308 N.C. 701

Roy G. DOWDY v. FIELDCREST MILLS, INC.

No. 21PA83.

Supreme Court of North Carolina.

July 7, 1983.

Michaels & Jernigan by Leonard T. Jernigan, Jr. and Paul J. Michaels, Raleigh, for plaintiff-appellee.

Smith, Moore, Smith, Schell & Hunter by J. Donald Cowan, Jr. and Caroline Hudson, Greensboro, for defendant-appellant.

MITCHELL, Justice.

The primary issues presented by this case are whether the plaintiff filed his claim within the time prescribed by G.S. 97-58 and whether the defendant is equitably estopped from raising the plaintiff's failure to file a timely claim as a defense. We hold that the plaintiff's claim was not timely filed and that the defendant may raise this fact as a defense.

The defendant assigns as error the entry of the order and award for the plaintiff by the Industrial Commission. In support of this assignment, the defendant contends that the Industrial Commission was without authority to enter the award as the plaintiff's claim was filed more than two years after his disability arose and was barred by G.S. 97-58(c). We agree.

Subsection (c) of G.S. 97-58 states in pertinent part: "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." The two year time limit under G.S. 97-58(c) for filing claims with the Industrial Commission is a condition precedent with which a claimant must comply in order to confer jurisdiction on the Industrial Commission to hear the claim. Poythress v. J.P. Stevens, 54 N.C.App. 376, 283 S.E.2d 573 (1981), disc. rev. denied, 305 N.C. 153, 289 S.E.2d 380 (1982). The burden is on the plaintiff to establish that the claim was timely filed, and a failure to do so creates a jurisdictional bar to the claim. Id.

Except as to questions of jurisdiction, findings of fact by the Industrial Commission are conclusive on appeal when supported by competent evidence even though there is evidence to support contrary findings. G.S. 97-86; Morrison v. Burlington Industries, 304 N.C. 1, 282 S.E.2d 458 (1981). Findings of jurisdictional fact by the Industrial Commission, however, are not conclusive upon appeal even though supported by evidence in the record. Richards v. Nationwide Homes, 263 N.C. 295, 139 S.E.2d 645 (1965). A challenge to jurisdiction may be made at any time. Id. When a defendant employer challenges the jurisdiction of the Industrial Commission, any reviewing court, including the Supreme Court, has the duty to make its own independent findings of jurisdictional facts from its consideration of the entire record. Lucas v. Stores, 289 N.C. 212, 221 S.E.2d 257 (1976).

Both the Industrial Commission and the Court of Appeals found that the plaintiff was disabled at the time he quit his job with the defendant on 1 March 1976 because of health problems. The Industrial Commission and the Court of Appeals also found that the two year time limit for filing claims under G.S. 97-58(c) was complied with by the plaintiff when he filed his claim with the Industrial Commission on 24 February 1978. These findings are jurisdictional findings of fact fully reviewable by this Court. Having reviewed the entire record, we find that the plaintiff was disabled within the meaning of G.S. 97-58(c) no later than 1974 and that the claim filed by him on 24 February 1978 does not establish timely filing required to confer jurisdiction on the Industrial Commission to hear the claim. Therefore, the Industrial Commission should have dismissed the plaintiff's claim for want of jurisdiction. Richards v. Nationwide Homes, 263 N.C. 295, 139 S.E.2d 645 (1965).

The record before us on appeal reveals, inter alia, that the plaintiff was born on 1 April 1921 and completed the sixth grade in public school. He began work in the card room at Dan River Mills in 1936 where he was exposed to cotton dust. He worked continuously in the card room, exposed to thick cotton dust in the work environment. He worked there until 1968 when he went to work in the defendant's card room. He continued to be exposed to thick cotton dust in the work environment. While working for the defendant, the plaintiff developed breathing problems. He noticed that he had trouble breathing and sleeping at night and was bothered by coughing and shortness of breath. Other facts are set forth hereinafter where pertinent.

In Taylor v. Stevens & Co., 300 N.C. 94, 265 S.E.2d 144 (1980), we indicated that sections (b) and (c) of G.S. 97-58 must be construed in pari materia. We further indicated that, when these sections are read in pari materia, they establish the factors which commence the running of the two year period within which claims must be filed in cases of occupational disease. The two year period within which claims for benefits for an occupational disease must be filed under G.S. 97-58(c) begins running when an employee has suffered injury from an occupational disease which renders the employee incapable of earning the wages the employee was receiving at the time of the incapacity by such injury, and the employee is informed by competent medical authority of the nature and work related cause of the disease. Id. at 98-99 and 102, 265 S.E.2d at 147 and 149. The two year period for filing claims for an occupational disease does not begin to run until all of these factors exist.

In order to perform our duty of determining necessary jurisdictional facts in this case, it is necessary for this Court to determine at what time all of the factors referred to in Taylor first existed. In finding these jurisdictional facts, we must now turn to a review of the entire record.

We first must determine when the plaintiff initially "suffered injury from an occupational disease." The defendant sent the plaintiff to Chapel Hill, North Carolina, to be examined by Dr. Mario C. Battigelli in February, 1973. The written report of Dr. Battigelli's examination of the plaintiff reveals inter alia the following:

Impression: Obstructive disease in cigarette smoker with distinct aggravation on cotton dust exposure.

PATIENT: Encouraged to discontinue smoking and dust exposure and follow bronchial drainage treatment a half an hour each day.

Dr. Battigelli also found the plaintiff "presents convincing evidence of obstructive lung disorder ...." Dr. Battigelli went on in his report to conclude:

In conclusion this patient is severely disabled and he should not be exposed any further to air borne irritants namely cigarette smoke and industrial dust. He presents a well documented degree of respiratory impairment of moderate to severe extent, and he is entitled to a total disability rating on respiratory grounds. The etiology of such an impairment is probably due to in part to the cotton dust exposure in spite of the fact that the diagnosis of byssinosis is not warranted in view of the only occasional occurrence of complaints in relation to cotton dust exposure. If this subject has byssinosis this problem appears only an addition rather than the substance of his present impairment.

The defendant himself testified that he had first noticed his breathing problem before 1973, but "I thought it would get better." He also testified that:

I first noticed that I was experiencing any breathing problem in about 1970. I thought I could shake it off, and again back in 1973 I think they brought the blowing machine through the mill and that's when they really found out that I was bad. I had no breath. Dr. Springer, the company doctor, got me to see Dr. Battigelli.

In the early '70's, on Mondays and Tuesdays I would tighten up. Then it would let off a little. I would push through the week and get out and get a little air and loosen up and go back. By 1973 it got bad. That's why Dr. Springer wanted me to go to Chapel Hill to Dr. Battigelli.

The record reveals that the plaintiff also testified to the following facts:

Q. Now, Mr. Dowdy, I want to go back to 1973 when you went down to Chapel Hill to see Dr. Battigelli. You remember doing that?

A. Yeah, I remember that.

Q. Okay, were you having problems with your breathing pretty bad at that time?

A. That's right.

Q. Did it cause you to miss some time from work?

A. Yes.

Q. Both before and after you went to the hospital at Chapel Hill to see Dr. Battigelli you were having to miss time from work because of your breathing problems, weren't you?

A. That's right.

It is clear in this case, as it was in Rutledge v. Tultex Corp., 308 N.C. 85, 101, 301 S.E.2d 359, 369 (1983), that if the plaintiff had an occupational disease in 1973 it was a chronic obstructive lung disease, which may be an occupational disease under G.S. 97-53(13). In Rutledge we stated:

[C]hronic obstructive lung disease may be an occupational disease provided the occupation in question exposed the worker to a greater risk of contracting this disease than members of the public generally, and provided the worker's exposure to cotton dust significantly contributed to, or was a significant causal factor in, the disease's development. This is so even if other non-work-related factors also make significant contributions, or were significant causal factors.

Id. at 101, 301 S.E.2d at 369-70. Dr. Battigelli's report tended to show that the plaintiff's disease was "probably due in part to cotton dust exposure" and that there was "distinct aggravation" of his symptoms when exposed to cotton dust. When viewed in light of the testimony by the plaintiff and others that the plaintiff's condition became substantially worse each time he was exposed to cotton dust, this evidence was sufficient to support a finding that the plaintiff's exposure to cotton dust in his employment significantly contributed to or was a significant causal factor in the disease.

We find that the plaintiff suffered from a chronic obstructive lung disease in 1973. We further find that the plaintiff's employment...