Taylor v. J. P. Stevens and Co.

• Decision Date: 06 May 1980
• Docket Number: No. 35,35
• Citation: 300 N.C. 94,265 S.E.2d 144
• Parties: Lucy Wood TAYLOR, v. J. P. STEVENS AND COMPANY, Employer, Liberty Mutual Insurance Company, Carrier, Defendants.
• Court: North Carolina Supreme Court

Page 144

265 S.E.2d 144

300 N.C. 94

Lucy Wood TAYLOR, v. J. P. STEVENS AND COMPANY, Employer Liberty Mutual Insurance Company, Carrier, Defendants.

No. 35.

Supreme Court of North Carolina.

May 6, 1980.

Teague, Campbell, Conely & Dennis by C. Woodrow Teague and George W. Dennis, III, Raleigh, for defendants-appellants.

Davis, Hassell & Hudson by Charles R. Hassell, Jr., and Robin E. Hudson, Raleigh, for plaintiff-appellee.

CARLTON, Justice.

At issue in this case is whether a worker claiming disability from an occupational disease under the North Carolina Workers' Compensation Act, G.S. 97-1 et seq., must prove the disability arose within one year from the last exposure to hazardous working conditions. We hold that she does not and therefore affirm and modify the decision of the Court of Appeals.

An employee seeking occupational disease disability payments under the North Carolina Workers' Compensation Act must negotiate a careful scheme of notice and claim in order to recover benefits. Both the general notice provisions of G.S. 97-22 and the general claim provisions of G.S. 97-24 are triggered by the occurrence of an accident rather than the onset of an injury, a statutory plan followed in half of the states in the country. 3 A. Larson, Workmen's Compensation Law § 78.42(a) (1976). However, this presents peculiar problems in the case of a latent injury or an occupational disease. Unlike accidents which are sudden and obvious, such diseases and injuries frequently develop insidiously, and, in the case of diseases, usually only manifest themselves after long and cumulative exposure to hazardous substances. The General Assembly, in providing for notice to employers, has considered the latent quality of occupational diseases and has expressly circumvented the problem.

Thus, while G.S. 97-22 provides:

Notice of accident to employer. Every injured employee or his representative shall immediately on the occurrence of an accident, or as soon thereafter as practicable, give or cause to be given to the employer a written notice of the accident . . . but no compensation shall be payable unless such written notice is given within 30 days after the occurrence of the accident or death, unless reasonable excuse is made to the satisfaction of the Industrial Commission for not giving such notice and the Commission is satisfied that the employer has not been prejudiced thereby (Emphasis added),

G.S. 97-58(b) states simply that "(t)he 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 (the occupational disease)." ¹

The plan for complying with the claim provisions of the statute in the case of occupational diseases is a little more complex. The general claim provisions of G.S. 97-24(a) provides that a claim must "be filed with the Industrial Commission within two years after the accident." (Emphasis added.) G.S. 97-52, however, provides that "(d)isablement or death of an employee resulting from an occupational disease . . . shall be treated as the happening of an injury by accident." (Emphasis added.)

The statutory scheme does not stop there. G.S. 97-58(c) further provides that in the case of an occupational disease, "The right to compensation . . . 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." (Emphasis added.)

Disability and disablement are technical words defined elsewhere in the statutes. G.S. 97-55 provides that "(t)he term 'disability' . . . means the state of being incapacitated as the term is used in defining disablement in G.S. 97-54." (Emphasis added.)

G.S. 97-54 provides that in all cases of occupational disease other than asbestosis or silicosis, " 'disablement' shall be equivalent to 'disability' as defined in G.S. 97-2(9)."

G.S. 97-2(9) provides, "The 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." (Emphasis added.)

Although this statutory route is circuitous and somewhat redundant, it seems clear that the General Assembly has emphasized that two factors trigger the onset of the two-year period in the case of an occupational disease. Time begins running when an employee has suffered:

(1) injury from an occupational disease which

(2) renders the employee incapable of earning the wages the employee was receiving at the time of the incapacity by injury.

Defendants assert here that the disablement must in any event be within one year of last exposure to the occupational hazard which led to the disease. They rely for authority on Duncan v. Carpenter, 233 N.C. 422, 64 S.E.2d 410 (1951).

In Duncan v. Carpenter, supra, plaintiff was claiming disability from silicosis under G.S. 97-58. Then, as now, that statute in pertinent part provided:

Claims for certain diseases restricted; time limit for filing claims. (a) (A)n employer shall not be liable for any compensation for asbestosis or silicosis or lead poisoning unless disablement or death results within two years after the last exposure to such disease, or, in case of death, unless death follows continuous disablement from such disease, commencing within the period of two years limited herein, and for which compensation has been paid or awarded or timely claim made as hereinafter provided and results within seven years after such last exposure . . . .

(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 (then one year) after death, disability, or disablement as the case may be.

The Duncan Court construed G.S. 97-58(a) in pari materia with G.S. 97-58(b) and held that time for claim to the Industrial Commission in the event of asbestosis, silicosis and lead poisoning should "date from the time the employee was notified by competent medical authority that he had such disease." 233 N.C. at 427, 64 S.E.2d at 414. However, the Court went on to say,

It follows, however, as a matter of course, that the finding of the competent medical authority must be to the effect that disablement occurred within two years from the last exposure in cases of asbestosis, silicosis and lead poisoning, and in claims involving other occupational diseases that disability occurred within one year thereof.

Id., 64 S.E.2d at 414 (Emphasis added).

Defendants cite this passage as settled authority that plaintiff must show she was disabled from lung disease within one year of her last exposure to cotton dust. We disagree and to the extent that dictum in Duncan v. Carpenter has been construed to mean that disablement must be within one year of last exposure from hazards in the case of all occupational diseases, that construction is expressly disavowed.

It is clear that the Duncan Court was deciding the time for disablement in a case of silicosis and only a case of silicosis. It is also clear that silicosis, along with asbestosis, holds a special place in our Workers' Compensation Act. G.S. 97-60 through G.S. 97-61.7 set up a special program which monitors workers at risk of developing these diseases. Furthermore, unlike the case of disablement from other occupational diseases, disablement from silicosis and asbestosis is measured from the time a claimant can no longer work at dusty trades, not from the time he can no longer work at any job. G.S. 97-54. The inference is clear that because an employee with either of these diseases would have been carefully monitored throughout his entire course of employment and would have been, theoretically at least, informed of the presence of either of these diseases and removed from the hazard before reaching total disability, and in fact would have been compensated for the removal, the two-year time limit for disability under G.S. 97-58(a) was an equitable provision.

Nothing in G.S. 97-58(a) or indeed any other provision of the Workers' Compensation Act, however, limits disablement from other occupational diseases to a time one year subsequent to last exposure to hazardous substances. Certainly, the special statutory provisions justifying such a limit for disablement in the case of asbestosis and silicosis are absent from provisions for other occupational diseases. Equally certain, the question of time of disablement in any other occupational disease was not before the Court in Duncan v. Carpenter. Thus the sentence in that case relied upon by defendants here to limit claims for all occupational diseases was mere obiter dictum and is not binding on this Court or any other.

The problem remains, however, that plaintiff here has presented some evidence her disablement began in 1963, but she did not claim her benefits until 1975, long past the two-year claim period provided by G.S. 97-58(c). Defendants alternately argue that plaintiff's claim should be barred since she did not comply with G.S. 97-58(c).

This Court has long held that disablement for the purpose of notice and claim in the case of silicosis and asbestosis dates from the time an employee was first advised he had the disease, even if the disablement existed from the time the employee quit work. Thus in Autrey v. Victor Mica Company, 234 N.C. 400, 67 S.E.2d 383 (1951), claimant ceased work in 1945, three years prior to his claim. At that time he was told he had asthma and dust allergy. Only in 1948 was he informed that the nature of his disease was silicosis and that the silicosis was work related. This Court held his claim allowable and dated the time of...