Rutledge v. Stroh Companies , 105 N.C. App. 307 ( 1992 )

HEDRICK, Chief Judge.

Plaintiff’s sole assignment of error is the Industrial Commission erred in denying plaintiff’s claim on the grounds that it was barred by the statute of limitations in G.S. 97-58(c). Plaintiff argues he filed his claim within two years of receiving notice of the nature and work-related cause of the disease. Furthermore, plaintiff contends that even if he had been put on notice of his disease more than two years prior to filing his claim, the additional requirement of “disability" had not been met at that time, and therefore, the statute of limitations has not run.

G.S. 97-58 provides in pertinent part:

(b) . . . 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 the same.

(c) 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 ... .

In interpreting this statute, this Court found that two conditions must be met in order to start the two-year statute of limitations running against a claimant: (1) The employee must have suffered an occupational disease which renders the employee incapable of earning, at any job, the wages the employee was receiving at the time of the incapacity, and (2) the employee has been informed by competent medical authority of the nature and work-related cause of the disease. Underwood v. Cone Mills, 78 N.C. App. 155, 336 S.E.2d 634, disc. review denied, 316 N.C. 202 (1985).

In Underwood, plaintiff began experiencing breathing problems which gradually worsened over the course of several years. Plaintiff saw a doctor in 1980, who informed plaintiff that he had chronic bronchitis, respiratory infection and allergies, and these conditions were possibly aggravated by plaintiff’s exposure to cotton dust at work. Plaintiff was given a job in a different area where dust was less prevalent, but again experienced difficulties and was diagnosed as having chronic obstructive pulmonary disease in March 1981. The Industrial Commission awarded lifetime benefits, and defendant appealed on the grounds the claim was time-barred by G.S. 97-58. This Court applied the two part test set out above, and found plaintiff did not become disabled until he was forced to stop work of any kind because of his occupational disease, and since he was able to earn the wages he had always received until that date, the arguments about when plaintiff was first informed of the nature and work-related cause of his disease became irrelevant. Id., 336 S.E.2d 364.

Similarly, in the present case, plaintiff was not forced to stop work of any kind because of “hyperreactive airways disease,” until he became seriously ill in January and February 1988. Since plaintiff was still capable of earning the wages he had received in the past, albeit in a different environment such as when Stroh transferred him off the canning line, plaintiff was not incapable of earning the wages he had received at the time of the onset of his illness, and therefore the running of the statute of limitations was not triggered. As in Underwood, we need not address the question of the date on which plaintiff was informed by competent medical authority of the nature and work-related cause of his disease.

The Industrial Commission clearly dismissed plaintiff’s claim on jurisdictional grounds and did not reach the merits of plaintiff’s claim. The question of whether plaintiff suffers from an occupational disease is still before the Commission. Our decision today, reversing the ruling of the Commission with respect to jurisdiction means that the Commission must rule on plaintiff’s claim on the merits, and for that purpose, the cause will be remanded to the Industrial Commission.

Reversed and remanded.

Judges Wells and Johnson concur.