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Terrell v. Terminix Services2/20/2001
221 S.E.2d 257, 261 (1976). The reviewing courts are obliged to make independent findings of jurisdictional facts based upon consideration of the entire record. Lawson v. Cone Mills Corp., 68 N.C. App. 402, 404, 315 S.E.2d 103, 105 (1984); Dowdy v. Fieldcrest Mills, 308 N.C. 701, 705, 304 S.E.2d 215, 218 (1983). N.C.G.S. § 97-58 prescribes a time limit for filing claims for occupational disease.
(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 after death, disability, or disablement as the case may be. Provided, however, that the right to compensation for radiation injury, disability or death shall be barred unless a claim is filed within two years after the date upon which the employee first suffered incapacity from the exposure to radiation and either knew or in the exercise of reasonable diligence should have known that the occupational disease was caused by his present or prior employment. N.C.G.S. § 97-58(b) and (c) (1999) (emphasis added).
In Taylor v. Stevens & Co., our Supreme Court held that sections (b) and (c) of N.C.G.S. § 97-58 must be read in pari materia. Taylor, 300 N.C. 94, 265 S.E.2d 144 (1980). The two year period within which claims for benefits for an occupational disease must be filed begins running when an employee has suffered injury from 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 the employee is informed by competent medical authority of the nature and work-related cause of the disease. Id. Since the cause of plaintiff's disease is not at issue, we address the timeliness of plaintiff's claim. This Court in Meadows v. N.C. Department of Transportation, N.C. App. , 535 S.E.2d 895 (2000) addressed a similar issue. In Meadows, this Court held that to "trigger the running of the statutory time limit, the employee first `must be informed clearly, simply and directly that e has an occupational disease and that the illness is work-related.'" Id. at , 535 S.E.2d at 900; Lawson, 68 N.C. App. at 403, 315 S.E.2d at 104. The law does not require an employee to diagnose himself or file a claim based on his own suspicions. Duncan v. Carpenter, 233 N.C. 422, 427, 64 S.E.2d 410, 414 (1951), overruled on other grounds, 300 N.C. 94, 265 S.E.2d 144 (1980).
Here the plaintiff was not notified that he had an occupational disease until April of 1994, some three months after his Form 18 was filed. The doctors testified that they had shared suspicions with each other of a causal relationship between plaintiff's work and health. However, no testimony was offered that any of those doctors informed the plaintiff that his job was causing his disease.
Plaintiff became aware that he was disabled on 30 September 1992 when Dr. Troxler wrote the Social Security Administration notifying them that plaintiff was disabled and totally unable to work. North Carolina's Workers' Compensation Act N.C.G.S. § 97-2 (9) provides, " he 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." Id.
Until 20 September 1994, plaintiff had been able to maintain his position with Terminix although he had missed some days. Terminix ar
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