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Terrell v. Terminix Services2/20/2001
gues that according to Dowdy, plaintiff was unable to earn wages as early as the first hospitalization in 1991. In Dowdy, the plaintiff frequently could not work a forty hour week. Id., 308 N.C. at 709, 304 S.E.2d at 220. After reviewing the record in Dowdy, our Supreme Court noted that although plaintiff was able to work a few full weeks over the course of 1974, 1975, and 1976, plaintiff was unable to earn wages at the same rate since 1974. Id. Further, defendants' reliance on Dowdy is misplaced since the plaintiff in that case was informed by a doctor that he had a work-related lung disease more than two years before he filed his claim. Id. at 710, 304 S.E.2d at 221.
Here, plaintiff was hospitalized on four separate occasions for one week or less beginning in 1991. He was not "advised by a competent medical authority" that his work was causing his disease until later. Until 20 September 1992 when his doctor declared him disabled, plaintiff was able to work at the same rate as he had been working. Although the evidence shows that plaintiff was not advised of the relationship between his work and his disease as required by N.C.G.S. ยง 92-58 until 1994, plaintiff was disabled as of 1992. " isability or disablement is one of the triggering factors which begins the running of the two year limitation on filing claims." Dowdy, 308 N.C. at 714, 304 S.E.2d at 223.
The question presented here, is much closer to the question presented by Lawson. In Lawson we concluded that although the plaintiff was told by a doctor that he had a lung disease, the statutory period was not triggered since the evidence also showed that he was not told that his disease was caused by conditions on his job. Id., 68 N.C. App. at 410, 315 S.E.2d at 108; McCubbins v. Fieldcrest Mills, Inc., 79 N.C. App. 409, 413, 339 S.E.2d 497, 499 (1986). In McCubbins the record shows it was not until several months after plaintiff's claim was filed, that plaintiff was advised by a doctor that her lung disease was related to her work. Id. Here, the record shows that plaintiff was not advised clearly that his work and his disease were related until after plaintiff filed his claim with the commission. Although plaintiff and one of his doctors had shared a suspicion that his work may be affecting his asthma; we hold that on this record, sharing a suspicion is not sufficient notice by a competent medical authority.
After reviewing the record, we hold that the statutory factors necessary to start the running of the two year limitation on filing of claims were not in existence until April of 1994. Plaintiff was disabled as of 20 September 1992, but was not advised by a competent medical authority that his disease was a result of his occupation until April 1994. Accordingly, we conclude that the Industrial Commission properly exercised jurisdiction over plaintiff's claim. Accordingly, the opinion and award of the Commission is hereby affirmed.
Affirmed.
Judges HUDSON and SMITH concur.
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