Jack WESTON, Sr., Employee,
v.
SEARS ROEBUCK & CO., Self-Insured.
No. 8210IC1170.
Court of Appeals of North Carolina.
December 6, 1983.*275 James H. Toms, Hendersonville, for plaintiff-appellee.
Prince, Youngblood, Massagee & Creekman by James E. Creekman, Hendersonville, for defendant-appellant.
EAGLES, Judge.
We note at the outset that the only question properly before this Court is whether the Industrial Commission had jurisdiction to consider plaintiff's claim for workers compensation. By order of the full Commission, the initial hearing was limited to defendant's motion to dismiss for lack of jurisdiction. Given the limited scope of the hearing, it was patently improper for the deputy commissioner to find and conclude that plaintiff had suffered an injury arising from his employment with defendant. It was similarly improper for the full Commission, on appeal from the Opinion and Award of the deputy commissioner, to find and conclude that plaintiff had a compensable injury, regardless of its ruling with respect to jurisdiction. To hold otherwise would deny both parties their rights under the law. We therefore express no opinion as to the substantive merits of plaintiff's claim but limit our opinion to the question of whether the Industrial Commission had jurisdiction to consider the claim.
General Statute 97-24(a) reads:
The right to compensation under this article shall be forever barred unless a claim be filed with the Industrial Commission within two years after the accident.
It is well established in North Carolina law that timely filing of a claim for compensation is a condition precedent to the right to compensation. Montgomery v. Horneytown Fire Dept., 265 N.C. 553, 144 S.E.2d 586 (1965); Barham v. Kayser-Roth Hosiery Co., 15 N.C.App. 519, 190 S.E.2d 306 (1972). Under this construction, failure to file a claim in a timely fashion works a jurisdictional bar to the right to receive compensation. McCrater v. Engineering Co., 248 N.C. 707, 104 S.E.2d 858 (1958); Barham v. Kayser-Roth Hosiery Co., supra; see also Polythress v. J.P. Stevens, 54 N.C.App. 376, 283 S.E.2d 573 (1981), disc. review denied, 305 N.C. 153, 289 S.E.2d 380 (1982) (construing *276 a similar provision regarding occupational diseases). The general rule is that a jurisdictional bar cannot be overcome by consent of the parties, waiver or estoppel. Hart v. Motors, 244 N.C. 84, 92 S.E.2d 673 (1956); Barham v. Kayser-Roth Hosiery Co., supra; Clodfelter v. Furniture Co., 38 N.C.App. 45, 247 S.E.2d 263 (1978).
Nevertheless, plaintiff argues that, based on the facts of this case, the defendant is equitably estopped from asserting lack of jurisdiction as grounds for dismissing the case. Plaintiff bases this argument on the theory that defendant's actions amounted to false representations or concealment of material facts with the object of misleading him in order to avoid his filing of a claim for workers compensation. In so doing, plaintiff attempts to bring himself within the fact situation contemplated by Polythress v. J.P. Stevens, Clodfelter v. Furniture Co., and Barham v. Kayser-Roth Hosiery Co., all supra. Those cases suggest that the jurisdictional bar created by a failure to file a timely claim may be overcome on a theory of equitable estoppel where facts indicate intentional deception of the employee by the employer.
Hart v. Motors, supra, is cited in the briefs of both parties and in subsequent cases for its articulation of the general rule with regard to cases like the one before us. See, e.g., Clodfelter v. Furniture Co., Barham v. Kayser-Roth Hosiery Co., both supra. In Hart, plaintiff employee was compensated for his injury by defendant employer under a consent decree approved by the Industrial Commission. Plaintiff moved to set aside the decree on jurisdictional grounds, asserting that he was not an employee of defendant at the time of the injury. In considering that motion, the Supreme Court said:
The North Carolina Industrial Commission has a special or limited jurisdiction created by statute, and confined to its terms. Viewed as a court, it is one of limited jurisdiction and it is a universal rule of law that parties cannot, by consent, give a court, as such, jurisdiction over subject matter of which it would otherwise not have jurisdiction. Jurisdiction in this sense cannot be obtained by consent of the parties, waiver, or estoppel. [Citations.]
Hart v. Motors, supra 244 N.C. at 88, 92 S.E.2d at 676.
Hart presents a factual situation and procedural posture that distinguish it from the present case but the rule pronounced is just as applicable. On the facts presented in Hart, the court found no estoppel. In so doing, the court expressly left open the question of "whether under all circumstances a party to a proceeding of the Industrial Commission can, or cannot, be estopped to attack its jurisdiction over the subject matter. . . ." Id. at 89, 92 S.E.2d at 677.
In this case, we find that the facts do not support the conclusion that defendant was equitably estopped from challenging the Industrial Commission's jurisdiction to hear plaintiff's claim. Plaintiff's reliance on defendant's promise to "take care of [his injury]" may have been reasonable in light of the circumstances at the time. However, the reasonableness of this reliance becomes suspect after nine years pass from the time when the promise was made with no indication that the promise will be honored. This alone would be enough to dissipate the effect of the alleged misrepresentation by defendant. In this respect, the findings made on review by the full Commission do not support the conclusions drawn.
Ordinarily, the findings of fact of the Industrial Commission are binding on appeal if supported by any competent evidence. Gallimore v. Marilyn's Shoes, 292 N.C. 399, 233 S.E.2d 529 (1977); Porterfield v. RPC Corp., 47 N.C.App. 140, 266 S.E.2d 760 (1980). However, where a party challenges the jurisdiction of the Commission, the findings of fact are not conclusive and the reviewing court may consider all of the evidence in the record and make its own findings of fact. Richards v. Nationwide Homes, 263 N.C. 295, 139 S.E.2d 645 (1965); Askew v. Leonard Tire Co., 264 N.C. 168, 141 S.E.2d 280 (1965); Lucas v. Li'l Gen. Stores, 289 N.C. 212, 221 S.E.2d 257 (1976). *277 With this in mind, we note that the deputy commissioner and the full Commission found that plaintiff, after leaving his job with defendant, consulted an attorney regarding compensation for his injury. This finding was based on uncontradicted testimony elicited from plaintiff on cross-examination by defendant. Although not found as a fact by either the deputy commissioner or the full Commission, the same uncontradicted evidence also shows that plaintiff consulted an attorney as early as June of 1972, three months after leaving his job which was approximately five months prior to the deadline for filing his claim. With these strong indications of the verity of the testimony and its obvious relevance, it is not clear why it was disregarded. This evidence affirmatively demonstrates that plaintiff was no longer relying on whatever promises or representations had been made to him by defendant. The additional time, if any, to which plaintiff may have been entitled by virtue of his reliance on defendant's promise ran out long before he filed his claim for compensation, nearly ten and a half years from the date of his injury.
Finally, in its Opinion and Award, the Commission cites the cases of Watkins v. Central Motor Lines, 10 N.C.App. 486, 179 S.E.2d 130, rev'd on other grounds, 279 N.C. 132, 181 S.E.2d 588 (1971) and Ammons v. Sneeden's Sons, 257 N.C. 785, 127 S.E.2d 575 (1962) in support of its conclusions regarding jurisdiction. Both of these cases involve G.S. 97-47, dealing with time limits for filing claims based on a change of condition. The time limit in G.S. 97-47 has been construed to be a statute of limitations and not a condition precedent to jurisdiction. Gragg v. Harris and Son, 54 N.C.App. 607, 284 S.E.2d 183 (1981). Clearly, there is no analogy to be drawn between G.S. 97-47 and G.S. 97-24, the statute involved here. The Commission's interpretation of Watkins and Ammons is incorrect and defendant's reliance on those cases is misplaced.
We conclude that the Industrial Commission had no jurisdiction to consider plaintiff's claim and defendant's motion to dismiss should have been granted. Accordingly, the Opinion and Award of the full Commission must be reversed with instructions to remand the cause to the deputy commissioner for entry of an order granting defendant's motion.
Reversed and remanded.
ARNOLD and PHILLIPS, JJ., concur.