DocketNumber: I.C. No. 120358
Judges: OPINION AND AWARD FOR THE FULL COMMISSION BY J. RANDOLPH WARD COMMISSIONER
Filed Date: 6/1/1995
Status: Precedential
Modified Date: 7/6/2016
Plaintiff's claim for revision of an otherwise compensable scar on his forehead was denied due to his failure to file it or request a hearing within two years following the accident. N.C.G.S. §
Upon review of all of the competent evidence of record with reference to the errors assigned, and finding no good ground to reconsider the evidence, receive further evidence, rehear the parties or their representatives, or amend the award, the Full Commission AFFIRMS and ADOPTS the Opinion and Award of the Deputy Commissioner as follows:
The following were entered into by the parties at the hearing before the Deputy Commissioner as
STIPULATIONS
1. The parties were subject to and bound by the provisions of the North Carolina Workers' Compensation Act at the time of plaintiff's injuries.
2. An employer-employee relationship existed at all relevant times.
3. The employee's average weekly wage at the time of his injury was $260.00.
4. The parties agreed to stipulate, and the hearing Deputy took judicial notice of the following Industrial Commission Forms 19, 28B, 33, and 33R.
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Based upon all the competent credible evidence of record, the Full Commission makes the following additional
FINDINGS OF FACT
1. Plaintiff was employed by the defendant-employer as a machinist on March 1, 1991. On March 1, 1991, plaintiff was injured when a piece of wood struck his forehead. Plaintiff was treated at the emergency room of the local hospital and released the same day to unrestricted work.
2. Plaintiff continued to work without incident following his March 1, 1991 injury. Plaintiff's last date of employment with defendant-employer was April 15, 1993. Plaintiff began working for another employer in May 1993. Plaintiff's average weekly wage with his new employer is $720.00.
3. Plaintiff prepared and forwarded an I.C. Form 33 on April 15, 1993, requesting that his claim be assigned for hearing.
4. Defendants, in a timely fashion, raised N.C.G.S. §
5. Plaintiff alleged at the hearing that his employer, Mr. Jack Lambert, threatened to terminate him if he filed a claim for his disfigurement. Plaintiff further alleged that he quit his job due to this alleged threat, and did not file a claim until after March 1, 1993.
6. Plaintiff alleges that defendants should be estopped from raising N.C.G.S. §
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Based on the foregoing findings of fact, the Full Commission makes the following additional
CONCLUSIONS OF LAW
1. Plaintiff's claim for benefits under the North Carolina Workers' Compensation Act is barred due to plaintiff's failure to file this claim with the Industrial Commission within two years of his March 1, 1991 accident. The two-year limitation period is a condition precedent to the right of compensation, and plaintiff's failure to timely file this claim creates a jurisdictional bar to the right to receive compensation. N.C.G.S. §
2. Plaintiff was not misled or coaxed into believing that his workers' compensation claim was being taken care of, nor was plaintiff threatened by his employer with the loss of his job if he filed a workers' compensation claim. Therefore, defendants are not estopped from raising N.C.G.S. §
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Based on the foregoing findings of fact and conclusions of law, the Full Commission enters the following
AWARD
1. Plaintiff's claim for compensation pursuant to the Workers' Compensation Act must be, and the same is hereby, DENIED.
2. Each side shall pay its own costs.
S/ ________________________ J. RANDOLPH WARD COMMISSIONER
CONCURRING:
S/ ________________________ LORRIE L. DOLLAR DEPUTY COMMISSIONER
S/ ________________________ GEORGE T. GLENN, II DEPUTY COMMISSIONER
JRW/tmd 5/17/95