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Hunter v. Perquimans County Board of Education8/1/2000
Appeal by plaintiff from an opinion and award entered 15 July 1999 by the North Carolina Industrial Commission. Heard in the Court of Appeals 6 June 2000.
Plaintiff-appellant, Patricia Hunter ("plaintiff"), appeals from the 15 July 1999 opinion and award of the North Carolina Industrial Commission ("Commission") denying her workers' compensation claim against Perquimans County Board of Education and Self-Insured, North Carolina School Board Association Insurance Trust, Agency (collectively "defendants") for additional compensation for an alleged change in condition. The Commission ruled that the plaintiff's claim for a change of condition was barred by the two-year limitations period set out in N.C. Gen. Stat. § 97-47. Plaintiff appeals to this Court arguing that her claim for additional compensation was timely filed. Alternatively, plaintiff argues that even if her claim was not timely filed, defendants were estopped from asserting the limitation period as an affirmative defense because they failed to: (1) file a Form 28B Notice of Final Payment ("Form 28B") with the Commission or (2) provide the plaintiff with a Form 28B after mailing the last payment of compensation. We find both arguments unpersuasive; therefore, we affirm the Commission's award.
The facts pertinent to this appeal are as follows: On 28 February 1990 plaintiff sustained a back injury arising out of and in the course of her employment with defendants. Plaintiff was compensated for her injury by defendants pursuant to a series of awards by the Commission. Following the 28 May 1992 final agreement and award by the Commission, defendants filed a Form 28B notice of final compensation with the Commission and provided plaintiff with a copy.
In 1993, plaintiff's doctor, Dr. Lorenzo Archer, having determined that plaintiff's condition had significantly deteriorated, increased plaintiff's permanent partial disability rating from thirty percent to forty percent. As a result, plaintiff and defendants entered into a Form 26 agreement for compensation which was approved by the Commission on 4 February 1994. The agreement provided for compensation to plaintiff at a rate of $119.05 per week. Plaintiff's compensation payments were scheduled to commence on 22 September 1993 and continue for thirty weeks. On 24 January 1994, plaintiff applied for a lump sum payment of the compensation provided for in the Form 26 agreement. On 3 March 1994 in response to plaintiff's application, the defendants issued a check to plaintiff for the sum of her benefits; however, the lump sum payment application was not approved by the Commission until 20 April 1994. Defendants did not file a Form 28B notice of final compensation at any time after the lump sum payment was received by the plaintiff in early March 1994. More than two years later on 21 March 1996, plaintiff received an unsatisfactory report from Dr. Archer. Plaintiff then filed a claim on 3 April 1996 for additional compensation for a change in condition pursuant to N.C. Gen. Stat. § 97-47.
After conducting a hearing, Deputy Commissioner Kim Cramer found that plaintiff was no longer capable of gainful employment, had not earned any significant wages since 1994, and that the "final check was [mailed] to the Plaintiff in March, 1994" but the defendants failed to file a Form 28B to close out the case. Therefore, the deputy commissioner concluded that even though the plaintiff's claim was not filed within two years of receipt of her last compensation payment, the two-year limitation period of N.C. Gen. Stat. § 97-47 did not bar the plaintiff's claim because the claim was filed within two years of the date that the Commission approved the lump sum payment award. Defendants appeale
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