Cook v. Southern Bonded, Inc.

JOHNSON, Judge. We note at the outset that although plaintiff did not properly note exceptions and assignments of error in accordance with Rule 10, N.C. Rules App. P., plaintiff did present for review by properly raising in her brief the question whether the judgment appealed from is supported by the findings of fact and conclusions of law as provided in Rule 10(a), N.C. Rules App. P. Our scope of review will be limited accordingly. The sole question presented by plaintiff for review is whether the Commission erred in dismissing her claim for additional benefits for the reason that her request for review was untimely. One who has received an award of compensation under the Workers’ Compensation Act may move the Industrial Commission to review the prior award on the grounds of a change in condition under G.S. 97-47. However, G.S. 97-47 has an express time limitation, as follows: [N]o such review shall be made after two years from the date of the last payment of compensation pursuant to an award under this Article, except that in cases in which only medical or other treatment bills are paid, no such review shall be made after 12 months from the date of the last payment. . . . G.S. 97-47. In the order dismissing plaintiffs request for a review, Deputy Commissioner Bryant made the following findings of fact: 1. Plaintiff was last paid compensation in this matter by check dated April 8, 1982 and that was negotiated at least as of June 3, 1982. 2. Plaintiff filed to reopen this claim on July 27, 1984 and the same was more than two years after her last payment of compensation. Upon review, the Full Commission adopted “as its own” the deputy commissioner’s opinion. As stated above, because plaintiff *280 did not except to these findings they are conclusive on appeal. The last payment of compensation within the meaning of G.S. 97-47 is the date the last check was delivered to and accepted by the employee. Baldwin v. Amazon Cotton Mills, 253 N.C. 740, 744, 117 S.E. 2d 718, 721 (1961). The findings support the conclusion of law that plaintiffs request to reopen her claim was more than two years after plaintiff received the last payment of compensation. This conclusion in turn supports an order denying plaintiffs request to review her prior award. Plaintiff contends that defendants are estopped from claiming the lapse of time as a bar to plaintiffs claim for additional compensation because (1) plaintiff did not recall receiving a Form 28B with the check for the amount of compensation and (2) defendants’ appeal, pending until dismissed by order of the Full Commission on 28 June 1982, prevented the limitations period from running at a date earlier than the date of dismissal. We find both arguments unpersuasive. One, a Form 28B, dated 8 April 1982, was received by the Industrial Commission on 19 April 1982 and placed in the Industrial Commission’s file. Mrs. Cook testified that she did not know whether the check was accompanied by a Form 28B; that her attorney received the compensation check in the mail; and that she went to his home to pick up the check. Plaintiffs contention is contrary to the express provisions of G.S. 97-47. Willis v. Davis Industries, 280 N.C. 709, 714, 186 S.E. 2d 913, 916 (1972). The statute expressly provides that the time limitation commences to run from the date on which he received the last payment of compensation, not from the date on which the employee received a Form 28B. See id. at 714-15, 186 S.E. 2d at 916. Two, plaintiff did not except to an omitted finding of fact that plaintiff did not receive a Form 28B. As stated previously, the findings in the record before us cannot be challenged on this appeal. Rule 10, N.C. Rules App. P. Plaintiffs second contention is also contrary to the express provisions of the statute. For the same reasons that the time limitation does not commence to run upon the employee’s receipt of a Form 28B, posited above, it does not commence to run upon the dismissal of an appeal. After reviewing the entire record we find no equitable grounds that would allow plaintiff to circumvent the clear language of the statute. *281 Plaintiff is correct in stating that the order dismissing plaintiff s claim erroneously stated as the basis for its dismissal that the Industrial Commission lacked subject matter jurisdiction. In Pennington v. Flame Refractories, Inc., 53 N.C. App. 584, 281 S.E. 2d 463 (1981), this Court stated, “This two year limitation is not jurisdictional. It merely provides a defense . . . which the employer may assert.” Id. at 587-88, 281 S.E. 2d at 466. However, the error is not prejudicial. It is a familiar rule in appellate procedure that the appellant must not only show error, but also that the error is material and prejudicial, amounting to a denial of a substantial right and that a different result would have likely ensued. Sisson v. Royster, 228 N.C. 298, 301, 45 S.E. 2d 351, 354 (1947). Because no other result could ensue other than a denial of plaintiffs request for review for lack of timeliness, the order of the Full Commission is Affirmed. Judges BECTON and COZORT concur.