Joyner v. J. P. Stevens & Co.

HEDRICK, Judge. This appeal raises the single question of whether plaintiff is entitled to benefits pursuant to G.S. 97-38, which in pertinent part provides: “If death results proximately from the accident and within two years thereafter, or while total disability still continues and within six years after the accident, the employer shall pay . . . compensation. . . .” Resolution of this question depends upon when the “accident” occurred that ultimately caused the deceased employee’s death. Because occupational diseases usually develop over a prolonged period of exposure to hazardous conditions rather than from a single event, G.S. 97-52 defines “accident” as “[disablement or death of an employee resulting from an occupational disease. . . .” See Booker v. Medical Center, 297 N.C. 458, 482-83, 256 S.E. 2d 189, 204-05 (1979). G.S. 97-54 provides that “disablement” is equivalent to “disability” as defined in G.S. 97-2(9), which is “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” Thus an “accident” within the meaning of G.S. 97-38 occurred when the deceased employee’s disability due to chronic obstructive lung disease began. Plaintiff contends that her husband’s decline from partial disability to total disability status on 10 October 1980 constituted an “accident” within the meaning of G.S. 97-38, as the Commission concluded. His 19 March 1982 death therefore would have occurred within two years of the accident, entitling her to G.S. 97-38 benefits. Plaintiff notes that the policy of liberally construing workers’ compensation statutes to allow coverage supports her contention. We nonetheless believe the deceased employee’s “accident” occurred on 23 December 1975. That is the date he officially lost [627] wage earning capacity due to his occupational disease and became disabled. Clearly, he suffered an “accident” on that date. G.S. 97-38 contemplates only one accident leading to death when it states “the accident.” Death benefits accrue only if death occurs within the maximum statutorily set time after “the accident.” It would defy legislative intent to hold that subsequent changes in disability status arising from the same occupational disease created new “accidents,” thereby renewing the time limit for claiming G.S. 97-38 benefits. As defendants contend, the rule limiting occupational disease victims to a single claim for purposes of the statute of limitations in G.S. 97-58(c) applies by analogy to allow occupational disease victims to claim only one “accident” under G.S. 97-38. In rejecting a claimant’s argument that the limitations period began to run from the time when his disability status changed from partial to total, the Supreme Court stated, We did not in any way indicate in Taylor [v. Stevens & Co., 300 N.C. 94, 265 S.E. 2d 144 (1980)] that only total and permanent disability would trigger the running of the two year period or that a separate, independent and additional two year period would commence under the statute if the employee’s disability from the occupational disease evolved from permanent partial disability into permanent total disability. Dowdy v. Fieldcrest Mills, 308 N.C. 701, 714, 304 S.E. 2d 215, 223 (1983). Thus the onset of plaintiffs husband’s disability on 23 December 1975 was the only “accident” from which the G.S. 97-38 time limits for benefits ran. Because plaintiffs husband died in 1982, over six years after his “accident” within the meaning of G.S. 97-38, plaintiffs claim for benefits under G.S. 97-38 is barred. Our holding is a harsh but necessary result of the statutory scheme. [628] Booker, supra, 297 N.C. at 483-84, 256 S.E. 2d at 205. The legislature has amended G.S. 97-38 to cover occupational disease deaths where the employee had total disability and died within two years of the final determination of his total disability. This amendment became effective on 15 July 1983 and is of no avail to plaintiff since her claim is controlled by the version of G.S. 97-38 in force at the time of her husband’s death. 1983 N.C. Sess. Laws, ch. 772, s. 2. [627] We recognize that application of G.S. 97-38 may sometimes have the effect of barring an otherwise valid and provable claim simply because the employee did not die within the requisite period of time. . . . The remedy for any inequities arising from the statute, however, lies not with the courts but with the legislature. [628] Reversed and remanded. Judges Webb and Hill concur.