If insurers and employers want to deny a workers’ compensation claim because it was filed too late, they shouldn’t inadvertently pay a latent medical bill, which extends the clock under the quirks of North Carolina’s comp statutes.
And the Industrial Commission’s finding regarding the statute of limitations on claims is, in fact, reviewable by an appeals court.
Those were the take-aways from a North Carolina Supreme Court’s decision handed down late last week. In Doris Cunningham vs. Goodyear Tire and Rubber Co. and Liberty Mutual Insurance Co., the high court upheld the state appeals court, which had overruled the Industrial Commission in 2020.
The May 6 decision was written by Justice Robin Hudson, one of the few justices in any state who was a workers’ compensation lawyer before moving to the bench. This may be one of the last comp-case opinions for Hudson, who is age-limited by North Carolina statute from seeking another term, explained the claimant’s appeals attorney, Jay Gervasi of Greensboro.
“She’s a good justice. I hate to see her go,” Gervasi said.
The Cunningham case began almost a decade ago. Doris Cunningham had been working at the Goodyear plant in North Carolina since 1999. The physically demanding job required her to walk as much as eight miles a day and continually lift tires and place them into a machine to be heated and molded. Her quota for her was 1,400 tires in a 12-hour shift, the court explained.
She injured her back twice in 2011. Then in 2014, she tried to lift a tire off a truck but it was stuck. She again injured her back from her, so much so that she said she could n’t move when she woke up the next morning. She filed an accident report, was placed on light duty for six weeks, then returned to her regular job and did not miss a day of work, the justices wrote in the opinion.
Cunningham never received indemnity payments, only medical benefits for the back pain.
The Goodyear plant is unusual in that it has a medical clinic and doctor on site and regularly treats injured workers. For months after the back injury, Cunningham was treated at the plant clinic and by a physical therapist on contract with the manufacturer.
In 2015 she reported continued pain but she kept working. Two years later, Cunningham said the pain had moved into her foot. In April 2017, a nurse at the Goodyear plant clinic treated the worker but told her that her file had been closed because she had reached the statute of limitation on the claim, and no further treatment was to be provided. Cunningham then reported that just a few days before, she had again hurt her back from her trying to lift a stuck tire, the court explained.
Two months later, and again in 2019, a neurosurgeon found degeneration in two discs in her spine, which he said were probably exacerbated by the 2017 incident. Cunningham then filed another claim, but the employer and Liberty Mutual denied it, arguing that the claim was time-barred because it was not filed within two years of the 2014 injury.
The Industrial Commission agreed with the insurer that Cunningham’s claim came too late after the 2014 incident and that her 2017 claim was not supported by evidence.
Cunningham appealed to the state Court of Appeals, which reversed the commission’s findings. The appeal judges found that the 2017 injury and visit to the clinic was indeed related to the previous back injury and was not time-barred. But because the decision included a dissent by one of the judges, the defendant carrier had a right to appeal to the Supreme Court.
Liberty Mutual and Goodyear, represented by attorney Angela Craddock, argued that the Industrial Commission was the finder of fact, had reviewed the evidence, and its decision should not be disturbed.
“In a question of first impression for this Court, defendants argue the standard of review on appeal for commission findings on compliance with the statute’s timely filing requirement is a competent evidence standard of review, rather than de novo review,” the Supreme Court said. “We disagree.”
The question of whether the claim was barred by the two-year statute of limitations is a jurisdictional matter that is, in fact, subject to de novo review on appeal, the court found.
Gervasi, the claimant’s appellate attorney, explained that even though the employer/carrier did not pay indemnity benefits, it had continued to treat Cunningham through the years, often at the in-house clinic at the plant. In 2017, the insurer may not have intended to do that, especially since it already informed the nurse that the claim had expired.
That visit to the plant clinic kept the claim alive per the comp statute, even though the injury had happened more than two years earlier, he said.
“The take home for insurance companies is to pay attention to medical bills, but also don’t worry too much about this particular case because it may not have much application to other claims,” Gervasi said.
The case now goes back to the Industrial Commission.
“We conclude findings by the Commission regarding the timely-filing requirement under NCGS § 97-24 are subject to de novo review,” Justice Hudson wrote. “And the Court of Appeals properly held the Commission erred in finding that plaintiffs’ last medical treatment for her 27 May 2014 injury was in 2015, not 2017. Accordingly, we affirm the decision of the Court of Appeals, and remand for further remand to the Commission for consideration of the merits of plaintiff’s 27 May 2014 injury claim.”
The decision included a dissenting opinion by Chief Justice Paul Newby and Associate Justice Tamara Barringer.