              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA15-953

                                  Filed: 17 May 2016

Industrial Commission, I.C. No. 13-700525

ERVIN RAINEY, Employee, Plaintiff,

             v.

CITY OF CHARLOTTE, Employer, and SELF-INSURED, Carrier, Defendants.


      Appeal by plaintiff from opinion and award filed 9 June 2015 by the North

Carolina Industrial Commission. Heard in the Court of Appeals 27 January 2016.


      The Sumwalt Law Firm, by Vernon Sumwalt, for plaintiff-employee.

      Jones, Hewson & Woolard, by Lawrence J. Goldman, for defendant-employer.


      ELMORE, Judge.


      The North Carolina Industrial Commission dismissed plaintiff’s claim for

benefits for an occupational disease, concluding that plaintiff failed to timely file his

claim pursuant to N.C. Gen. Stat. § 97-59(c). We affirm.

                                    I. Background

      Ervin Rainey (plaintiff) worked as an automotive mechanic assistant for the

City of Charlotte (defendant) for eighteen years, which required frequent strenuous

use of his arms and shoulders. On 9 May 2000, plaintiff presented to Dr. H. Yates

Dunaway, an orthopedic surgeon, for an evaluation of his right shoulder and knee.

According to his medical report, plaintiff told Dr. Dunaway that his job requires
                              RAINEY V. CITY OF CHARLOTTE

                                    Opinion of the Court



heavy use of his shoulders to break down tires.            The report also included Dr.

Dunaway’s diagnosis, “severe osteoarthritis right shoulder,” and the following

statement: “I have talked with [plaintiff] extensively about the likelihood of total

shoulder arthroplasty in the near future. He will need to consider modifying his

work.”

         Plaintiff declined surgical intervention and continued to work in his same

position as an automotive mechanic assistant for defendant. His shoulder problems

persisted, however, and at times plaintiff had to request assistance from co-workers.

On 1 December 2009, he retired due to pain in his left shoulder, which had rendered

him incapable of performing his normal job functions.

         On 1 October 2012, plaintiff presented to Dr. Roy Majors with a history of left

shoulder pain, which dated back twelve years and had become worse in recent

months. Dr. Majors diagnosed plaintiff with end-stage arthritis in his left shoulder

and referred him to Dr. Nady Hamid for surgery. Dr. Hamid performed a left total

shoulder arthroplasty on 5 November 2012 and wrote plaintiff completely out of work

after the surgery.

         Plaintiff filed a workers’ compensation claim on 29 November 2012, alleging

an occupational disease in his left shoulder. The deputy commissioner, and later the

Full Commission, concluded that plaintiff had failed to file his claim within the

requisite time period and dismissed for lack of jurisdiction. Plaintiff appeals.



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                                   Opinion of the Court



                                    II. Discussion

      The sole issue on appeal is whether plaintiff filed his claim before the

expiration of the two-year statute of limitations.        “Whether the claim for an

occupational disease was filed timely is an issue of jurisdiction for the commission.”

Terrell v. Terminix Servs., Inc., 142 N.C. App. 305, 307, 542 S.E.2d 332, 334 (2001).

Our North Carolina Supreme Court has articulated the standard of review in cases

involving challenges to the jurisdiction of the Industrial Commission:

             Except as to questions of jurisdiction, findings of fact by the
             Industrial Commission are conclusive on appeal when
             supported by competent evidence even though there is
             evidence to support contrary findings.           G.S. 97-86;
             Morrison v. Burlington Industries, 304 N.C. 1, 282 S.E.2d
             458 (1981). Findings of jurisdictional fact by the Industrial
             Commission, however, are not conclusive upon appeal even
             though supported by evidence in the record. Richards v.
             Nationwide Homes, 263 N.C. 295, 139 S.E.2d 645 (1965). A
             challenge to jurisdiction may be made at any time. Id.
             When a defendant employer challenges the jurisdiction of
             the Industrial Commission, any reviewing court, including
             the Supreme Court, has the duty to make its own
             independent findings of jurisdictional facts from its
             consideration of the entire record. Lucas v. Stores, 289
             N.C. 212, 221 S.E.2d 257 (1976).


Dowdy v. Fieldcrest Mills, Inc., 308 N.C. 701, 705, 304 S.E.2d 215, 218 (1983).

      N.C. Gen. Stat. § 97-58 (2015) establishes the time limit to file a claim for

compensation for an occupational disease. Pursuant to subsection (c), the claim must

be filed “within two years after death, disability, or disablement as the case may be.”



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                                  Opinion of the Court



N.C. Gen. Stat. § 97-58(c) (2015). Subsection (b) further provides that “[t]he time of

notice of an occupational disease shall run from the date that the employee has been

advised by competent medical authority that he has [the] same.” N.C. Gen. Stat. §

97-58(b) (2015). Our Supreme Court has construed these two subsections (b) and (c)

in pari material to “establish the factors which commence the running of the two year

period within which claims must be filed . . . .” Dowdy, 308 N.C. at 706, 304 S.E.2d

at 218. The two-year period begins to run

             when [1] an employee has suffered injury from an
             occupational disease which renders the employee incapable
             of earning the wages the employee was receiving at the
             time of the incapacity by such injury, and [2] the employee
             is informed by competent medical authority of the nature
             and work related cause of the disease. The two year period
             for filing claims for an occupational disease does not begin
             to run until all of these factors exist.


Id. at 308, 304 S.E.2d at 218–19 (citing Taylor v. Stevens & Co., 300 N.C. 94, 265

S.E.2d 144 (1980)).

A. Informed by Competent Medical Authority

      First, we must determine when plaintiff was informed by competent medical

authority of the nature and work-related cause of his left shoulder condition. The

Full Commission concluded that plaintiff had been adequately informed during his 9

May 2000 evaluation with Dr. Dunaway. Plaintiff maintains, however, that his

appointment with Dr. Dunaway was for his right shoulder only, and it was not until



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                                     Opinion of the Court



his visit with Dr. Majors on 1 October 2012 that plaintiff was informed of the

occupational disease in his left shoulder.

        During his deposition, Dr. Dunaway confirmed that it was his diagnosis of

arthritis that would have led to a total shoulder arthroplasty. He also acknowledged

that the nature of plaintiff’s work, as referenced in his report, would require use of

both shoulders. When asked about certain statements in his report concerning his

plan for treatment, Dr. Dunaway testified as follows:

              Q. You reference in the following sentence that “[plaintiff]
              will need to consider modifying his work,” correct?

              A. Correct.

              Q. And what was the basis for writing that [plaintiff] would
              need to modify his work?

              A. Recognizing he had this arthritis in his shoulder, we
              know that the heavier you use the joint, the more likely
              that arthritis is to be a problem and be symptomatic.

              Q. And would that be the case for either of [plaintiff]’s
              shoulders?

              A. I would think so.


Dr. Dunaway admitted that he had no independent recollection of the examination

apart from his report, though he believed he told plaintiff to consider modifying his

work:

              A. . . . usually when I make a sentence like that, then I
              discuss that with the patient.


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                                 Opinion of the Court




            Q. Any reason to doubt you discussed with [plaintiff] that
            he needed to modify his employment?

            A. No reason that I’m aware of.

            Q. Okay. And would you have discussed with [plaintiff] the
            reason that you felt he needed to modify his employment,
            in light of the employment activities he did?

            A. Yeah. I’m assuming. Obviously, I don’t remember this.
            But as is usually my practice, we talk about the diagnosis,
            what the potential outcomes might be, and how you might
            modify that, to alter that outcome.

As to his conversations with plaintiff regarding the cause of his shoulder problems,

Dr. Dunaway offered the following testimony:

            Q. Okay. In your medical opinion, was the occasional
            heavy use, breaking down tires, aggravating the arthritis
            in his shoulders?

            A. That would have been my opinion, I think.

            ....

            Q. And you discussed with him that his occasional heavy
            use, breaking down tires, could be contributing to that pain
            that he was having in his shoulders—

            A. Correct.

            Q. —and was contributing to the symptoms from his
            arthritis in his shoulders?

            A. Correct.




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                                 RAINEY V. CITY OF CHARLOTTE

                                         Opinion of the Court



       While we are cautious to rely solely on statements that Dr. Dunaway

“assumed” to have made or details that he “would think” to be true, see Lawson v.

Cone Mills Corp., 68 N.C. App. 402, 410, 315 S.E.2d 103, 108 (1984) (“[I]t is not

enough for the medical authority to ‘assume’ he told a worker his disease ‘may have

been’ work related.”), plaintiff’s own testimony tends to corroborate Dr. Dunaway’s

recollection of the examination.1 According to plaintiff, Dr. Dunaway evaluated and

made recommendations pertaining to both the right and left shoulders:

               Q. If we were to represent to you that Dr. Dunaway
               recommended a total shoulder replacement—

               A. Yeah, both—he said both.

               Q. —in 2000—

               A. Uh-huh.

               Q. —do you remember that conversation with the doctor?

               A. Yes, I remember that, yeah.

               ....

               Q. Tell us about the conversation you had with Dr.
               Dunaway about you’ll eventually need a total shoulder
               replacement.


       1  We do not treat plaintiff’s own adverse testimony as a “judicial admission,” as argued by
defendant, but as an “evidentiary admission.” The difference being that under the latter approach,
the testimony is “admissible in evidence against such party, but . . . may be rebutted, denied, or
explained away and is in no sense conclusive.” Woods v. Smith, 297 N.C. 363, 373–74, 255 S.E.2d 174,
181 (1979); cf. Cogdill v. Scates, 290 N.C. 31, 44, 224 S.E.2d 604, 611 (1976) (“If at the close of the
evidence, a plaintiff’s own testimony has unequivocally repudiated the material allegations of his
complaint and his testimony has shown no additional grounds for recovery, . . . the defendant’s motion
for directed verdict should be allowed.” (emphasis added)).

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                           RAINEY V. CITY OF CHARLOTTE

                                 Opinion of the Court



            A. Well, when I went there and after he put me in this
            machine and—you know, and checked me out, then he told
            me—he said, “Well, you might as well get ready to retire
            from the City, because you’re going to have—both of your
            shoulders going [sic] to have to be replaced.”

On cross-examination, plaintiff again stated that Dr. Dunaway had recommended

replacement surgery for both shoulders:

            Q. And the—you indicated that you saw Dr. Dunaway, and
            I think we’ve got his medical record, and I think Mr.
            Sumwalt indicated that was in the year 2000.

            ....

            Q. The—he was recommending you need shoulder
            replacement surgery to your right shoulder, wasn’t he?

            A. No, he didn’t speculate—he said both shoulders.


Plaintiff further testified that Dr. Dunaway told him that his job was causing his

shoulder problems:

            Q. Just so that I’m clear—

                     THE WITNESS: Okay.

            Q. —when you and I were talking earlier—

            A. Uh-huh.

            Q. —you mentioned a doctor, sometime while you were
            employed by the City, who basically told you your job duties
            were hurting both your shoulders.

            A. He might have did, but I had to keep on working. I
            couldn’t stop.


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                    Opinion of the Court




Q. And I don’t want to know “he might of did”—did he?

A. Yeah, he did.

....

Q. And did—did Dr. Dunaway indicate that if you kept
doing your job, you’re going to need shoulder replacement
surgery?

A. Yes.

Q. And that would indicate to you that your job is—is going
to cause shoulder replacement—

A. Yes.

Q. —shoulder surgery? So when Dr. Dunaway told you
that, was that not an indication to you that your job was
the cause of your shoulder problems?

A. Oh, yeah. He—yeah, he said, yeah.

Q. So it wasn’t—it wasn’t just Dr. Hamid. It was—

A. Yeah.

Q. —Dr. Dunaway—

A. Yeah.

Q. —years before?

A. Yeah, but I couldn’t—I couldn’t stop, though. I had to
work.

Q. Understood. I just want to make sure that I—

A. Yes.


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                               RAINEY V. CITY OF CHARLOTTE

                                    Opinion of the Court




              Q. —understand it was not just Dr. Hamid—

              A. Oh, okay.

              Q. —it was Dr. Dunaway, too.

              A. Okay.

              Q. Agreed?

              A. Yes, right.


Based on the foregoing, we conclude that plaintiff was informed by Dr. Dunaway on

9 May 2000 of the nature and work-related cause of his left shoulder injury.

B. Time of Disability

       Next, we must determine when plaintiff became “disabled”—that is, when “an

employee has suffered injury from an occupational disease which renders the

employee incapable of earning the wages the employee was receiving at the time of the

incapacity by such injury.” Dowdy, 308 N.C. at 706, 304 S.E.2d at 218 (emphasis

added) (citation omitted). The Full Commission concluded that plaintiff was disabled

on 1 December 2009, the date of his retirement. While neither party disputes that

plaintiff has had no meaningful employment since he retired, plaintiff asserts that

“retirement is irrelevant to any analysis of disability,” and that he could not have

been disabled before 5 November 2012—the date that Dr. Hamid imposed medical

restrictions on plaintiff’s ability to work.



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                                   Opinion of the Court



      We reject plaintiff’s argument that medical restrictions are the only competent

evidence of disability, or as he states, “when there are no medical restrictions ‘because

of’ a compensable injury or disease, ‘disability’ does not exist as a matter of law.” On

the contrary, “[t]his Court has previously held that an employee’s own testimony as

to pain and ability to work is competent evidence as to the employee’s ability to work.”

Byrd v. Ecofibers, Inc., 182 N.C. App. 728, 731, 645 S.E.2d 80, 82 (2007) (citing Boles

v. U.S. Air, Inc., 148 N.C. App. 493, 499, 560 S.E.2d 809, 813 (2002); Matthews v.

Petroleum Tank Serv., Inc., 108 N.C. App. 259, 265, 423 S.E.2d 532, 536 (1992); Niple

v. Seawell Realty & Indus. Co., 88 N.C. App. 136, 139, 362 S.E.2d 572, 574

(1987), disc. review denied, 321 N.C. 744, 365 S.E.2d 903 (1988)).

      Moreover, unlike those cases cited by plaintiff, in which retirement was wholly

unrelated to the occupational disease, e.g., Stroud v. Caswell Ctr., 124 N.C. App. 653,

654–55, 478 S.E.2d 234, 235 (1996), here plaintiff testified repeatedly that he stopped

working for defendant because of the pain in his left shoulder:

             Q. Okay. What went into your decision to retire from the
             City?

             A. Well, I was up under the truck—most of the time, after
             I got through changing tires, I used to go up under the fire
             truck and I had to put a bottle jack under there and jack it
             up—you know, crawl up under there, and when I laid on
             my shoulder, you know—I mean, it hurt so bad, I said,
             “Look, I got to quit.” That’s why I retired. I said, “Man, I
             got to get out of here. I cannot make it,” you know. I had
             to crawl back from under the truck, and that’s why I
             retired.


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                                  Opinion of the Court




             Q. And why, specifically, did that bother you—what about
             that activity?

             A. When I—when I turned on this side (indicating), this
             shoulder right here (indicating), I couldn’t—you know, I
             couldn’t hardly—I couldn’t use this shoulder, even when—

             Q. And you’re pointing to your left shoulder?

             A. Yeah, my left shoulder right here.


We agree with the Full Commission, therefore, that on 1 December 2009, plaintiff

was disabled within the meaning of the Worker’s Compensation Act.

                                  III. Conclusion

      We conclude that, as of 1 December 2009, plaintiff had suffered injury from an

occupational disease which rendered him incapable of earning the wages he was

receiving at the time of his incapacity, and had been informed by competent medical

authority of the nature and work-related cause of the disease. Because he did not file

his worker’s compensation claim until 5 November 2012, plaintiff’s claim was barred

by the two-year statute of limitations under N.C. Gen. Stat. § 97-58(c). We affirm the

Full Commission’s dismissal for lack of jurisdiction.

      AFFIRMED.

      Judges STROUD and DIETZ concur.




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