Gantt v. Edmos Corp.

289 S.E.2d 75 (1982)

Myrlene K. GANTT (Hayes), Employee, Plaintiff, v. EDMOS CORPORATION, Employer, Employers Insurance of Wausau, Carrier, Defendants.

No. 8110IC492.

Court of Appeals of North Carolina.

March 16, 1982.

*77 Don M. Pendleton, Lincolnton, for plaintiff-appellant.

Hedrick, Feerick, Eatman, Gardner & Kincheloe by Mel J. Garofalo, Charlotte, for defendants-appellees.

CLARK, Judge.

Plaintiff contends that her attorney's letter of 20 January 1978 constituted the filing of a claim and compliance with G.S. 97-24 sufficient to vest jurisdiction of the 1976 accident in the Commission. G.S. 97-24(a) provides:

"The right to compensation under this Article shall be forever barred unless a claim be filed with the Industrial Commission within two years after the accident."

There are instances where an informal letter may serve as the filing of a claim for compensation. Shuler v. Talon Div. of Textron, 30 N.C.App. 570, 227 S.E.2d 627 (1976). One such instance occurred in the case of Cross v. Fieldcrest Mills, 19 N.C.App. 29, 198 S.E.2d 110 (1973). The letter in that case specifically requested a hearing before the Commission on the alleged injury. We held this to be "minimal compliance" with G.S. 97-24. We cannot reach the same conclusion regarding the letter in the present case. Not only does it contain no request for a hearing, it fails to assert in any way that the plaintiff is demanding compensation or that action by the Commission is necessary to settle the question. To the contrary, the letter implies that matters with regard to plaintiff's injury were being adequately handled without the involvement of the Commission. The letter does not foreclose the possibility that a claim might be filed upon receipt of the doctor's final report, but this implication does not constitute the filing of a claim. See, Montgomery v. Fire Department, 265 N.C. 553, 144 S.E.2d 586 (1965). We hold that the Commission properly declined to consider the letter of 20 January 1978 as a sufficient claim under G.S. 97-24. All other communications by plaintiff's attorney with the Commission having occurred more than two years after the accident, the Commission did not err in concluding that it lacked jurisdiction over the action because no claim had been filed within two years after the accident.

Plaintiff also assigns error to the Commission's holding that defendants were not estopped to plead G.S. 97-24 as a defense to plaintiff's claim. The record before us discloses no evidence of estoppel. There is evidence that defendants paid plaintiff's medical bills and conducted settlement negotiations before and after the expiration of the two-year time limit for filing claims, but there is no evidence that defendants lulled plaintiff into believing a claim need not be filed or that defendants expressly or impliedly agreed not to plead G.S. 97-24 in bar of any claim filed after the expiration of the time fixed therein. In *78 the absence of such evidence, there is no estoppel. Jacobs v. Manufacturing Co., 229 N.C. 660, 50 S.E.2d 738 (1948).

The order of the Commission is

Affirmed.

WHICHARD and BECTON, JJ., concur.