holding that where an employee’s compensation was suspended for her unjustified refusal to return to suitable employment under section 97-32, the time-bar of section 97-47 ran upon last payment of compensation
How later courts described this case
- holding that where an employee’s compensation was suspended for her unjustified refusal to return to suitable employment under section 97-32, the time-bar of section 97-47 ran upon last payment of compensation
Written by the judges who cited it.
The opinion
LEVINSON, Judge
concurring in part and dissenting in part.
I concur in the majority opinion except to the extent it concludes that the two year limitations period contained in G.S. § 97-47 has expired. This appeal primarily concerns the interpretation and application of this statute. Before the Industrial Commission, plaintiff alleged a change of condition primarily because she sought additional medical compensation. The majority opinion, instead, frames the main issue on appeal as whether plaintiff can compel defendants to pay the ten percent rating.
On appeal, plaintiff contends that because defendants have not yet paid her the ten percent permanent partial disability, the G.S. § 97-47 two year limitations period to file for a change of condition has not expired. This argument has merit.
Here, the 31 August 2001 opinion and award, expressly citing G.S. § 97-32, provided that plaintiff was “not entitled to compensation under the provisions of the North Carolina Workers’ Compensation Act until [her refusal to accept employment] ceases.” Suspension under G.S. § 97-32 is temporary, and the last potential payment could not have occurred because the ten percent rating was payable if the suspension ended. In short, the limitations period in G.S. § 97-47 had not yet begun to expire by virtue of any compensation payments made in 1999, as the majority concludes. In my view, the reasoning of the majority opinion does not take the G.S. § 97-32 suspension into account.