Workers’ Compensation – Jurisdiction — Occupational Disease – Diagnosis – Statute of Limitations – Failure to Prosecute

Lentz v. Phil’s Toy Store (Lawyers Weekly No. 13-07-0775, 14 pp.) (Wanda G. Bryant, J.) Appealed from the Industrial Commission. N.C. App.

Holding: It is true that the statute of limitations on an occupational disease claim does not start to run against a plaintiff until he is advised by competent medical authority of the work-related cause of his disease. Nevertheless, the Industrial Commission has subject matter jurisdiction over a plaintiff’s occupational disease claim even if he files it before he has obtained such advice.

We affirm the Commission’s dismissal of plaintiff’s claim with prejudice.

The record shows that plaintiff deliberately or unreasonably failed to prosecute his claim, justifying the Commission’s dismissal of the claim. Plaintiff’s claim was first filed in September of 2006, and plaintiff failed to appear at the two hearings that he requested, whereas defendants were present and prepared to litigate the claim on both occasions. Plaintiff has had over six years since filing his claim to find competent medical authority to provide information to support his claim. Plaintiff’s failure to appear at hearings, failure to obtain competent medical authority regarding his claim, and failure to prosecute his claim for six years is sufficient competent evidence to support the findings of fact and the conclusions of law of the Commission that plaintiff has unreasonably delayed the matter.

Defendants have spent considerable time and resources in defense of this claim, and defendants have been prejudiced by plaintiff’s unreasonable delay.

Defendants are entitled to a resolution in this case; defendants have been and will continue to be prejudiced if this claim, which they have been defending for nearly seven years, is allowed to continue indefinitely. Therefore, no sanction other than dismissal will suffice.

Affirmed.