Rainey v. City of Charlotte (Lawyers Weekly No. 011-178-16, 12 pp.) (Rick Elmore, J.) Appealed from the Industrial Commission. N.C. App.
Holding: A doctor told plaintiff in 2000 that his shoulder pain came from his job, that he should modify his work, and that he would eventually need shoulder replacements. Plaintiff kept working until 2009, when he retired because of shoulder pain. Thus, plaintiff’s 2012 workers’ compensation claim was filed outside the two-year statute of limitations.
We affirm the Industrial Commission’s dismissal of plaintiff’s claim.
The two-year statute of limitations for occupational disease claims 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.
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, this 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, and plaintiff here testified repeatedly that he stopped working for defendant because of the pain in his left shoulder.