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  "name": "JAMES O. PENNINGTON, Employee, Plaintiff Appellant v. FLAME REFRACTORIES, INC., Employer, and GENERAL ACCIDENT GROUP, Carrier, Defendant Appellees",
  "name_abbreviation": "Pennington v. Flame Refractories, Inc.",
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    "judges": [
      "Chief Judge MORRIS and Judge MARTIN (Robert M.) concur."
    ],
    "parties": [
      "JAMES O. PENNINGTON, Employee, Plaintiff Appellant v. FLAME REFRACTORIES, INC., Employer, and GENERAL ACCIDENT GROUP, Carrier, Defendant Appellees"
    ],
    "opinions": [
      {
        "text": "WHICHARD, Judge.\nG.S. 97-47 provides that \u201cupon the application of any party in interest on the grounds of a change in condition,\u201d the Industrial Commission may review any award of workers\u2019 compensation and, inter alia, increase the award. This review must occur, however, within two years from the last payment under the original award. The issue here is whether claimant made timely \u201capplication\u201d for review of his award. We hold that he did.\nClaimant received compensation for an employment-related back injury from 14 January 1976 through 13 April 1976. On 1 November 1977 he had surgery for removal of portions of two discs. His wife immediately advised defendant-carrier that this surgery was related to the injury. Telephone conversations and correspondence with defendant-carrier ensued, but did not lead to further compensation or to \u201cany satisfaction ... as to what was going to happen.\u201d\nOn 30 January 1978 claimant\u2019s wife telephoned the Industrial Commission. She advised an employee that claimant was not getting compensation and asked the employee for help. She told the employee she \u201cwanted her to do whatever had to be done to get [defendant-carrier] to take back up the compensation.\u201d The employee told her to write a letter regarding their conversation and promised that she \u201cwould help [her].\u201d Claimant\u2019s wife prepared the requested letter for claimant\u2019s signature \u201csometime around the time when the phone call was made.\u201d Her file copy was dated 31 January 1978. She \u201cput [the letter] in the envelope and put it in the mail box for the postman to pick . . . up.\u201d The letter was not returned to her. The record does not establish its receipt by the commission.\nOn 13 February 1978 counsel retained by claimant advised defendant-carrier of his representation. Defendant-carrier advised counsel on 17 February 1978 of receipt of his letter. On or about 13 April 1978 the two year period from receipt of claimant\u2019s last compensation payment expired. Claimant\u2019s counsel was advised by letter from defendant-carrier dated 9 June 1978 that \u201cthe statute of limitations ha[d] expired\u201d on review of the claim.\nThe commission, by adoption of the opinion and award of the hearing commissioner, made the following finding of fact:\n[Claimant\u2019s wife] called the Industrial Commission at 919, 733-5020 and talked to [a Commission employee] about the circumstances of claimant\u2019s most recent hospitalization. [The employee] advised [claimant\u2019s wife] to correspond with the Commission in writing about the circumstances of her husband\u2019s claim. This conversation took place on 30 January 1978. [Claimant\u2019s wife] typed a one-page letter dated 31 January 1978 directed to the Industrial Commission for her husband\u2019s signature. The address on the letter, while not correct in all respects, contained more than sufficient information for it to be delivered to the Industrial Commission. The letter was on a date uncertain placed in the custody of the United States Postal Service in a properly addressed envelope.\nThis finding is supported by competent evidence and is conclusive on appeal. Hollman v. City of Raleigh, 273 N.C. 240, 159 S.E. 2d 874 (1968). The commission also found as a fact the following: \u201cClaimant did not on this record timely file with the Commission application to review the 12 March 1976 Award.\u201d While denominated a finding of fact, this is in reality a conclusion of law. \u201cA conclusion of law is made no less reviewable by virtue of the fact that it is denominated a finding of fact.\u201d Walston v. Burlington Industries, 49 N.C. App. 301, 307, 271 S.E. 2d 516, 520 (1980). \u201c[Conclusions of law entered by the Commission are not binding on this Court, and are reviewable here for purposes of determining their evidentiary basis and the reasonableness of the legal inferences made therefrom.\u201d Id.\nThe conclusive finding quoted establishes that on 30 January 1978 claimant\u2019s wife talked to a commission employee; that the employee advised her to write the commission about her husband\u2019s claim; and that claimant\u2019s wife typed and mailed a letter to the commission, sufficiently addressed, dated 31 January 1978. \u201cThere is a presumption that mail, with postage prepaid and correctly addressed, will be received.\u201d State v. Teasley, 9 N.C. App. 477, 486, 176 S.E. 2d 838, 844 cert. denied, 277 N.C. 459, 177 S.E. 2d 900 (1970) (citing Petroleum Corp. v. Oil Co., 255 N.C. 167, 120 S.E. 2d 594 (1961)). Evidence that a letter was mailed permits an inference that it \u201cwas in a mailable condition, properly addressed . . . , and stamped.\u201d Mill Co. v. Webb, 164 N.C. 87, 90, 80 S.E. 232, 234 (1913). While the commission correctly found the letter was mailed \u201con a date uncertain,\u201d there being no evidence of the precise mailing date, the evidence permits the inference that it was mailed in close proximity to 31 January 1978, the date it was prepared.\nTestimony by claimant\u2019s attorney indicates that he first discussed the claim with claimant\u2019s wife in February 1978; that she sent him copies of \u201cwhat she deemed to be pertinent\u201d from her file; that a copy of the 31 January 1978 letter was in these materials; and that this copy was in his \u201cfile dated February 1978.\u201d It is unreasonable to infer that claimant\u2019s wife mailed the copy to claimant\u2019s attorney without having mailed the original to the commission. Because all the evidence indicates claimant and his wife were striving to secure benefits as soon as possible, it is unreasonable to infer that claimant\u2019s wife delayed at all in mailing the letter; and it is especially unreasonable to infer that she delayed mailing it until it would not have been received in due course of the mail by 13 April 1978, the date the two year limitation expired. The reasonable inference of nondelay in mailing the letter, together with the presumption of delivery in due course of the mail, supports a conclusion that claimant timely did all G.S. 97-47 required to secure review of his claim.\nDefendants rely on the following from Supply Co. v. Motor Lodge:\nThe stipulation [that a notice was mailed] established prima facie that the notice was received ... in regular course of mail. Trust Co. v. Bank, 166 N.C. 122, 81 S.E. 1074; Bragaw v. Supreme Lodge, 124 N.C. 154, 32 S.E. 544. However, no presumption as to time of receipt of the notice arose absent proof of (1) where and when it was mailed, and (2) frequency or usual course and time of the mails between the mailing place and place of purported receipt of letter.\n277 N.C. 312, 321, 177 S.E. 2d 392, 397 (1970) (emphasis in original). The portion of that opinion containing this statement commences \u201c[assuming, without deciding\u201d; thus, the statement is clearly dictum. Id., at 320, 177 S.E. 2d at 397. Further, we believe the requirements are satisfied. As to the first, the reasonable inference from the evidence is that the letter was mailed from claimant\u2019s residence in Maryland in close proximity to its preparation on 31 January 1978. As to the second, courts take judicial notice of subjects and facts of common and general knowledge. Smith v. Kinston, 249 N.C. 160, 105 S.E. 2d 648 (1958). It is common and general knowledge that in due course of the mail a letter mailed in Maryland, on or about 31 January 1978, would reach Raleigh, North Carolina, prior to 13 April 1978, the date on which the limitation expired.\nThis two year limitation is not jurisdictional. It merely provides a defense (formerly a plea in bar) which the employer may assert. Watkins v. Motor Lines, 279 N.C. 132, 181 S.E. 2d 588 (1971); Ammons v. Sneeden\u2019s Sons, Inc., 257 N.C. 785, 127 S.E. 2d 575 (1962). Its purpose is \u201cto protect the employer against claims too old to be successfully investigated and defended.\u201d 3 Larson, Workmen\u2019s Compensation Law \u00a7 78.20 at 15-28 (1976). Here, claimant notified the carrier immediately regarding his surgery. Claimant testified that the carrier was notified \u201cat that time.\u201d Hence, the carrier had immediate notice of the claim, and the purpose of the limitation is not circumvented by the conclusion that claimant timely filed his application.\nThe worker\u2019s compensation act should be liberally construed to effectuate its purpose to provide compensation for injured employees or their dependents; and its benefits should not be denied by a technical, narrow, and strict construction. Hinson v. Creech, 286 N.C. 156, 209 S.E. 2d 471 (1974); Stevenson v. City of Durham, 281 N.C. 300, 188 S.E. 2d 281 (1972); Britt v. Construction Co., 35 N.C. App. 23, 240 S.E. 2d 479 (1978). \u201cThe primary consideration is compensation for injured employees.\u201d Barbour v. State Hospital, 213 N.C. 515, 518, 196 S.E. 812, 814 (1938). To eschew those reasonable inferences prerequisite to the conclusion that claimant made timely application for review of his award would result in the miserly construction of the act proscribed by this principle.\nThe opinion and award of the Industrial Commission is reversed. The cause is remanded for findings of fact and determination whether claimant, having timely filed application for review, is entitled to modification, on grounds of a change in condition, of his prior award.\nReversed and remanded.\nChief Judge MORRIS and Judge MARTIN (Robert M.) concur.",
        "type": "majority",
        "author": "WHICHARD, Judge."
      }
    ],
    "attorneys": [
      "Hutchins, Tyndall, Bell, Davis & Pitt, by Richard Tyndall, for plaintiff appellant.",
      "Young, Moore, Henderson & Alvis, by John E. Aldridge, Jr., and William F. Lipscomb, for defendant-employer and defendant-carrier, appellees."
    ],
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    "head_matter": "JAMES O. PENNINGTON, Employee, Plaintiff Appellant v. FLAME REFRACTORIES, INC., Employer, and GENERAL ACCIDENT GROUP, Carrier, Defendant Appellees\nNo. 8010IC745\n(Filed 1 September 1981)\nMaster and Servant \u00a7 77.2\u2014 workers\u2019 compensation \u2014review of award for change of condition \u2014timeliness of application\nClaimant\u2019s application for review of his workers\u2019 compensation award on the ground of a change of condition was made within the two-year limitation of G.S. 97-47 where the evidence tended to show that claimant last received compensation for an employment-related injury on 13 April 1976; he required further surgery on 1 November 1977; his wife immediately advised defendant carrier that this surgery was related to the injury; on 30 January 1978 claimant\u2019s wife telephoned the Industrial Commission and talked with a Commission employee who advised her to write the Commission about her husband\u2019s claim; claimant\u2019s wife typed and mailed a letter to the Commission, sufficiently addressed, dated 31 January 1978 but such letter was not received by the Commission; evidence supported a reasonable inference of nondelay in mailing the letter; and there is a presumption that mail, with postage prepaid and correctly addressed, will be received.\nAPPEAL by plaintiff (claimant) from opinion and award of the North Carolina Industrial Commission, by Commissioner William H. Stephenson (adopting the opinion and award of the Hearing Commissioner, Deputy Commissioner Ben E. Roney, Jr.) filed 25 April 1980. Heard in the Court of Appeals 2 March 1981.\nClaimant appeals from a denial of review of his worker\u2019s compensation award.\nHutchins, Tyndall, Bell, Davis & Pitt, by Richard Tyndall, for plaintiff appellant.\nYoung, Moore, Henderson & Alvis, by John E. Aldridge, Jr., and William F. Lipscomb, for defendant-employer and defendant-carrier, appellees."
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