Clodfelter v. UNITED FURNITURE CO.

247 S.E.2d 263 (1978)

38 N.C. App. 45

Charles CLODFELTER, Employee-Plaintiff, v. UNITED FURNITURE COMPANY, Employer, American Mutual Liability Ins. Co., Carrier, Defendants.

No. 7710IC954.

Court of Appeals of North Carolina.

September 5, 1978.

*264 Gerrans & Spence, by C. E. Gerrans, Kinston, for plaintiff.

Teague, Johnson, Patterson, Dilthey & Clay, by George W. Dennis, III, Raleigh, for defendants.

MARTIN, Judge.

The question for decision is whether there was sufficient evidence of estoppel to give the North Carolina Industrial Commission jurisdiction when no claim was filed by the plaintiff within the time allowed by G.S. 97-24(a). We answer the question in the negative. 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, and if death results from the accident, unless a claim be filed with the Commission within one year thereafter."

Plaintiff contends the employer should be estopped from asserting the lateness of a claim if the employer discouraged the filing through misrepresentation, deception or assurances. He argues that his evidence should invoke the doctrine of estoppel for that defendants' employees could not recall what they might have said at the time of the accident.

The general rule in this State is stated in Hart v. Motors, 244 N.C. 84, 88, 92 S.E.2d 673, 676 (1956):

"The North Carolina Industrial Commission has a special or limited jurisdiction created by statute, and confined to its terms. Viewed as a court, it is one of limited jurisdiction, and it is a universal rule of law that parties cannot, by consent, give a court, as such, jurisdiction over subject matter of which it would otherwise not have jurisdiction. Jurisdiction in this sense cannot be obtained by consent of the parties, waiver, or estoppel. (Citations omitted)" See Barham v. Hosiery Co., 15 N.C.App. 519, 190 S.E.2d 306 (1972).

There is a direct contradiction between the testimony presented by the plaintiff and that offered by the defendants. A resolution of this conflict necessarily requires passage on the credibility of the witnesses involved. In finding as a fact and concluding as a matter of law that there is *265 insufficient evidence of estoppel to confer jurisdiction on the Commission, both Deputy Commissioner Delbridge and the Full Commission have resolved this credibility question contrary to the plaintiff. This being so, this finding of fact and conclusion of law is binding on appeal, as the Commission is the sole judge of the credibility of the witnesses, and of the weight to be given to their testimony. Anderson v. Motor Company, 233 N.C. 372, 64 S.E.2d 265 (1951); Henry v. Leather Company, 231 N.C. 477, 57 S.E.2d 760 (1950).

Inasmuch as the findings of fact are supported by legal evidence, the opinion and award of the Full Commission cannot be disturbed.

For the reasons given, the decision of the Commission is

Affirmed.

VAUGHN and MITCHELL, JJ., concur.