Shuler v. Talon Division of Textron

227 S.E.2d 627 (1976)

30 N.C. App. 570

Calvin SHULER v. TALON DIVISION OF TEXTRON and Aetna Casualty & Surety Co.

No. 7527IC1019.

Court of Appeals of North Carolina.

September 1, 1976.

*630 Joseph B. Roberts, III, Mount Holly, for claimant.

Golding, Crews, Meekins, Gordon & Gray by Michael K. Gordon, Charlotte, for defendants.

BROCK, Chief Judge.

We have not considered upon this appeal the items stricken by the Industrial Commission from the proposed record on appeal, and later sought to be added to the record on appeal by claimant. Settlement of the record on appeal is the function of the trial tribunal, and its rulings thereon will not be reviewed in the absence of a showing of a manifest abuse of discretion. No such showing has been made on this appeal.

Claimant attacks the ruling of the Industrial Commission on three grounds. First, *631 claimant argues that the twelve-month limitation in G.S. 97-47 does not apply to a hearing to enforce an order entered under G.S. 97-25 because he is not seeking additional compensation on the grounds of a change of condition. Secondly, claimant argues that even if the twelve-month limitation on G.S. 97-47 is applicable, claimant's letter to Deputy Commissioner Roney dated 24 May 1973 (received by the Commission on 29 May 1973) was within twelve months of the last payment of compensation and constituted the filing of a claim, thereby tolling the running of the twelve-month limitation. Thirdly, claimant argues that even if the twelve-month limitation of G.S. 97-47 is applicable, and even if his letter dated 24 May 1973 does not constitute the filing of a claim, defendants should be held to be equitably estopped to plead the passage of the twelve-month limitation.

Although we acknowledge that the law of estoppel applies in compensation proceedings, Willis v. Davis Industries, 280 N.C. 709, 186 S.E.2d 913 (1972), and that there are instances where an informal letter may serve as a claim for compensation or for a modification of an award on the grounds of change of condition, we do not feel it is necessary to decide whether either of those principles is applicable to the present case.

Claimant's argument that G.S. 97-47 is not applicable because he seeks only continued payment of medical expenses, not additional compensation on the ground of change of condition, ignores the clear wording of the last phrase of G.S. 97-47, which reads: ". . . except that in cases in which only medical or other treatment bills are paid, no such review shall be made after 12 months from the date of the last payment of bills for medical or other treatment, paid pursuant to this Article." (Emphasis added.) Thus, if this were a case in which only medical expenses had been awarded in the original award, G.S. 97-47 would apply. Obviously this is not a case where only medical or other treatment bills were paid. A lump sum payment of $3,500.00 as compensation for diminution of earning capacity was ordered in the original award in November 1972. Therefore claimant's procedure was inextricably tied to G.S. 97-47, which requires notice within twelve months of the last payment of compensation and a showing of change of condition. Where an award directs the payment of both compensation and medical expenses, then the injured employee has one year (two years effective 1 July 1974, G.S. 97-47 as amended) from the last payment of compensation pursuant to the award in which to file claim for further compensation upon an alleged change of condition. Where the award directs the payment of medical bills only, an extension of the award would not be permissible unless there is a showing of change of condition since the original award. Biddix v. Rex Mills, 237 N.C. 660, 75 S.E.2d 777 (1953). If the legislature had intended that no showing of a change of condition was necessary where only additional medical expense payments are sought, it would have so provided.

The evidence shows no change in claimant's condition. The claimant's work record was not shown, and claimant does not assert a change of condition. The deputy commissioner's findings negate a change in claimant's condition. A mere change of the doctor's opinion with respect to claimant's preexisting condition does not constitute a change of condition required by G.S. 97-47. Pratt v. Upholstery Co., 252 N.C. 716, 115 S.E.2d 27 (1960).

From the doctor's testimony it appears that claimant's condition will require continuous treatment, but claimant has failed to pursue his statutory remedy by showing a change of condition.

We do not decide the question of whether notice of claimant's claim for additional medical expense payments was timely. In our opinion the Commission's holding that claimant's failure to show a change of condition bars additional recovery is correct, and is dispositive of the claim.

Affirmed.

VAUGHN and MARTIN, JJ., concur.