Owens v. STANDARD MINERAL COMPANY

177 S.E.2d 775 (1970)

10 N.C. App. 84

Marvin A. OWENS, Employee v. STANDARD MINERAL COMPANY, Employer, Continental Casualty Company, Insurer.

No. 7020IC400.

Court of Appeals of North Carolina.

December 16, 1970.

Certiorari Denied February 2, 1971.

*777 John Randolph Ingram, Asheboro, for plaintiff appellant.

Young, Moore & Henderson, by B. T. Henderson, Raleigh, for defendant appellees.

VAUGHN, Judge.

The order appealed from holds that the order Deputy Commissioner Thomas filed on 29 May 1969, from which no timely appeal was taken constitutes a final adjudication of the claim and, in effect, thus proscribes any relief for plaintiff. We conclude that the Commission was of the opinion that, in the light of the order of 29 May 1969, it could not consider plaintiff's motion for a rehearing on the basis of a change of condition and to hear new evidence. At any rate, it did not do so. This constitutes error.

Plaintiff's application for review on the grounds of a change of condition under the provisions of G.S. § 97-47 was made well within one year of the date of the award requiring payment of his medical bills and was thus timely. G.S. § 97-47.

Moreover, under the circumstances of this case, the Commission is not limited to a consideration of plaintiff's evidence as to changes in his condition since the order of 29 May 1969. It seems to be well established that the Industrial Commission "has the power, in a proper case, and in accordance with its rules and regulations, to grant a rehearing of a proceeding pending before it, and in which it has made an award on the ground of newly discovered evidence." Butts v. Montague Bros., 208 N.C. 186, 179 S.E. 799. Ordinarily, a motion for further hearing on the grounds of introducing additional or newly discovered evidence rests in the sound discretion of the Industrial Commission. Mason v. North Carolina State Highway Commission, 273 N.C. 36, 159 S.E.2d 574. This principle is not applicable where, as here, the Commission declines to consider such a motion under a misapprehension of applicable principles of law. From Hall v. Thomason Chevrolet Co., 263 N.C. 569, 139 S.E.2d 857, the following is thought to be appropriate.

"It is a fundamental rule that the Workmen's Compensation Act `should be liberally construed to the end that the benefits thereof should not be denied upon technical, narrow, and strict interpretation.' Johnson v. Asheville Hosiery *778 Co., 199 N.C. 38, 40, 153 S.E. 591, 593; accord, Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 85 S.E.2d 596. According to some authorities, `[T]he facts that evidence claimed as a basis of a motion to open a compensation award is not newly discovered and might have been offered at the original hearing in the exercise of due diligence, and that counsel, through inadvertence, has failed to present a ground upon which compensation might be allowed, do not in themselves prevent the compensation commissioner from granting such a motion.' 58 Am.Jur., Workmen's Compensation § 541 (1948), citing Olivieri v. City of Bridgeport, 126 Conn. 265, 10 A.2d 770, 127 A.L.R. 1471."

Although we do not deem it necessary to quote further from the opinion in Hall, the principles declared and the quotations from other authorities set out in that opinion are pertinent here.

Reversed and remanded.

CAMPBELL and BRITT, JJ., concur.