Lynch v. MB Kahn Const. Co.

Annotate this Case

254 S.E.2d 236 (1979)

41 N.C. App. 127

Vernon LYNCH, Employee, v. M. B. KAHN CONSTRUCTION COMPANY, Employer, Self-Insured.

No. 7710IC952.

Court of Appeals of North Carolina.

May 1, 1979.

*237 Banzet & Banzet and Lewis Alston Thompson, III, Warrenton, for plaintiff.

Hedrick, Parham, Helms, Kellam & Feerick by J. A. Gardner, III, Charlotte, for defendant.

PARKER, Judge.

No appeal lies from an interlocutory order of the North Carolina Industrial Commission. Vaughn v. Dept. of Human Resources, 37 N.C.App. 86, 245 S.E.2d 892 (1978). Only from a final order or decision of the Industrial Commission is there an appeal of right to this Court. G.S. 7A-29; G.S. 97-86. No final order or decision of the Commission has yet been entered in this case, and defendant's attempted appeal from the Commission's interlocutory order is dismissed. Nevertheless, in order that we may pass upon the question which defendant seeks to present concerning the extent of the Full Commission's power to receive further evidence in a compensation case after an award has been entered by a single commissioner or a deputy commissioner, we grant defendant's petition for writ of certiorari.

Insofar as pertinent to the question here presented, G.S. 97-85 provides:

If application is made to the Commission within 15 days from the date when notice of the award [made by a commissioner or deputy commissioner pursuant to G.S. 97-84] shall have been given, the full Commission shall review the award, and, if good ground be shown therefor, reconsider the evidence, receive further evidence, rehear the parties or their representatives, and, if proper, amend the award . . ..

Defendant contends that the Commission in the present case exceeded the power granted it by G.S. 97-85 to "receive further evidence" in that here no "good ground" has been shown therefor. More particularly, defendant contends that plaintiff failed, after three hearings, to present *238 any competent medical evidence to establish a causal connection between the accident which occurred on 1 March 1973, when he fell and struck his right hip, and his ruptured intervertebral disc, which Dr. Odom removed and which caused plaintiff's disability. From this, defendant argues that the plaintiff, who had the burden of proof, simply failed to present sufficient evidence to establish a compensable claim, and defendant contends that the "good ground" which G.S. 97-85 requires to be shown before the Commission may "receive further evidence" means something more than the mere failure of a claimant to make out his case after he has had a fair opportunity to do so. For these reasons, defendant contends that the Commission exceeded its powers in remanding the case for further testimony and that it should have simply reversed the deputy commissioner's award as being unsupported by competent evidence. We do not agree.

It is axiomatic that the Workmen's Compensation Act should be liberally construed to achieve its purpose of providing compensation to employees injured by accident arising out of and in the course of their employment and that its benefits should not be denied by a technical or narrow construction of its language. Hollman v. City of Raleigh, 273 N.C. 240, 159 S.E.2d 874 (1968). Consistent with this approach, we have held that procedurally "[t]he strict rules applicable to ordinary civil actions are not appropriate in proceedings under the Act." Conklin v. Freight Lines, 27 N.C. App. 260, 261, 218 S.E.2d 484, 485 (1975). In that case we affirmed an order of the Industrial Commission which, after making an award of partial benefits, retained jurisdiction in order to give the claimant a second chance to prove his case for additional benefits. We have also held that the Commission, upon appeal to it from an opinion and award of the hearing commissioner, had the discretionary authority to receive further evidence regardless of whether it was newly discovered evidence. Lewallen v. Upholstery Co., 27 N.C.App. 652, 219 S.E.2d 798 (1975); Harris v. Construction Co., 10 N.C.App. 413, 179 S.E.2d 148 (1971).

We now hold that, giving the language of G.S. 97-85 the liberal construction to which it is entitled, the powers which are granted therein to the full Commission to "review the award, and, if good ground be shown therefor, reconsider the evidence, receive further evidence, rehear the parties or their representatives, and, if proper, amend the award," are plenary powers to be exercised in the sound discretion of the Commission. Specifically, we hold that whether "good ground be shown therefore" in any particular case is a matter within the sound discretion of the Commission, and the Commission's determination in that regard will not be reviewed on appeal absent a showing of manifest abuse of discretion. Clearly, no manifest abuse of the Commission's discretion has been shown in the present case.

The Commission's order in this case is


CLARK and ERWIN, JJ., concur.