Hubbard v. Burlington Industries

332 S.E.2d 746 (1985)

Maggie HUBBARD, Employee v. BURLINGTON INDUSTRIES, Employer; and Liberty Mutual Insurance Company, Carrier.

No. 8410IC909.

Court of Appeals of North Carolina.

August 6, 1985.

*747 Charles R. Hassell, Jr., Raleigh, for plaintiff-appellee.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by C. Ernest Simons and Steven M. Sartorio, Raleigh, for defendants-appellants.

WEBB, Judge.

The first question raised by this appeal is whether the full Commission was correct in dismissing the appeal from the Deputy Commissioner. G.S. 97-85 says in part:

If application is made to the Commission within 15 days from the date when notice of the award 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....

The defendants received notice of the award on 19 April 1983. The defendants' attorney mailed the notice of appeal to the full Commission on 3 May 1983 which was fourteen days after the defendants received the notice. The notice of appeal was filed in the office of the full Commission on 5 May 1983 which is sixteen days after the defendants received the notice of the Deputy Commissioner's opinion and award. We hold that the application was made to review the appeal on the day it was mailed to the full Commission. This would be within fifteen days of the time the defendants received the notice of the award from the Deputy Commissioner. It was error for the full Commission to dismiss the appeal.

The appellants argue that it was error to find there was a change in Ms. Hubbard's condition under G.S. 97-47. They say this is so because the test for disability under our Workers' Compensation Act is not physical injury but dimunition of wage earning capacity. See Hall v. *748 Chevrolet Co., 263 N.C. 569, 139 S.E.2d 857 (1965). They argue that a change in condition thus means a change in a person's capacity to earn wages. There was substantial evidence including the opinion testimony of Dr. Sieker that Ms. Hubbard was permanently incapacitated at the time of the first hearing. The defendants contend that there was no more evidence of her permanent disability to earn wages in 1982 than there had been in 1979. For this reason they argue there can be no finding of a change in condition.

We believe that the answer to the defendants' argument is that whatever the evidence showed at the 1978 hearing, the deputy commissioner found Ms. Hubbard to be permanently partially disabled. There was evidence at the 1982 hearing that her lung capacity had decreased. Deputy Commissioner Bryant found that Ms. Hubbard was totally disabled, which finding was affirmed by the full Commission. When the Industrial Commission finds on one occasion that a person is permanently partially disabled and on a later occasion finds based on additional evidence that the person is totally disabled this supports a finding of a change in condition. We agree with the defendants that there was ample evidence for the deputy commissioner to have found in 1979 that Ms. Hubbard was totally disabled. However, it did not do so.

Although not on all fours with this case we believe we are supported in our reasoning by West v. Stevens Co., 12 N.C.App. 456, 183 S.E.2d 876 (1971). In that case the Industrial Commission found the plaintiff had a 12.5 percent permanently partial disability of the leg. At a later hearing there was testimony that the condition of the leg was the same as at the time of the first hearing and had not improved as anticipated. The Industrial Commission held there had been a change in condition of the leg and gave additional benefits. There was no change in the physical condition of the leg in that case. In affirming, this Court said that the Industrial Commission attempted to anticipate the degree of recovery. When later events showed the Commission had not anticipated correctly this supported a finding of a change in condition. We believe West stands for the proposition that if the Industrial Commission finds a fact and the evidence in a subsequent hearing shows the finding was not correct this will support a finding of a different fact which supports a finding of a change in condition. We believe this is what was done in this case.

For the reasons stated in this opinion, we reverse that part of the opinion and award of the Industrial Commission which dismissed the defendants' appeal. We affirm that part of the opinion and award that orders the payment of benefits for life to the plaintiff.

Reversed in part; affirmed in part.

BECTON and PARKER, JJ., concur.