Dail v. Kellex Corp.

64 S.E.2d 438 (1951)

233 N.C. 446

DAIL v. KELLEX CORP. et al.

No. 382.

Supreme Court of North Carolina.

April 11, 1951.

*440 Guy Elliott, Kinston, for plaintiff appellant.

Thos. J. White, Kinston, for defendant appellees.

BARNHILL, Justice.

The Industrial Commission found as a fact that plaintiff has suffered no loss of wages for which he has not been compensated except during the period from 23 August to 18 September 1948 and three days in November 1948. For this additional loss compensation was awarded. But the Commission further found that plaintiff has a twenty per cent permanent partial disability of a general nature which may in the future develop into a compensable disability, and undertook to retain jurisdiction for three hundred weeks pending future developments. In this the Commission exceeded its jurisdiction.

The disability of an employee because of an injury is to be measured by his capacity or incapacity to earn the wages he was receiving at the time of the injury. Branham v. Denny Roll & Panel Co., 223 N.C. 233, 25 S.E.2d 865; Anderson v. Northwestern Motor Co., N.C., 64 S.E.2d 265. Loss of earning capacity is the criterion. If there is no loss of earning capacity, there is no disability within the meaning of the Act.

The function of the Industrial Commission in respect of plaintiff's claim was to determine whether and to what extent he had suffered a disability within the meaning of the Workmen's Compensation Act and to make an award either granting or denying compensation as the evidence might warrant. This it has done and in so doing it discharged its full duty.

There is nothing in the statute, G.S. Chap. 97, that contemplates or authorizes an anticipatory finding by the Commission that a physical impairment may develop into a compensable disability. Neither does the statute vest in the Commission the power to retain jurisdiction of a claim, after compensation has been awarded, merely because some physical impairment suffered by the claimant may, at some time in the future, cause a loss of wages. The Commission is concerned with conditions existing prior to and at the time of the hearing. If such conditions change in the future, to the detriment of the claimant, the statute affords the claimant a remedy and fixes the time within which he must seek it. G.S. § 97-47.

Branham v. Denny Roll & Panel Co., supra, is cited by the Commission and relied on by plaintiff as authority for the order asserting and retaining jurisdiction of the plaintiff's claim. But that decision is bottomed on a substantially different factual situation. It is not controlling here.

The plaintiff has been awarded compensation for the disability he was able to establish at the hearing. This award was affirmed by the court below. Thus he has recovered in full the compensation to which he was entitled.

For that reason the judgment entered is

Affirmed.