Tucker v. Lowdermilk

Annotate this Case

63 S.E.2d 109 (1951)

233 N.C. 185

TUCKER v. LOWDERMILK et al.

No. 676.

Supreme Court of North Carolina.

February 2, 1951.

*111 Hughes & Hines, Greensboro, for plaintiff.

Smith, Wharton, Sapp & Moore, Greensboro, for defendants.

DENNY, Justice.

The defendants seriously contend the evidence is insufficient to support a finding that the plaintiff is disabled, and, if so, that such disability is the result of the accident of 26 March, 1948.

It is true the plaintiff has been examined and re-examined by a number of medical experts, and they are unable to find any definite and conclusive cause for the plaintiff's condition. But in the original agreement for compensation, these defendants agreed that plaintiff's disability resulted from an injury by accident arising out of and in the course of his employment, and his complaint then with respect to severe pain in his back and chest was similar to the condition which incapacitated him later. Moreover, one physician who examined the plaintiff on 5 April, 1948, and reported that in his opinion the plaintiff had no permanent injury, testified in the hearing below that he had changed his mind and is now of the opinion the plaintiff has some injury to his intevertebral disc. And, according to the testimony adduced in the hearing below, such an injury would not show in an X-ray.

We think the finding of the Commission in this respect must be upheld; since under our practice, if there is any competent evidence to support a finding of fact of the Industrial Commission, such finding is conclusive on appeal, even though there is evidence that would have supported a finding to the contrary. Creighton v. Snipes, 227 N.C. 90, 40 S.E.2d 612; Rewis v. New York Life Ins. Co., 226 N.C. 325, 38 S.E.2d 97; Hegler v. Cannon Mills Co., 224 N.C. 669, 31 S.E.2d 918; Kearns v. Furniture Co., 222 N.C. 438, 23 S.E.2d 310; Buchanan v. State Highway Com., 217 N.C. 173, 7 S.E.2d 383; Knight v. Ford Body Co., 214 N.C. 7, 197 S.E. 563; Swink v. Carolina Asbestos Co., 210 N.C. 303, 186 S.E. 258.

The more serious question presented for determination, is whether or not, under the facts and circumstances disclosed by the record, the plaintiff's claim for compensation was barred under the provisions of G.S. § 97-47, at the time he requested a hearing. This statute limits the right of review to twelve months from the date of the last payment of compensation pursuant to an award, except in cases in which only medical or other treatment bills are paid. In such cases review is limited to twelve months from the date of the last payment of such bills for medical or other treatment, paid pursuant to the provisions of the Compensation Act.

An agreement for the payment of compensation when approved by the Commission is as binding on the parties as an order, decision or award of the Commission unappealed from, or an award of the Commission affirmed upon appeal. G.S. § 97-87.

The Commission concluded as a matter of law that the plaintiff is entitled *112 to additional compensation, notwithstanding he made no request for a hearing, or for additional compensation, until after the expiration of more than sixteen months from the date of the last payment of compensation. The Commission construed the agreement to pay compensation beginning from 13 April 1948, and continuing for necessary weeks to require the defendants to pay compensation to the claimant for his period of temporary total disability beginning 12 October 1948, which period coupled with his previous period of disability exceeded 28 days, making the defendants also liable for the deducted waiting period from 5 April through the 12th. G.S. § 97-28. Therefore, the Commission held the defendants had not made final payment for the "necessary weeks" as required by the agreement.

In support of the above interpretation of the agreement executed by the parties and approved by the Commission, the Commission relies upon its Rule #13, promulgated pursuant to the authority contained in G.S. § 97-80(a), the pertinent part of which reads as follows: "Compensation cannot be discontinued after an award has been made or an agreement between parties approved until the full award has been paid, except that in case the award is made during disability, such disability is presumed to last until the employee returns to work * * *."

We do not concur in the conclusion of law with respect to the payments required under the agreement for the payment of compensation, nor do we think the Commission's Rule #13 has any material bearing on the question before us. However, if an award is made, payable during disability, and there is a presumption that disability lasts until the employee returns to work, there is likewise a presumption that disability ended when the employee returned to work.

We construe the agreement to pay compensation beginning with 13 April and continuing for necessary weeks, to direct the payment of compensation to the claimant only from the 13th April until he returned to work; since the agreement at the time of its execution set forth the fact that the claimant had already returned to work.

Furthermore, G.S. § 97-18(a) requires the employer within sixteen days after final payment of compensation has been made to notify the Commission that such final payment has been made, the total amount of compensation paid, etc. The report required by this statute was signed by the claimant on 28 April, 1948, by the defendant carrier on 14 May, 1948, and according to the record, received by the Commission on 15 May, 1948. And while the Commission finds as a fact that the first knowledge it had of the existence of this report was when it was introduced before the hearing Commissioner on 12 October, 1949, the finding is not supported by the record. The following statement appears on the face of the report: "Received 5-15-48, N.C. Industrial Commission". And the certificate of the Secretary to the Commission, in certifying the original records in the proceeding to the Superior Court of Guilford County, contains the following statement: "That on 15 May, 1948, the Commission received from the insurance carrier a final settlement receipt signed by the plaintiff on 28 April, 1948, showing compensation was paid in the amount of $20.57 and medical expense in the amount of $20.00, and that plaintiff had returned to work on 19 April, 1948, at his original wage of $55.00 per week."

We think the provisions of G.S. § 97-47 are controlling on this appeal. And since the plaintiff's request for a review was not made until after the expiration of more than twelve months from the last payment of compensation, made pursuant to the agreed settlement, his claim for additional compensation by reason of his changed condition is barred. Lee v. Rose's Stores, Inc., 205 N.C. 310, 171 S.E. 87; Knight v. Ford Body Co., supra. And the payment of medical bills by the carrier did not extend the time for review, since compensation had been agreed upon and paid. See Whitted v. Palmer-Bee Co., 228 N.C. 447, 46 S.E.2d 109.

The case of Hanks v. Southern Public Utilities Co., 210 N.C. 312, 186 S.E. 252, *113 upon which the appellee is relying, dealt with an entirely different factual situation from that presented on the present appeal, and is therefore not controlling in the instant case.

The judgment entered below affirming the award of the Commission, is reversed.