Annotate this Case

97 S.E.2d 432 (1957)

246 N.C. 26

Pat PENLAND, Employee, v. BIRD COAL COMPANY, Inc., Employer, and American Fire & Casualty Company, Carrier.

No. 90.

Supreme Court of North Carolina.

April 10, 1957.

*435 W. W. Candler and Cecil C. Jackson, Asheville, for plaintiff, appellant.

Meekins, Packer & Roberts, Asheville, for defendants, appellees.

JOHNSON, Justice.

Decision here turns on whether there is competent evidence to support the Industrial Commission's findings that the plaintiff has suffered temporary disability and partial loss of earning capacity as set out in findings of fact numbers 3 and 5.

Under the Workmen's Compensation Act the Industrial Commission has the exclusive duty and authority to find the facts relative to controverted claims, and its findings of fact, except with respect to jurisdictional findings, Aycock v. Cooper, 202 N.C. 500, 163 S.E. 569, are conclusive on appeal, both to the Superior Court and in the Supreme Court, when supported by any competent evidence. G.S. § 97-86. Thomason v. Red Bird Cab Co., 235 N.C. 602, 70 S.E.2d 706.

*436 Findings not supported by competent evidence are not conclusive and will be set aside on appeal. Logan v. Johnson, 218 N.C. 200, 10 S.E.2d 653. The rule is that the evidence must be legally competent; and a finding based on incompetent evidence is not conclusive. Plyler v. Charlotte Country Club, 214 N.C. 453, 199 S.E. 622. However, where an essential fact found by the Industrial Commission is supported by competent evidence, the finding is conclusive on appeal, even though some incompetent evidence was also admitted at the hearing. Carlton v. Bernhardt-Seagle Co., 210 N.C. 655, 188 S.E. 77.

The defendants in their brief concede that the direct testimony of Dr. Chapman, "standing alone, if competent, would support an award." However, the defendants contend that Dr. Chapman's opinions as to plaintiff's alleged disability should be disregarded and treated as incompetent evidence in view of the witness' admissions made on cross-examination to the effect that the testimony was based upon "subjective statements made by the claimant."

As to this contention, the rule is that ordinarily the opinion of a physician is not rendered inadmissible by the fact that it is based wholly or in part on statements made to him by the patient, if those statements are made, as in the instant case, in the course of professional treatment and with a view of effecting a cure, or during an examination made for the purpose of treatment and cure. "In such cases statements of an injured or diseased person, while not admissible as evidence of the facts stated, may be testified to by the physician to show the basis of his opinion." 20 Am.Jur., Evidence, Sec. 866, p. 729; Annotation: 65 A.L.R. 1217, c. 1223 et seq. See also: Annotations: 67 A.L.R. 10, 11, 18; 80 A.L.R. 1527; 130 A.L.R. 977; Wigmore on Evidence, Third Ed., Sections 688, 1718, and 1720; Rogers on Expert Testimony, Third Ed., Section 131, p. 301 et seq.; McCormick on Evidence (Hornbook), Sec. 266; Bryant v. Burns-Hammond Construction Co., 197 N.C. 639, 150 S.E. 122, and cases there cited; Martin v. P. H. Hanes Knitting Co., 189 N.C. 644, 127 S.E. 688.

It may be conceded that the probative force of Dr. Chapman's testimony in chief was materially weakened by the admissions made by him on cross-examination. Nevertheless, when considered in the light of the foregoing principles of law, the opinions given by him were admissible. His testimony and that of the plaintiff contains ample competent evidence to support the crucial findings of fact made by the Industrial Commission. The court below erred in sustaining the defendants' exceptions to findings of fact numbers 3 and 5.

The defendants make the further contention that the judgment below reversing the award of the Industrial Commission should be upheld on another ground, namely, that the award is not supported by a finding that plaintiff's condition underwent a change within the meaning of G.S. § 97-47. The defendants point to the failure of the Commission to find that the plaintiff's condition changed for the worse after he returned to work on 1 March, 1954, and assert that the award should stand reversed because of this omission. The contention is not supported by the record. The statute, G.S. § 97-47, on which the defendants rely provides for "review of any award" on the ground of a changed condition. Therefore the statute has no application except where it is made to appear that a previous award has been made by the Industrial Commission.

In the instant case, the record before the Superior Court discloses no previous award of the Industrial Commission, but rather that the plaintiff's claim was determined by the hearing Commissioner on the theory that the claim was one for an award of first impression. At the hearing it was stipulated by the defendants that they paid plaintiff for total disability from the time of the injury until he returned to work 1 *437 March, 1954. With the facts in respect to previous payment of compensation so disposed of by stipulation, the hearing Commissioner closed the hearing by dictating into the record the gist of the stipulation of the parties, to the effect that after the plaintiff's injury the defendants "admitted liability and paid claimant for temporary total disability from 27 January 1954 to 1 March 1954." And in making up his findings of fact, the hearing Commissioner made no reference to the previous payment of compensation, nor to whether there was a previous award or whether there was a change of condition after the plaintiff returned to work. The crucial finding of the hearing Commissioner on which the award was made is that as a result of the accident the plaintiff has been temporarily partially disabled since 4 June, 1954 and only able to earn an average weekly wage of $15.00.

On appeal to the Full Commission the defendants by exceptions numbers 5, 6, and 7 challenged the findings and award (1) for failure of the plaintiff to prove a change of condition for the worse after returning to work, and (2) for want of a finding by the hearing Commissioner of any such changed condition. These exceptions, and also all others made by the defendants, were overruled by the Full Commission, and the findings, conclusions and award of the hearing Commissioner were affirmed. All exceptions relating to failure of the Commission to find a changed condition were abandoned and not carried forward on the defendants' appeal to the Superior Court. Moreover, the record on appeal to the Superior Court nowhere discloses any previous award made by the Industrial Commission. Thus the question whether the plaintiff's condition had undergone a change within the purview of G.S. 97-47 was not presented for review before the Superior Court. The defendants' appeal was heard and determined in the Superior Court, as before the hearing Commissioner, upon the theory that the challenged award was one of first impression.

The record as certified to this Court by the Superior Court includes documents which disclose for the first time that an order in the nature of an award may have been made by the Industrial Commission approving a settlement between the plaintiff and the defendants. The first of these documents is an uncaptioned order or award of the Commission. It recites the filing by the "above parties" (but nowhere are the names of the parties shown) of an agreement for compensation for disability on I. C. Form No. 21 (26) for approval. The order recites approval of the agreement as "a formal award of the Industrial Commission." However, the agreement is not attached and none of its terms are disclosed, except a recital that claimant is "due compensation at the rate of $22.48 per week, payable weekly, beginning February 4, 1954." The other document added to the record on appeal to this Court is a "closing receipt" signed by the plaintiff Penland on 3 May, 1954. It acknowledges receipt of compensation payments totalling $102.76 as compensation for injuries sustained on 27 January, 1954, and recites that payments stop upon execution of the receipt, but that if claimant's condition changes for the worse, further compensation may be claimed by notifying the Industrial Commission within one year from 3 May, 1954. This receipt purports to have been filed with the Industrial Commission 14 May, 1954, but no formal approval by the Commission is shown.

Even if the foregoing documents had been included in the record before the Superior Court, it may be doubted, because of their fragmentary character and incompleteness, that they are sufficient to have presented for review the question of changed condition within the meaning of G.S. § 97-47. Especially is this so in view of the defendants' failure to carry forward to the Superior Court their exceptions directed to the question of changed condition. But conceding arguendo the sufficiency of the documents, this procedural question arises: May the defendants claim *438 the benefit of matters in the record on appeal to this Court which were not in the record on appeal to the Superior Court, and on the basis of such matters reassert in this Court a defense which on exceptions duly noted was first asserted before the Full Commission but thereafter abandoned and not carried forward on appeal to the Superior Court? A negative answer would seem to be required under application of these established principles of procedural law:

When an appeal is taken from the Industrial Commission, the statute, G.S. § 97-86, requires that a certified transcript of the record before the Commission be filed in the Superior Court. Anderson v. Wray Plumbing & Heating Co., 238 N.C. 138, 76 S.E.2d 458. When the appeal comes on for hearing, it is heard by the presiding judge who sits as an appellate court. His function is to review alleged errors of law made by the Industrial Commission, as disclosed by the record and as presented to him by exceptions duly entered. Necessarily, the scope of review is limited to the record as certified by the Commission and to the questions of law therein presented. Worsley v. S. & W. Rendering Co., 239 N.C. 547, 80 S.E.2d 467. On appeal from a judgment of the Superior Court affirming or reversing an award of the Industrial Commission, the Supreme Court acts upon the record that was before the Superior Court, and upon that alone, and if the record was defective, it should have been amended in the Superior Court. The Supreme Court can judicially know only what appears in the record which was before the Superior Court. See Lewter v. Abercrombie Enterprises, Inc., 240 N.C. 399, 82 S.E.2d 410; Baker v. Varser, 240 N.C. 260, 82 S.E.2d 90; Glace v. Pilot Throwing Co., 239 N.C. 668, 80 S.E.2d 759; State ex rel. Utilities Commission v. Ray, 236 N.C. 692, 73 S.E.2d 870. Accordingly, matters which were not in the record before the Superior Court, but which are sent up with the transcript to the Supreme Court, are no more a part of the record in the Supreme Court than they were in the Superior Court, and may not be made so by certificate of the court below.

Moreover, the general rule obtains with us that an appellate court will consider only such questions as were raised in the lower court. Greene v. Spivey, 236 N.C. 435, 73 S.E.2d 488. And the rule requiring adherence to the theory pursued below operates ordinarily to preclude the consideration, on appeal to the Supreme Court, of grounds of defense or opposition not asserted or relied on in the lower court. Collier v. Mills, 245 N.C. 200, 95 S.E.2d 529; Paul v. Neece, 244 N.C. 565, 94 S.E.2d 596; Lyda v. Town of Marion, 239 N.C. 265, 79 S.E.2d 726; Leggett v. Southeastern People's College, 234 N.C. 595, 68 S.E.2d 263.

It thus appears that the record here does not present for decision the question whether the award made by the Industrial Commission should stand reversed for want of a finding that the plaintiff's condition underwent a change within the meaning of G.S. § 97-47. Even so, it may be doubted that the plaintiff's claim is subject to overthrow by application of this statute on a merit basis. See Smith v. Mecklenburg County Chapter Am. Red Cross, 245 N.C. 116, at page 122, 95 S.E.2d 559, at page 563.

The judgment of the Superior Court setting aside the award of the Industrial Commission is