Baldwin v. Amazon Cotton MillsAnnotate this Case
117 S.E.2d 718 (1961)
253 N.C. 740
W. Maston BALDWIN v. AMAZON COTTON MILLS and Travelers Insurance Company.
Supreme Court of North Carolina.
January 20, 1961.
*720 W. H. Steed, Thomasville, Teague, Johnson & Patterson, Raleigh, for plaintiff appellee.
Sapp & Sapp, Greensboro, for defendant appellants.
WINBORNE, Chief Justice.
The pivotal question on appeal is whether or not the Industrial Commission had jurisdiction of this case when "the plaintiff received the full benefit of an award to the limit of the North Carolina Workmen's Compensation Act, Chapter 97 of the General Statutes of North Carolina, Article 1 * * *" for the injury initially claimed. Put another way, is the finding of fact at *721 the original hearing conclusive, or does the Industrial Commission retain jurisdiction over the parties and subject matter of the dispute for further adjustment for change of condition?
Defendants contend that all of the terms of the initial award have been complied with and, therefore, the North Carolina Industrial Commission does not have jurisdiction. On the other hand, the plaintiff contends that the plaintiff had a change of condition and that the law, specifically G.S. § 97-47, gives the Industrial Commission the authority to re-open a case upon a proper application for a change of condition.
G.S. § 97-47 provides: "Upon its own motion or upon the application of any party in interest on the ground of a change of condition, the Industrial Commission may review any award, and on such review may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in this article * * *." By this section the Industrial Commission is given authority to review an award and increase the compensation theretofore awarded when there has been a change of condition of the claimant, and where the evidence supports a finding of change in claimant's condition, the finding of the Industrial Commission is conclusive. Knight v. Body Co., 214 N.C. 7, 197 S.E. 563; Murray v. Nebel Knitting Co., 214 N.C. 437, 199 S.E. 609; Dail v. Kellex Corp., 233 N.C. 446, 64 S.E.2d 438, 440.
In the Dail case, supra, the Court said: "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, this section affords the claimant a remedy and fixes the time within which he must seek it."
The conclusion is that the Industrial Commission, by virtue of G.S. § 97-47, had authority to re-open the case upon application for change of condition, notwithstanding the fact that defendants had paid the maximum under the award of Deputy Commissioner W. Scott Buck, dated 22 September, 1952. Indeed, there is no maximum where there is permanent disability due to injury to the spinal cord. G.S. § 97-29; G.S. § 97-41.
G.S. § 97-47 further provides that a review must be had within twelve months from the last payment of compensation. And in this connection this Court has held that the last payment of compensation within the meaning of this section is the date the last check was delivered to and accepted by the employee. Paris v. Carolina Builders Corp., 244 N.C. 35, 92 S.E.2d 405; Harris v. Asheville Contracting Co., 240 N.C. 715, 83 S.E.2d 802.
The defendants contend that since the review in this case was actually made by the Industrial Commission more than twelve months after the last payment of compensation, the Industrial Commission is precluded from making the review. We cannot agree with this contention. The record of case on appeal shows that the defendants made the last payment of compensation on 11 September, 1957, and that the plaintiff requested a hearing on 18 November, 1957. The fact that the Industrial Commission did not actually hear the claim until after the twelve months period had elapsed does not bar the plaintiff from having his case heard by the Commission. The plaintiff requested a hearing in apt time and the fact the Industrial Commission did not actually conduct the hearing within the time specified by the statute does not revoke the jurisdiction of the Industrial Commission in the matter.
Indeed, the defendants cite cases in their brief in which there is language to the effect that an application for review within the twelve months following final payment *722 of compensation is sufficient to invoke the jurisdiction of the Commission. Whitted v. Palmer-Bee Co., 228 N.C. 447, 46 S.E.2d 109; Dail v. Kellex Corp., supra; Harris v. Asheville Contracting Co., supra; Paris v. Carolina Builders Corp., supra.
The plaintiff should not have his rights prejudiced by the fact that circumstances prevented the Industrial Commission from actually conducting the hearing within the twelve months next after the last payment of compensation.
The defendants also assign as error the fact that their motion to dismiss was not ruled upon by the Hearing Commissioner, Full Commission, or the Superior Court. It is to be noted that the Trial Commissioner by his opinion and award filed 21 September, 1959, in effect ruled on the motion to dismiss in that he found for the plaintiff in every respect. Thereafter the Full Commission affirmed in every respect the findings of fact and conclusions of law rendered by the Hearing Commissioner, and the Superior Court affirmed the findings of fact and conclusions of law of the Full Commission.
It is an elementary rule of law in North Carolina in Workmen's Compensation cases that the facts found by the Industrial Commission are conclusive on appeal, both in the Superior Court and in the Supreme Court when supported by competent evidence. G.S. § 97-86. McGinnis v. Old Fort Finishing Plant, N.C., 117 S.E.2d 490. Upon a careful reading of the record of case on appeal the conclusion is that the evidence supports the findings of fact; that the findings of fact support the conclusions of law; and that the conclusions of law support the award.
Therefore, for reasons stated the judgment of the Superior Court from which appeal is taken is