Burton v. Peter W. Blum and Son

155 S.E.2d 71 (1967)

270 N.C. 695

Sarah Rebecca Patterson BURTON, Widow, and Next Friend of Walter Patterson Burton, Minor Son, and Bruce Lee Burton, Minor Son of Bobbie Lucian Burton, Deceased Employee, v. PETER W. BLUM AND SON, Employer, Travelers Insurance Company, Carrier.

No. 440.

Supreme Court of North Carolina.

June 20, 1967.

*74 W. Scott Buck, Winston-Salem, for defendants.

Martin & Martin, Mocksville, for plaintiff.

LAKE, Justice.

The Workmen's Compensation Act authorizes the Industrial Commission to make an award of compensation on account of the death of an employee only in the event that "death results approximately from the accident and within two years thereafter, or while total disability still continues and within six years after the accident." G.S. § 97-38. The accident which the Commission found to be the proximate cause of the death occurred 20 June 1960. The death occurred 16 December 1962. The award of compensation was, therefore, authorized only if the employee's "total disability" resulting from the fall still continued at the time of death. It is not sufficient that death occurred while the employee was totally disabled, even though his then disability was the result of the accident. The statute, by its express terms, makes a continuing total disability from the time of the accident to the time of the death a condition precedent to the making of an award of death benefits where, as here, the death occurred more than two years after the accident.

The Act defines disability as follows: "The term `disability' means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment." G.S. § 97-2(9). This definition must be read into G.S. § 97-38 in lieu of the word "disability." Thus, an award of compensation, on account of a death occurring more than two years after the accident, is authorized only if there is evidence to support a finding that, from the accident to the death, the employee had a continuing incapacity, because of the injury, to earn the wages which he was receiving at the time of his accident. "Under the Workmen's Compensation Act disability refers not to physical infirmity but to a diminished capacity to earn money." Hall v. Thomason Chevrolet Co., 263 N.C. 569, 139 S.E.2d 857. Accord: Dail v. Kellex Corp., 233 N.C. 446, 64 S.E.2d 438; Anderson v. Northwestern Motor Co., 233 N.C. 372, 64 S.E.2d 265.

The award in the present instance cannot be sustained on the basis of testimony by the widow that the deceased employee "never spent a well day" after his accident and suffered pain and discomfort throughout the time when he was back at work. In Branham v. Denny Pall & Panel Co., 223 N.C. 233, 25 S.E.2d 865, Barnhill, J., later C. J., speaking for the Court, said:

"The statute provides no compensation for physical pain or discomfort. It is limited to the loss of ability to earn. * * * However urgently he [the claimant employee] may insist that he is `not able to earn' his wages, the fact remains that he is receiving now the same wages he earned before his injury. That fact cannot be overcome by any amount of argument. * * * There is no `disability' if the employee is receiving the same wages in the same or any other employment. That `in the same' employment he is not required to perform all the physical work theretofore required of him can make no difference."

In the present case, it is stipulated that from 28 December 1960 to 21 April 1962 the deceased employee worked regularly for the same employer at the same wage for which he worked prior to the accident, and again worked for the same employer at the same wage from 14 May 1962 to 27 October 1962. In the face of this stipulation, the Commission's further finding and conclusion that this employee's "total disability" continued from the accident to his *75 death more than two years later cannot be sustained.

Although a finding of fact by the Industrial Commission which is supported by some competent evidence is binding upon the superior court and upon this Court on an appeal, Osborne v. Colonial Ice Co., 249 N.C. 387, 106 S.E.2d 573, "when all the evidence and the inferences to be drawn therefrom result in only one conclusion, liability is a question of law subject to review." Hensley v. Farmers Federation Cooperative, 246 N.C. 274, 98 S.E.2d 289; Dependents of Fred Poole v. Sigmon, 202 N.C. 172, 162 S.E. 198.

The award being beyond the authority of the Commission for the above reasons, it is unnecessary for us to determine whether there was sufficient evidence to support the Commission's finding of fact that the accident on 20 June 1960 was the proximate cause of the death, or to determine the competency of the expert testimony upon that question which was admitted over objection by the defendants.

Reversed.