Giles v. Tri-State Erectors

214 S.E.2d 107 (1975)

287 N.C. 219

Luther GILES v. TRI-STATE ERECTORS and Liberty Mutual Insurance Company.

No. 95.

Supreme Court of North Carolina.

May 6, 1975.

*110 John J. Schramm, Jr., Winston-Salem, Attorney for plaintiff appellant.

No counsel contra.

HUSKINS, Justice:

This case turns on whether the Industrial Commission erred in failing to make findings of fact relative to permanent partial disability of plaintiff's right foot, if any, sustained by reason of his accident on 23 April 1970.

It is quite apparent from the record that plaintiff's right foot was still in the healing stage and not ready to be rated when Dr. Urbaniak's medical report dated 18 December 1970 was composed. Hence that report contained no rating on the right foot. Even so, when the report was offered and received in evidence at the hearing before Deputy Barbee on 11 July 1972, plaintiff's counsel said: "I just wanted to make a record of the fact that he still does have this old foot. I don't know which way it's going to go." Thus all parties and the Industrial Commission were on notice that plaintiff had a foot involvement arising out of the accident that might, or might not, result in permanent partial disability, or loss of use of that foot.

More than ten months later when Dr. Urbaniak examined plaintiff on 25 May 1973 by order of the Full Commission, it was found that plaintiff's right foot had changed for the worse resulting in a ten percent permanent partial loss of use of it. The doctor rated the loss accordingly and stated that further treatment would be of no benefit. Thus the healing period had ended. That evidence, along with the doctor's evidence concerning plaintiff's twenty-five percent permanent partial disability of the right arm, was referred by Commissioner Stephenson to the Full Commission "for such disposition as it deems appropriate."

For some obscure reason, the Full Commission declined to make any finding of fact with respect to plaintiff's right foot and plaintiff appealed. The Court of Appeals upheld the Commission's action in this regard for that (1) plaintiff stipulated at the 11 July 1972 hearing that the issue before the Commission was "disfigurement *111 and the amount of permanent partial disability to the arm," (2) plaintiff never brought up the alleged injury to his right foot until 2 November 1973 when he took exception to the failure of the Full Commission to award him compensation for ten percent loss of use of his foot, and (3) plaintiff stated in his notice of appeal to the Full Commission from Deputy Barbee's award that "all other grounds for appeal were waived and abandoned." The Court of Appeals concluded its decision by saying: "It was a too late attempt to do what should have been done some two years or more prior thereto."

It suffices to say that the record does not support grounds (1) and (2) and the third ground is not relevant to plaintiff's foot injury since the foot had not been rated on 11 July 1972 when Deputy Barbee heard evidence, found facts, and issued an award from which plaintiff appealed to the Full Commission. The question of plaintiff's right foot was not involved in that appeal. Rather, the appeal concerned plaintiff's dissatisfaction with the amount awarded for disfigurement and defendant's dissatisfaction with the amount awarded for permanent partial disability to plaintiff's right arm.

Where a claim is properly pending before the Industrial Commission, as here, the injured employee is entitled to an award which encompasses all injuries received in the accident. The employee is required to file but a single claim, and the amount of compensation payable is predicated on the extent of the disability resulting from the accident. Smith v. Red Cross, 245 N.C. 116, 95 S.E.2d 559 (1956). G.S. § 97-31(14) fixes the amount of compensation payable for the loss of a foot and specifies that such amount is payable in addition to compensation paid for disability during the healing period and in lieu of all other compensation, including disfigurement. Thus the award of the Industrial Commission should, within statutory limits, compensate him for all disability suffered. Watkins v. Motor Lines, 279 N.C. 132, 181 S.E.2d 588 (1971); Rice v. Panel Co., 199 N.C. 154, 154 S.E. 69 (1930).

It necessarily follows that plaintiff's claim for compensation for any permanent partial loss of use of his right foot was embraced by his original claim and was pending on 24 October 1973 when the Full Commission entered an award covering disfigurement and permanent partial disability to the right arm but failed to make any finding of fact or award with respect to plaintiff's right foot. No statute of limitations runs against a litigant while his case is pending in court. Hanks v. Utilities Co., 210 N.C. 312, 186 S.E. 252 (1936); Watkins v. Motor Lines, supra. "Until all of an injured employee's compensable injuries and disabilities have been considered and adjudicated by the Commission, the proceeding pends for the purpose of evaluation, absent laches or some statutory time limitation." Hall v. Chevrolet Inc., 263 N.C. 569, 139 S.E.2d 857 (1965). Here, no laches are shown and no statutory bar exists. Plaintiff's alleged disability to his right foot seems to have been "lost in the shuffle."

For the reasons stated the decision of the Court of Appeals is reversed. The case is remanded to that court for further remand to the Industrial Commission. That agency will consider the evidence in the record with respect to plaintiff's right foot, and any additional evidence either party may desire to offer on the subject, make findings of fact thereon as to the amount of permanent partial disability, or loss of use, if any, of plaintiff's right foot and issue an award accordingly.

Reversed and remanded.