Davis v. Sanford Const. Co., 392

• Decision Date: 11 December 1957
• Docket Number: No. 392,392
• Citation: 101 S.E.2d 40,247 N.C. 332
• Court: North Carolina Supreme Court
• Parties: Joseph Eugene DAVIS v. SANFORD CONSTRUCTION COMPANY, Inc., Employer, and Hartford Accident & Indemnity Company, Carrier

Page 40

101 S.E.2d 40

247 N.C. 332

Joseph Eugene DAVIS v. SANFORD CONSTRUCTION COMPANY, Inc., Employer, and Hartford Accident & Indemnity Company, Carrier

No. 392

Supreme Court of North Carolina.

Dec. 11, 1957

Leake & Phillips, Winston-Salem, for plaintiff, appellant.

King, Adams, Kleemeier & Hagan, Greensboro, for defendants, appellees.

BOBBITT, Justice.

Defendants state the question presented as follows: 'May compensation be awarded plaintiff for serious facial or head disfigurement or for serious bodily disfigurement (where plaintiff lost two teeth which were replaced with a bridge at defendants' expense) in absence of any evidence or finding of fact that plaintiff sustained serious disfigurement so that it handicapped him in obtaining employment or reduced his earning power?'

G.S. § 97-31 provides that, in addition to compensation paid for disability during the healing period, compensation is to be awarded for specified definite extended periods where the injury involves the loss of any part, member or organ of the body designated in subsections (a) through (t). This additional compensation 'shall be in lieu of all other compensation, including disfigurement.' The loss of a tooth or teeth is not one of the losses designated in subsections (a) through (t). Whether such loss should be so designated is a matter for the General Assembly, not for this Court.

Plaintiff bases his claim for compensation solely on alleged serious disfigurement. Prior to ch. 1221, Session Laws of 1957, enacted subsequent to plaintiff's injury, the pertinent provisions of G.S. § 97-31, applicable to plaintiff's claim, were as follows:

'(v) In case of serious facial or head disfigurement, the Industrial Commission shall award proper and equitable compensation not to exceed two thousand five hundred dollars. In case of enucleation where an artificial eye cannot be fitted and used, the Industrial Commission may award compensation as for serious facial disfigurement.

'(w) In case of serious bodily disfigurement, including the loss or permanent injury to any important organ of the body for which no compensation is payable under the preceding subsections, but excluding the disfigurement resulting from permanent loss or permanent partial loss of use of any member of the body for which compensation is fixed in the above schedule, the Industrial Commission may award proper and equitable compensation not to exceed two thousand five hundred dollars.'

While the amount of the award (up to $2,500) is for determination by the Commission under (v) as well as under (w), 'the statute makes it mandatory on the Commission to award proper and equitable compensation in case of serious facial or head disfigurement. This is not the case in regard to disfigurement of other parts of the body. The statute provides that the Industrial Commission shall have the power and the authority to make and award a reasonable compensation for any serious bodily disfigurement received by any employee within the meaning of this article, not to exceed $2,500.' Stanley v. Hyman-Michaels Co., 222 N.C. 257, 22 S.E.2d 570, 574. Thus, where 'serious bodily disfigurement' is involved, award of compensation therefor is not required but may be allowed or disallowed in the exercise by the Commission of its legal discretion. Branham v. Denny Roll & Panel Co., 223 N.C. 233, 238, 25 S.E. 2d 865.

In express terms, the Commission based its award of $450 on G.S. § 97-31(w). The factual basis therefor is that plaintiff 'suffered the loss of or permanent injury to an important organ of the body for which no compensation is payable under the provisions of G S 97-31(a) through (v).'

With reference to (w), it would seem that 'the loss or permanent injury to any important organ of the body for which no compensation is payable under the preceding subsections' may be the basis for a separate award only if it results in 'serious bodily disfigurement.' Such loss or permanent injury to an important organ of the body is not something different from or in addition to 'serious bodily disfigurement' but rather, as indicated by the word 'including,' an instance of what may constitute 'serious bodily disfigurement.' While (v) does not refer in express terms to the loss of or permanent injury to any important organ of the face or head, we think it clear that such loss, if in fact a 'serious facial or head disfigurement,' is compensable thereunder.

If plaintiff's loss of his two upper front teeth constitutes serious disfigurement within the meaning of G.S. § 97-31, it would seem inescapable that this would be a serious facial or head disfigurement' compensable under (v) rather than a 'serious bodily disfigurement' compensable under (w). In such case, plaintiff would be entitled under (v) to an award as a matter of right.

The crucial question is this: If plaintiff suffered the loss of two upper front teeth, a finding challenged by defendants on their appeal from the full Commission to the superior court, did plaintiff suffer thereby a 'serious facial or head disfigurement'? The full Commission did not make such finding of fact. Rather, it appears clearly that the full Commission considered (w) rather than (v) the pertinent provision and that it interpreted (w) as authority for an award for loss or permanent injury to any important organ of the body, for which no specified compensation for a definite period was payable under the preceding subsections of G.S. § 97-31, without regard to whether such loss constituted 'serious bodily disfigurement.' Hence, the full Commission's findings of fact were made under misapprehension as to the applicable law. It follows that the court below should have set aside the findings of fact and remanded the cause to the full Commission for consideration of the evidence in its true legal light. McGill v. Town of Lumberton, 215 N.C. 752, 3 S.E. 2d 324, and cases there cited.

It does not follow that the Commission cannot award compensation to plaintiff under (v) upon a supported finding of fact that he has suffered a 'serious facial or head disfigurement.' In that connection, we deem it proper to call attention to the matters stated below.

Under our decisions, there is a serious disfigurement in law only when there is a serious disfigurement in fact. A serious disfigurement in fact is a disfigurement that mars and hence adversely affects the appearance of the injured employee to such extent that it may be reasonably presumed to lessen his opportunities for remunerative employment and so reduce his future earning power. True, no present loss of wages need be established; but to be serious, the disfigurement must be of such nature that it may be fairly presumed that the injured employee has suffered a diminution of his future earning power. Stanley v. Hyman-Michaels Co., supra; Branham v. Denny Roll & Panel Co., supra; Larson, Workmen's Compensation Law, Vol. 2, sec. 58-32; also, see (dictum) Marshburn v. Patterson, 241 N.C. 441, 448, 85 S.E.2d 683.

In Stanley v. Hyman-Michaels Co., supra [222 N.C. 257, 22 S.E.2d 576], where this Court affirmed the order of the superior court remanding the cause to the Commission for the taking of evidence and for findings of fact as to disfigurement, Denny, J., speaking for the court, said: 'In awarding compensation for serious disfigurement, we think the Commission, in arriving at the diminution of earning power from disfigurement and making its award, should take into consideration the natural physical handicap resulting from the disfigurement, the age, training, experience, education, occupation, and adaptability of the employee to obtain and retain employment. What is reasonable compensation for serious disfigurement is for the determination of the Commission in each case in the light of the facts established by competent evidence.'

In Muchnick v. Susquehanna Waist Co., 124 Pa.Super. 194, 188 A. 413, 415, the Court said: 'The loss of front teeth has always been regarded as a serious matter.' Again: 'We have no doubt that, if average persons were asked whether they would classify the loss of two front teeth as important or trifling, the vast majority would refuse to classify the loss or blemish as trifling. Certainly there is no such unanimity of opinion to the contrary as would justify the court in saying that the finding of fact by the board is inherently wrong.' Again: 'The degree of the injury depended upon other factors than the loss of the two teeth, such as the condition of the other teeth and the consequent effect on the facial appearance. The previous appearance of the teeth as a whole as part of the head and face is a matter that is proper for the fact-finding body to consider, and situations may arise where the loss of a front tooth might not be so serious as to...