Hall v. Thomason Chevrolet, Inc., 384

• Court: North Carolina Supreme Court
• Writing for the Court: SHARP
• Citation: Hall v. Thomason Chevrolet, Inc., 139 S.E.2d 857, 263 N.C. 569 (N.C. 1965)
• Decision Date: 29 January 1965
• Docket Number: No. 384,384
• Parties: Theodore Ray HALL, Employee, v. THOMASON CHEVROLET, INC., Employer, Lumbermens Mutual Casualty Company, Carrier.

Page 857

139 S.E.2d 857

263 N.C. 569

Theodore Ray HALL, Employee, v. THOMASON CHEVROLET, INC., Employer, Lumbermens Mutual Casualty Company, Carrier.

No. 384.

Supreme Court of North Carolina.

Jan. 29, 1965.

Harold I. Spainhour, High Point, for plaintiff.

Jordan, Wright, Henson & Nichols and G. Marlin Evans, Greensboro, for defendants.

SHARP, Justice.

Plaintiff's evidence conclusively establishes that there has been no change in his physical or mental condition since the hearing on August 7, 1962, nor, indeed, since the hearing on January 8, 1962. Pratt v. Central Upholstery Co., 252 N.C. 716, 115 S.E.2d 27. The Commission's findings are correct and based upon competent evidence. This simple statement, however, does not dispose of this case.

Plaintiff's motion made April 23, 1963, to reopen the case 'on the basis of change of condition as provided in G.S. § 97-47' was mislabeled. Plaintiff was actually attempting to reopen the case on the grounds of newly discovered evidence. Under G.S. § 97-47 the Industrial Commission 'has the power, in a proper case, and in accordance with its rules and regulations, to grant a rehearing of a proceeding pending before it, and in which it has made an award, on the ground of newly discovered evidence.' Butts v. Montague Bros., 208 N.C. 186, 188, 179 S.E. 799, 801. 'The rules of the Industrial Commission, adopted pursuant to * * * the Workmen's Compensation Act, relative to the introduction of new evidence at a review by the Full Commission, are in accord with the decisions of this court as to granting new trials for newly discovered evidence.' Tindall v. American Furniture Co., 216 N.C. 306, 311, 4 S.E.2d 894, 897; accord, Brown v. Town of Hillsboro, 185 N.C. 368, 117 S.E. 41; 2 McIntosh, North Carolina Practice and Procedure § 1596(8) (2d ed. 1956).

On April 23, 1963, less than twelve months had elapsed since the latest award made under the Act; the case was therefore still pending. G.S. § 97-47; Butts v. Montague Bros., supra; Ruth v. Carolina Cleaners, Inc., 206 N.C. 540, 174 S.E. 445; Annot., Workmen's Compensation: time and jurisdiction for review, reopening, modification, or reinstatement of award or agreement, 165 A.L.R. 9, 291-293.

Instead of seeking a modification of the award for a change of condition, plaintiff seeks an award for permanent partial disability. Such an award, based on the injury to his brain, could have been made under G.S. § 97-30 for his permanent partial incapacity to work. No such award has been made. At the time of the hearing on August 7, 1962, which resulted only in an award in the amount of $2,100.00, under G.S. § 97-30(21) for external disfigurement of the head and face, plaintiff had made no attempt to go back to work. The reason, so he told the psychiatrist, was that he was afraid he would fall into a running engine. Nevertheless, according to Dr. Ames, he had reached maximum improvement in January 1962 and was then able to return to work. The cranioplasty, of course, temporarily interrupted this ability. Because he had not then tried to work since his injury, at the August hearing plaintiff was in no position to show the extent, if any, of the impairment of his wage-earning capacity, even though medical evidence had established permanent brain damage. The matter of the percentage of plaintiff's permanent partial disability attributable to the accident was a matter of speculation, both by plaintiff and by his doctors, who confirmed a permanent brain injury but confessed themselves powerless to evaluate it.

Under the Workmen's Compensation Act disability refers not to physical infirmity but to a diminished capacity to earn money. 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; Branham v. Denny Roll & Panel Co., 223 N.C. 233, 25 S.E.2d 865. The burden was on plaintiff as the claimant to show not only permanent partial disability, but also its degree. Henry v. A. C. Lawrence Leather Co., 231 N.C. 477, 57 S.E.2d 760. As he offered no evidence from which the Commission could make a finding with reference to such a disability, it made none. The Commission is not in a position to make a proper award until the extent of disability or permanent injury, if any, is determined. Pratt v. Central Upholstery Co., supra.

From the award of August 1962 plaintiff gave notice of appeal to the Superior Court, but failed to perfect it--doubtlessly because of the dearth of evidence. An award of the Commission is, if not reviewed in due time as provided in the Act, conclusive and binding as to all questions of fact. G.S. § 97-86. We do not face here, however, a situation in which the Commission has made a determination of the extent of plaintiff's permanent partial disability upon facts fully developed at the hearing. Although, in a proper case, such an award might be modified as a result of newly discovered evidence, here the Commission has made no findings and no award with reference to the claim plaintiff now makes.

The first specific evidence which the Commission heard tending to establish actual permanent partial disability, i. e., diminished capacity to earn money, came at the hearing on June 19, 1963, pursuant to plaintiff's motion for a modification of the award for a change of condition.

The evidence produced at that hearing makes a prima facie case of permanent partial disability resulting from the accident on November 11, 1959. Had plaintiff presented this proof at the hearing on August 7, 1962, the Commission would doubtlessly have found him entitled to an award under G.S. § 97-30. The award which plaintiff received on August 16, 1962, was for external facial or head disfigurement under G.S. § 97-31(21). Davis v. Sanford Construction Co., 247 N.C. 332, 101 S.E.2d 40. His failure to establish, at the hearing on August 7, 1962, the extent of permanent partial incapacity caused the claim to be disallowed. Does his failure to offer at that hearing any evidence tending to establish such permanent partial disability, after he had requested a determination and award for it, estop him from doing so now? In our view of the case, the Commission must answer this question when it reconsiders his motion as one for a rehearing upon newly discovered evidence. Under the circumstances of this case, we do not think that plaintiff, having only a ninth-grade education and suffering from a brain injury, should be precluded as a matter of law from presenting his claim for compensation to which he might be entitled; the claim, because of plaintiff's lack of evidence at the hearing, has not been adjudicated. In Sharmon v. Holliday & Greenwood, Ltd., [1904] 1 K.B. 235, 240, Lord Justice Mathew makes an observation applicable to plaintiff's situation here:

'(I)f the workman afterwards solves the question (of his capacity to work) by experiment, and, on his endeavoring to obtain employment, the result proves clearly that he is incapacitated, there seems to me to be no good reason why the county court judge should be prevented from going into the matter again and reviewing the award. It would, in my opinion, be most unjust if in such a case the doctrine of res judicata shold prevent the injured workman from applying for adequate compensation.'

It is a fundamental rule that...