Murray v. Nebel Knitting Co.

• Citation: 199 S.E. 609,214 N.C. 437
• Decision Date: 23 November 1938
• Docket Number: 536.
• Parties: MURRAY v. NEBEL KNITTING CO. et al.
• Court: United States State Supreme Court of North Carolina

199 S.E. 609

214 N.C. 437

MURRAY v. NEBEL KNITTING CO. et al.

No. 536.

Supreme Court of North Carolina

November 23, 1938

Appeal from Superior Court, Mecklenburg County; Luther Hamilton Judge.

Proceeding under the Workmen's Compensation Act by George Murray claimant, opposed by the Nebel Knitting Company, employer and the Maryland Casualty Company, insurance carrier. From a judgment of the superior court reversing Industrial Commission's award granting additional compensation claimant appeals.

Affirmed.

Wilson H. Price, Sr., of Charlotte, for appellant.

W. C. Ginter, of Charlotte, for appellees.

SCHENCK Justice.

This is a proceeding under the North Carolina Workmen's Compensation Act, Chapter 120, Public Laws 1929, and amendments thereto, North Carolina Code of 1935 (Michie) Section 8081(h) et seq. The claimant, George Murray, was injured on July 10, 1931, by an accident (a fall) arising out of and in the course of his employment by the Nebel Knitting Company, and suffered severe contusions and sprains of the right thigh and sprain of muscles of the lower back. The Maryland Casualty Company is the insurance carrier.

The claimant after proper hearings was awarded compensation by the commission for total disability for 88 weeks, and for 50 per cent partial disability for 212 weeks, making a total period of 300 weeks. A few weeks before the expiration of the 212 weeks, namely, on March 22, 1937, the claimant filed a petition to reopen the case and requested the commission to modify its former awards, and to find that the claimant had been totally disabled since he was first injured and to make an award allowing him full compensation for total disability for an additional 100 weeks. After hearings on May 18, 1937, and on February 25, 1938, the hearing Commissioner found the following facts:

"1. The parties to this cause are bound by the provisions of the Workmen's Compensation Act. The Maryland Casualty Company is the insurance carrier.

2. The agreement entered into by the parties to this cause and referred to in the history of this case on August 25, 1931, speaks the truth as to the occurrence of the accident, the average weekly wage, etc., and compensation under this agreement either for total or permanent partial disability has been paid in the amount of about $2100.00 and medical and hospital bills in the amount of about $185.00.

3. The plaintiff has been paid compensation for total disability for a period of 88 weeks. He has been paid compensation for a period of 212 weeks for partial disability, making a total of 300 weeks. Compensation for partial disability for some three to seven weeks, the amount unpaid when the claimant requested his last hearing on March 22, 1937, has been paid following the hearing at the request of the Commissioner, and without prejudice to the rights of the plaintiff since the defendants admitted owing him the few weeks balance and since the plaintiff needed the money. (Let's bear in mind that at the time of the last request for reopening in this case the plaintiff had due him just a few weeks compensation under former awards.)

4. From the physical point of view based on testimony and reports of doctors who have examined and treated this plaintiff, there has been no change in his physical condition. He is at this time 50 per cent disabled and has been 50 per cent disabled or about 50 per cent disabled during the past several years.

The plaintiff has made an effort on two occasions to work during the past four or five years. He was unable to do any heavy work and barely able to do the work undertaken. (He tried to cook for a short while and he picked up trash and did yard work for a Charlotte Lawyer on one occasion.)

5. The plaintiff has not been able since he was injured to carry on continuously a substantially gainful occupation. He has not been able to compete in the labor market with men physically sound. He has been handicapped at least to the extent of 50 per cent on account of his physical disability.

6. The plaintiff has earned only $6.00 at work during the past four or five years.

7. The plaintiff has not been as industrious in seeking work as was Mr. Smith in Smith v. Swift & Co., 212 N.C. 608, 194 S.E. 106.

8. There is evidence in the record that the plaintiff has been totally disabled except for the few days' work he did immediately following the accident, since he was injured in July, 1931. The greater weight of the evidence, however, from the medical experts persuades us to find that the plaintiff has been no more than 50 per cent disabled since May 1, 1931."

Upon the foregoing findings, the hearing Commissioner concluded as a matter of law: "Taking into consideration Smith v. Swift & Co., the plaintiff is again totally disabled in our opinion and we believe sufficient findings have been made to warrant such a conclusion. He hasn't earned any money. He can't compete in the labor market. He has been paid 300 weeks. We believe he is entitled to be paid compensation for total disability for an addditional 100 weeks, making the total 400 weeks provided in such cases under the provisions of our Act," and entered an award directing the defendants "to pay the plaintiff compensation for total disability beginning when the last payments were made for partial disability and to continue to pay for total disability not to exceed 400 weeks, less the 300 weeks which has already been paid."

Upon appeal by the defendants to it the Full Commission adopted the findings of fact and conclusions of law of the hearing Commissioner and affirmed the...