Pratt v. Central Upholstery Co.

• Decision Date: 10 June 1960
• Docket Number: No. 600,600
• Citation: 252 N.C. 716,115 S.E.2d 27
• Parties: Lucille PRATT, Employee v. CENTRAL UPHOLSTERY CO., lnc., Employer, and Textile lnsurance Co., lnsurance Carrier.
• Court: North Carolina Supreme Court

Page 27

115 S.E.2d 27

252 N.C. 716

Lucille PRATT, Employee v. CENTRAL UPHOLSTERY CO., lnc., Employer, and Textile lnsurance Co., lnsurance Carrier.

No. 600

Supreme Court of North Carolina.

June 10, 1960

Harold I. Spainhour, High Point, for plaintiff, appellant.

Charles W. McAnally, High Point, for defendants, appellees.

MOORE, Justice.

There are no exceptions by any of the parties to the findings of fact by the Deputy Commissioner and they are final and conclusive. G.S. § 97-86. Winslow v. Carolina Conference Association, 211 N.C. 571, 582, 191 S.E. 403. Claimant's exception to the judgment below raises the question: Do the facts found support the judgment? Wyatt v. Sharp, 239 N.C. 655, 658, 80 S.E.2d 762; Rader v. Queen City Coach Co., 225 N.C. 537, 539, 35 S.E.2d 609. So our inquiry is whether the findings of fact support the legal conclusion that employee's claim for additional compensation is barred by G.S. § 97-47 and the award denying compensation.

The pertinent provisions of G.S. § 97-47 are as follows: 'Upon its own motion or upon the application of any party in interest on the grounds of a change in condition, the Industrial Commission may review any award, and on such review may make an award ending, diminishing, or increasing the compensation previously awarded * * * but no such review shall be made after twelve months from the date of the last payment of compensation pursuant to an award under this article * * *' (Emphasis ours).

Decision here requires answers to three questions: (1) Was there a full and final award of all compensation to which claimant was entitled by virtue of her initial claim? (2) If not, has claimant waived her right to a final award of compensation? (3) Do the facts found disclose a change of claimant's condition prior to her final request for hearing?

Defendants admitted liability and entered into an agreement with employee on I. C. Form 21 for payment of compensation. This agreement was approved by the Commission. When, pursuant to G.S. § 97-82, an agreement by employer and employee is submitted to the Commission for approval, the judicial authority of the Commission is invoked. In the process of considering and approving the agreement the Commission is engaged in a judicial act. An approved agreement becomes an award of the Commission enforceable by a court decree. G.S. § 97-87. Biddix v. Rex Mills, 237 N.C. 660, 663, 75 S.E.2d 777.

An examination of the agreement signed by employer and employee and approved by the Commission is necessary to an understanding of the problem here presented. The agreement was introduced in evidence both by claimant and defendants and its contents will be given the same effect as if stipulated. It admits liability on the part of employer, states that employee injured the 'lower end of spine,' and declares that payment of compensation at the rate of $32.50 per week shall begin 7 May 1957 and continue 'for legal weeks.' It shows that the first payment was received 20 May 1957. Paragraph 7 of the agreement provides spaces for showing the date of return to work and the wages earned upon return to work. These spaces are blank. The agreement was approved by the Commission 31 May 1957. G.S. § 97-82 provides that the memorandum of agreement (form 21) submitted to the Commission for approval shall be 'accompanied by a full and complete medical report.' No medical report was submitted to the Commission with the agreement. The agreement was approved by the Commission two months and nineteen days before claimant returned to work and without a medical report having been submitted. It was approved at a time when the post-coccygectomy condition of claimant had not been determined with sufficient definiteness to form the basis for a complete determination of all employee's rights to compensation. G.S. § 97-82 and I. C. Form 21 contemplate that the agreement will not be finally approved and compensation determined until the Commission has before it a full and complete medical report. 'An accident resulting in compensable injuries to an employee * * * gives only one right of action or claim to the employee, and any award made should, within the statutory limits, compensate for the disability, irrespective of the number of elements which go to make up the disability.' Smith v. Mecklenburg County Chapter American Red Cross, 245 N.C. 116, 119, 95 S.E.2d 559, 561. The Commission is not in a position to make a proper award, approve an agreement, until the extent of incapacity and permanent impairment, if any, are determined. The Commission did not have in hand a full and complete medical report until November 1958.

The approval of the agreement on 31 May 1957 was an adjudication that employer was liable for such compensation as employee was entitled to receive under the Act, the date when compensation began, the amount of weekly payments for temporary total disability, and nothing more. It was only a preliminary and interlocutory award. It does not purport to fix and determine the full amount of compensation to which employee was entitled. It does not contain sufficient information from which the Superior Court could have entered judgment in accordance with the provisions of G.S. § 97-87. The blank spaces in paragraph 7 of the agreement indicate that employee had not returned to work and the extent of partial incapacity and permanent disability, if any, had not been determined. After the approval of the agreement on 31 May 1957 the action was still pending for a final award. 'A claim for compensation lawfully constituted and pending before the commission may not be dismissed without a hearing and without some proper form of final adjudication. No statute of limitations runs against a litigant while his case is pending in court.' Hanks v. Southern Public Utilities Co., 210 N.C. 312, 320, 186 S.E. 252, 257.

It is true that there is a presumption that disability ends when the employee returns to work. Tucker v. Lowdermilk, 233 N.C. 185, 189, 63 S.E.2d 109. But this is a presumption of fact and not of law. This Court has held that a rebuttable presumption may not under certain circumstances be weighed against the evidence. In re Will of Wall, 223 N.C. 591, 596, 27 S.E.2d 728. The facts found conclusively establish in this case that employee had partial incapacity during the healing period after her return to work and partial permanent loss of use of her back. The parties are bound by these findings and the presumption is without weight.

The employer had knowledge from the date of claimant's return to work that she did not have capacity to earn her former wages. From the doctor's report of 12 August 1957 employer, carrier and the Commission knew that the healing period had not ended and the amount of permanent disability, if any, had not been determined. The inquiry relating to permanent disability in the doctor's report, I. C. Form 25, had been answered with three question marks. This could have but one meaning--the doctor had not yet been able to make the determination. From the doctor's report of 4 April 1958 employer and carrier knew that employee had ten percent permanent loss of the use of her back. Carrier withheld this information from claimant and the Commission for more than seven months. We conclude that carrier hoped to find acquittal in G.S. § 97-47.

Claima...