Tucker v. Lowdermilk
| Decision Date | 02 February 1951 |
| Docket Number | No. 676,676 |
| Citation | 63 S.E.2d 109,233 N.C. 185 |
| Parties | TUCKER, v. LOWDERMILK et al. |
| Court | North Carolina Supreme Court |
Hughes & Hines, Greensboro, for plaintiff.
Smith, Wharton, Sapp & Moore, Greensboro, for defendants.
The defendants seriously contend the evidence is insufficient to support a finding that the plaintiff is disabled, and, if so, that such disability is the result of the accident of 26 March, 1948.
It is true the plaintiff has been examined and re-examined by a number of medical experts, and they are unable to find any definite and conclusive cause for the plaintiff's condition. But in the original agreement for compensation, these defendants agreed that plaintiff's disability resulted from an injury by accident arising out of and in the course of his employment, and his complaint then with respect to severe pain in his back and chest was similar to the condition which incapacitated him later. Moreover, one physician who examined the plaintiff on 5 April, 1948, and reported that in his opinion the plaintiff had no permanent injury, testified in the hearing below that he had changed his mind and is now of the opinion the plaintiff has some injury to his intevertebral disc. And, according to the testimony adduced in the hearing below, such an injury would not show in an X-ray.
We think the finding of the Commission in this respect must be upheld; since under our practice, if there is any competent evidence to support a finding of fact of the Industrial Commission, such finding is conclusive on appeal, even though there is evidence that would have supported a finding to the contrary. Creighton v. Snipes, 227 N.C. 90, 40 S.E.2d 612; Rewis v. New York Life Ins. Co., 226 N.C. 325, 38 S.E.2d 97; Hegler v. Cannon Mills Co., 224 N.C. 669, 31 S.E.2d 918; Kearns v. Furniture Co., 222 N.C. 438, 23 S.E.2d 310; Buchanan v. State Highway Com., 217 N.C. 173, 7 S.E.2d 383; Knight v. Ford Body Co., 214 N.C. 7, 197 S.E. 563; Swink v. Carolina Asbestos Co., 210 N.C. 303, 186 S.E. 258.
The more serious question presented for determination, is whether or not, under the facts and circumstances disclosed by the record, the plaintiff's claim for compensation was barred under the provisions of G.S. § 97-47, at the time he requested a hearing. This statute limits the right of review to twelve months from the date of the last payment of compensation pursuant to an award, except in cases in which only medical or other treatment bills are paid. In such cases review is limited to twelve months from the date of the last payment of such bills for medical or other treatment, paid pursuant to the provisions of the Compensation Act.
An agreement for the payment of compensation when approved by the Commission is as binding on the parties as an order, decision or award of the Commission unappealed from, or an award of the Commission affirmed upon appeal. G.S. § 97-87.
The Commission concluded as a matter of law that the plaintiff is entitled to additional compensation, notwithstanding he made no request for a hearing, or for additional compensation, until after the expiration of more than sixteen months from the date of the last payment of compensation. The Commission construed the agreement to pay compensation beginning from 13 April 1948, and continuing for necessary weeks to require the defendants to pay compensation to the claimant for his period of temporary total disability beginning 12 October 1948, which period coupled with his previous period of disability exceeded 28 days, making the defendants also liable for the deducted waiting period from 5 April through the 12th. G.S. § 97-28. Therefore, the Commission held the defendants had not made final payment for the 'necessary weeks' as required by the agreement.
In support of the above interpretation of the agreement executed by the parties and approved by the Commission, the Commission relies upon its Rule #13, promulgated pursuant to the authority contained in G.S. § 97-80(a), the pertinent part of which reads as follows: 'Compensation cannot be discontinued after...
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Wilkes v. City of Greenville
...presumption of ongoing disability arising based upon an "award of the Commission" dates back to at least 1951. Tucker v. Lowdermilk , 233 N.C. 185, 189, 63 S.E.2d 109, 112 (1951) ("However, if an award is made, payable during disability, and there is a presumption that disability lasts unti......
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Johnson v. SOUTHERN TIRE SALES AND SERVICE
...at the time his injury occurred." Watkins v. Motor Lines, 279 N.C. 132, 137, 181 S.E.2d 588, 592 (1971) (citing Tucker v. Lowdermilk, 233 N.C. 185, 63 S.E.2d 109 (1951)). Once disability is established, "the employer has the burden of producing evidence to rebut the claimant's evidence." Bu......
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Watkins v. Central Motor Lines, Inc.
...ends when the employee returns to work at wages equal to those he was receiving at the time his injury occurred. Tucker v. Lowdermilk, 233 N.C. 185, 63 S.E.2d 109 (1951). Here, plaintiff returned to work for the same employer on 2 January 1968 at the same wage he was receiving prior to his ......