Watkins v. Central Motor Lines, Inc.

• Decision Date: 10 June 1971
• Docket Number: No. 103,103
• Citation: 181 S.E.2d 588,279 N.C. 132
• Court: North Carolina Supreme Court
• Parties: J. R. WATKINS, Employee, v. CENTRAL MOTOR LINES, INC., Employer, and Michigan Mutual Liability, Carrier.

Page 588

181 S.E.2d 588

279 N.C. 132

J. R. WATKINS, Employee, v. CENTRAL MOTOR LINES, INC., Employer, and Michigan Mutual Liability, Carrier.

No. 103.

Supreme Court of North Carolina.

June 10, 1971.

Douglas, Ravenel, Hardy & Crihfield, by G. S. Crihfield, Greensboro, for plaintiff appellant.

Robert L. Scott, Charlotte, for defendant appellees.

HUSKINS, Justice:

Is plaintiff's permanent partial disability a 'change in condition' within the meaning of G.S. 97--47? If so, are defendants estopped to plead the statute in bar of plaintiff's claim for additional compensation? Answers to these questions are determinative on this appeal.

Where a claimant suffers an injury that results in temporary total disability followed by a specific disability compensable under G.S. 97--31, compensation for the specific disability is payable in addition to that awarded for temporary total disability. Rice v. Denny Roll & Panel Co., 199 N.C. 154, 154 S.E. 69 (1930). Plaintiff contends he is thus entitled to additional compensation for forty-four weeks to cover the twenty percent permanent partial disability of his right arm--a specific disability under G.S. 97--31(13). Defendants contend his claim for additional compensation is barred by G.S. 97--47 because (1) the claim arises from a change in plaintiff's condition and (2) he failed to notify the Industral Commission and make claim for it within twelve months from the date on which he received the last payment of compensation for his temporary total disability. These conflicting contentions require us to decide whether, on the facts in this case, plaintiff's permanent partial disability is a 'change in condition' within the meaning of G.S. 97--47.

G.S. 97--47, in pertinent part, provides: 'Upon its own motion or upon the application of any party in interest on the grounds of a change of condition, the Industrial Commission may review any award, and on such review may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in this article, and shall immediately send to the parties a copy of the award. No such review shall affect such award as regards any moneys paid 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. * * *' The Commission's authority under this statute is Limited to review of prior awards, and the statute is inapplicable in instances where there has been no previous final award. Biddix v. Rex Mills, 237 N.C. 660, 75 S.E.2d 777 (1953); Pratt v. Central Upholstery Co., 252 N.C. 716, 115 S.E.2d 27 (1960). In such cases, jurisdiction is retained by and remains in the Commission pending a termination of the case by final award. Branham v. Denny Roll & Panel Co., 223 N.C. 233, 25 S.E.2d 865 (1943). No statute runs against a litigant while his case is pending in court. Hanks v. Southern Public Utilities Co., 210 N.C. 312, 186 S.E. 252 (1936).

The term 'disability,' as used in the Workmen's Compensation Act, means incapacity because of injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of injury. G.S. 97--2(9). If an award is made by the Industrial Commission, payable during disability, there is a presumption that disability lasts until the employee returns to work and likewise a presumption that disability 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 injury. He has worked continuously since that time and lost no wages. On 18 January 1968 he received his last weekly compensation payment for the period during which he was disabled. He signed and received a copy of Form 28B which by its terms Closed the case (except for medical). That Form notified him that he would receive no further compensation payments and that if he claimed further benefits he must notify the Commission in writing within one year from date of receipt of his last compensation check. Form 28B was duly filed with the Commission. Thus, plaintiff's disability due to his injury presumptively ended on 18 January 1968. Nothing in the medical reports up to that time indicated any permanent partial disability. In a medical report dated 29 July 1967 (Plaintiff's Exhibit 8), Dr. Hickman of Fort Wayne, Indiana, stated that plaintiff's accident had not resulted in any permanent disability. If any of the parties anticipated at that time that plaintiff would not fully recover and that his injury would result in permanent partial disability, such fact is not reflected in the medical reports or in the Commission's findings of fact. Hence, the case was closed. 'A closing receipt purports to be a final settlement and indicates that no further compensation will be paid unless request for hearing for change of condition is made within a year from date of the receipt.' Pratt v. Central Upholstery Co., supra (252 N.C. 716, 115 S.E.2d 27). Any change in plaintiff's physical condition thereafter, entitling him to additional compensation under the Act, was a 'change in condition' within the meaning of that term as used in G.S. 97--47 and required him to apply to the Industrial Commission on or before 18 January 1969 for review of its previous award. 'Where the harmful consequences of an injury are unknown when the amount of compensation to be paid has been determined by agreement but subsequently develops, the amount of compensation to which the employee is entitled can be redetermined within the statutory period for reopening. It is a 'change in condition' as the term is used in the statute.' Smith v. Mecklenburg County Chapter American Red Cross, 245 N.C. 116, 95 S.E.2d 559 (1956). 'The fact that the change necessitates making an award in an entirely different category, as when an original award was one of temporary benefits for time loss and the award on reopening would be for total permanent disability, is no obstacle to reopening.' Larson, Workmen's Compensation, § 81.31. So it is here. We hold that plaintiff's evidence shows a change in condition and G.S. 97--47 applies.

The agreement between the parties on Form 21, approved by the Commission on 16 June 1967, provided for payment of compensation at the rate of $37.50 per week 'for necessary weeks.' This constituted an award by the Commission enforceable, if necessary, by a court decree. G.S. 97--87; Biddix v. Rex Mills, supra. This was followed by the execution and filing of Form 28B closing the case on 18 January 1968 when plaintiff received his last payment of compensation pursuant to that...