West v. J. P. Stevens Co.
| Citation | 12 N.C.App. 456,183 S.E.2d 876 |
| Decision Date | 20 October 1971 |
| Docket Number | No. 7118IC525,7118IC525 |
| Court | Court of Appeal of North Carolina (US) |
| Parties | Sallie C. WEST, Employee, v. J. P. STEVENS COMPANY, Employer, and Liberty Mutual Insurance Company,Carrier. |
Smith & Patterson, by Norman B. Smith, Greensboro, for plaintiff-appellant.
Smith, Moore, Smith, Schell & Hunter, by Richmond G. Bernhardt, Jr., Greensboro, for defendant appellants-appellees.
The Commission concluded that plaintiff is now barred from asserting a claim for disability to the right leg because in the order of 15 March 1967, which was not appealed, it was determined that the injury to that leg did not result from an accident arising out of and in the course of her employment. Plaintiff contends this conclusion is erroneous, arguing that there was competent evidence from which the Commission could have found that the phlebitis in both legs resulted from the industrial accident of September 1965 in which only her left leg was injured.
Plaintiff's physician, Dr. Lusk, did not testify on direct examination as to any causative connection between the present condition in plaintiff's right leg and the industrial accident of September 1965. On cross-examination he stated:
'I am testifying as to a condition of Mrs. West's legs, right and left, without regard at this point to the cause of that condition.
She was hospitalized by Dr. William Wright for a fracture of the right ankle in late 1965, the injury having occurred in October 1965. She was readmitted to the hospital in early 1966 for phlebitis of both lower extremities. This was before I saw her for the first time. I would say that the immobility could well have been the probable cause of the phlebitis in the right leg; she had phlebitis in both legs subsequently. As to whether my testimony is that the phlebitic syndrome in both legs could or might have, and in all probability would have been caused by the fracture of the right leg and the resulting immobility of the patient in the hospital, yes; I would put more emphasis on the immobility having caused the phlebitic syndrome, than the fracture having caused this.'
Dr. Lusk's testimony, which is the extent of the evidence respecting causation, would not support a finding that the disability to plaintiff's right leg resulted from the industrial accident in September of 1965 in which only the left leg was injured. The immobility to which Dr. Lusk attributes plaintiff's right leg difficulties was occasioned by her hospitalization for the broken right leg. Commissioner Shuford's order, filed 15 March 1967, finds that the fall which caused this injury did not arise out of and in the course of plaintiff's employment. We agree with the Commission that, no timely appeal having been taken from that order, plaintiff is now barred from claiming benefits with respect to the right leg.
Plaintiff argues that the condition of the right leg is due to a progression to the right leg of phlebitis, which was formerly disabling only in the left leg. The evidence does not support this theory. According to Dr. Lusk, a 10 to 15% Permanent disability, caused by phlebitis, was alreday present in the right leg at the time of the hearing in June 1968. However, no award was made for this disability, and plaintiff did not contend, at least on appeal to this Court, that she was entitled to benefits for any disability to that leg. It is that disability which Dr. Lusk testified has now increased.
Plaintiff likens her case to that of Knight v. Ford Body Co., 214 N.C. 7, 197 S.E. 563. There blood poisoning, which had caused the plaintiff to lose the use of his arm, progressed to other parts of his body and caused total disability. An award for a change of condition was upheld. However, the award in that case contained a finding that the employee's condition 'at this time has been caused by the injury by accident suffered while employed.' The Supreme Court found that there was competent evidence to support this finding. Here, we find no evidence which would support a similar finding with respect to the present condition of plaintiff's right leg.
The portion of the order denying plaintiff's claim for disability to the right leg is affirmed.
Defendants have appealed from that portion of the Commission's order in which plaintiff was awarded additional compensation on the ground she has suffered a change of condition of the left leg.
Whether there has been a change of condition is a question of fact; whether the facts found amount to a change of condition is a question of law. Pratt v. Central Upholstery Co., 252 N.C. 716, 115 S.E.2d 27.
There is no finding in the order now before us that the actual physical condition of plaintiff's left leg has changed since the Commission found, from evidence presented in the June 1968 hearing, that plaintiff 'has a 12.5 percent permanent partial disability of her left leg.' The Commission's present assessment of disability of the left leg at 27.5% Is based upon its finding that the...
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Smith v. Liberty Mut. Ins. Co.
...273 N.C. 240, 159 S.E.2d 874 (1968); Keller v. Electric Wiring Co., 259 N.C. 222, 130 S.E.2d 342 (1963); West v. J. P. Stevens Co., 12 N.C.App. 456, 183 S.E.2d 876 (1971). There are various sections of Chapter 97 which the parties assert are relevant and material to the question under consi......
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Sperry v. Koury Corporpation, No. CO A09-391 (N.C. App. 1/19/2010), CO A09-391.
...(1937), or a change in the degree of disability even though claimant's physical condition remains unchanged. West v. Stevens Co., 12 N.C. App. 456, 461, 183 S.E.2d 876, 879 (1971). "A change of condition refers to different from those in existence when an award was originally made and a con......
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Kisiah v. W.R. Kisiah Plumbing, Inc.
...446-47, 439 S.E.2d at 189-90; Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982); West v. J.P. Stevens Co., 12 N.C.App. 456, 460, 183 S.E.2d 876, 879 (1971). Thus, absent a settlement with the employee, an award of temporary total disability cannot be undone without......
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McLean v. Roadway Exp., Inc.
..."A change in the degree of permanent disability is a change in condition within the meaning of G.S. 97-47." West v. Stevens Co., 12 N.C.App. 456, 461, 183 S.E.2d 876, 879 (1971). See also Knight v. Body Co., 214 N.C. 7, 197 S.E. 563 At the hearing before the Industrial Commission on 29 Apri......