Cowart v. Skyline Restaurant

Court of Appeals of North Carolina

Cowart v. Skyline Restaurant

328 S.E.2d 874, 74 N.C. App. 560, 1985 N.C. App. LEXIS 3537

CourtCourt of Appeals of North Carolina

DecidedMay 7, 1985

DocketNo. 8410IC792

StatusPublished

This text of 328 S.E.2d 874 (Cowart v. Skyline Restaurant) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cowart v. Skyline Restaurant, 328 S.E.2d 874, 74 N.C. App. 560, 1985 N.C. App. LEXIS 3537 (N.C. Ct. App. 1985).

Pincite

Opinions

HEDRICK, Chief Judge.

The determinative question raised by this appeal is whether the Full Commission’s finding of fact, labeled a conclusion of law, that the plaintiff had a substantial change of condition within two years of the last and final payment of compensation, is supported by any evidence in the record. We hold that it is not. Indeed, the evidence in the record compels the finding that plaintiff did not have a substantial change of condition within two years of the last and final payment of compensation.

The Commission obviously based its ultimate finding on the testimony of Dr. McConnachie, plaintiffs treating physician. We realize that, based on his examination of the plaintiff one day before the hearing and more than two years and seven months after the final payment of compensation, Dr. McConnachie testified that plaintiff had a change of condition; he did not, however, testify as to when such change occurred. Moreover, the same doctor wrote [562]*562a letter to defendant Aetna on 17 December 1981 stating that “Mrs. Cowart has not had a change in her condition.” We point out that all of this occurred more than two years after the final payment of compensation.

In our opinion, no construction of the evidence contained in this record yields any support for the Commission’s ultimate finding and conclusion. The decision of the Full Commission, dated 22 February 1984, must be reversed and the proceeding remanded to the North Carolina Industrial Commission for the entry of an order dismissing plaintiffs claim for further compensation.

Reversed and remanded.

Judge Martin concurs. Judge Wells dissents.

Free access — add to your briefcase to read the full text and ask questions with AI

HEDRICK, Chief Judge.

The determinative question raised by this appeal is whether the Full Commission’s finding of fact, labeled a conclusion of law, that the plaintiff had a substantial change of condition within two years of the last and final payment of compensation, is supported by any evidence in the record. We hold that it is not. Indeed, the evidence in the record compels the finding that plaintiff did not have a substantial change of condition within two years of the last and final payment of compensation.

The Commission obviously based its ultimate finding on the testimony of Dr. McConnachie, plaintiffs treating physician. We realize that, based on his examination of the plaintiff one day before the hearing and more than two years and seven months after the final payment of compensation, Dr. McConnachie testified that plaintiff had a change of condition; he did not, however, testify as to when such change occurred. Moreover, the same doctor wrote [562]*562a letter to defendant Aetna on 17 December 1981 stating that “Mrs. Cowart has not had a change in her condition.” We point out that all of this occurred more than two years after the final payment of compensation.

In our opinion, no construction of the evidence contained in this record yields any support for the Commission’s ultimate finding and conclusion. The decision of the Full Commission, dated 22 February 1984, must be reversed and the proceeding remanded to the North Carolina Industrial Commission for the entry of an order dismissing plaintiffs claim for further compensation.

Reversed and remanded.

Judge Martin concurs. Judge Wells dissents.

Cite This Page — Counsel Stack

Bluebook (online)

328 S.E.2d 874, 74 N.C. App. 560, 1985 N.C. App. LEXIS 3537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cowart-v-skyline-restaurant-ncctapp-1985.