Dudley v. Downtowner Motor Inn

186 S.E.2d 188, 13 N.C. App. 474, 1972 N.C. App. LEXIS 2266

• Court: Court of Appeals of North Carolina
• Decided: February 2, 1972
• Docket: 7181C507
• Status: Published

Opinion

PARKER, Judge.

Appellant contends that since there was evidence to show that her injuries incapacitated her to perform certain essential duties' of the only gainful occupation for which she was qualified by prior work experience, the Industrial Commission erred in failing to find this as a fact and in failing to conclude therefrom that she was entitled to receive compensation for total incapacity under G.S. 97-29. The evidence in this case, however, makes the following express provisions of G.S. 97-31 controlling:

“In cases included by the following schedule the compensation in each case shall be paid for disability during the healing period and in addition the disability shall be deemed to continue for the periods specified, and shall be in lieu of all other compensation, including disfigurement, to wit:

:f; $ sji tfc

“(12) For the loss of a hand, sixty per centum of the average weekly wages during one hundred and seventy weeks.

*****

“(19) . . . The compensation for partial loss of or for partial loss of use of a member . . . shall be such pro portion of the periods of payment above provided for total loss as such partial loss bears to total loss. ...” (Emphasis added.)

“In passing upon an appeal from an award of the Industrial Commission, this Court is limited in its inquiry to two questions of law, namely: (1) Whether there was any competent evidence before the Commission to support its findings; and (2) whether the findings of fact of the Commission justify,its legal conclusions and decisions.” Snead v. Mills, Inc., 8 N.C. App. 447, 174 S.E. 2d 699. “In case the findings are insufficient upon which to determine the rights of the parties, the court may remand the proceeding to the Industrial Commission for additional findings,” Byers v. Highway Comm., 275 N.C. 229, 166 S.E. 2d 649, but “[i]f the findings of fact of the Industrial Commission are supported by competent evidence and are determinative of all the questions at issue in the proceeding, the court must accept such findings as final truth, and merely determine whether or not they justify the legal conclusions and decision of the commission.” Thomason v. Cab Co., 235 N.C. 602, 70 S.E. 2d 706.

There was here evidence to support the crucial findings of fact made by the Industrial Commission and these findings were determinative of all questions at issue in this case. On these findings' G.S. 97-31 became applicable and controlling, and the Commission correctly applied the provisions of that section in making its award in this case.

Morgan v. Furniture Industries, Inc., 2 N.C. App. 126, 162 S.E. 2d 619, cited by appellant, is not apposite. In that case there was evidence, which is lacking here, tending to show that the plaintiff was totally disabled and incapacitated emotionally and physically to engage in any gainful work as a result of a compensable injury.

The opinion and award appealed from is

Affirmed.

Judges Campbell and Morris concur.