Nash v. Conrad Industries, Inc.

303 S.E.2d 373, 62 N.C. App. 612, 1983 N.C. App. LEXIS 2987
CourtCourt of Appeals of North Carolina
DecidedJune 21, 1983
Docket8210IC776
StatusPublished
Cited by8 cases

This text of 303 S.E.2d 373 (Nash v. Conrad Industries, Inc.) 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
Nash v. Conrad Industries, Inc., 303 S.E.2d 373, 62 N.C. App. 612, 1983 N.C. App. LEXIS 2987 (N.C. Ct. App. 1983).

Opinions

WELLS, Judge.

Defendants’ Appeal

We note at the outset that defendants’ contentions on appeal relate only to the award of additional compensation to the plaintiff for permanent partial disability to her knees.

Defendants’ several assignments of error present the single question of whether it was error to allow into evidence the opinion testimony of a medical expert and, on the basis of that testimony, award plaintiff additional compensation.

Defendants argue that the Industrial Commission should not have considered any evidence respecting any disability to plaintiff’s knees. Defendants contend that plaintiff, in her Notice of Appeal of the Opinion and Award of the Hearing Commissioner and Application for Review by the Full Commission, did not contend that she was entitled to benefits for any disability to her knees and that any subsequent consideration by the Commission of evidence of plaintiff’s knee disability was therefore improper.

G.S. 97-85 provides that upon timely application for review of an award by the Commission, the Full Commission will review the award. In its review, the Commission may, upon good ground, [617]*617reconsider evidence, take additional evidence, rehear the parties and, if appropriate, amend the award. Id. The power to review and reconsider evidence and amend awards carries with it the power to modify or strike out findings of fact and conclusions made by the deputy commissioner or hearing commissioner, even though no exception has been made by the parties. Smith v. William Muirhead Construction Co., 27 N.C. App. 286, 218 S.E. 2d 717 (1975); Garmon v. Tridair Industries, Inc., 14 N.C. App. 574, 188 S.E. 2d 523 (1972).

In support of their contention, defendants cite West v. J. P. Stevens Co., 12 N.C. App. 456, 183 S.E. 2d 876 (1971), for the proposition that plaintiff’s failure to assert a right to compensation for disability to her knees in her Notice of Appeal and Application for Review bars the Commission from taking and considering any evidence regarding that disability. West involves the sufficiency of a motion for modification of an award for a change in conditions under G.S. 97-47. Unlike West, the case before us concerns an appeal from an order modifying an award for a change in conditions. Defendants do not contest the sufficiency of plaintiffs initial motion pursuant to G.S. 97-47 and West therefore does not apply.

The basis for plaintiffs appeal from the Hearing Commissioner’s Opinion and Award was that his findings of fact were not supported by competent evidence and the conclusions drawn from them were therefore improper. Further, plaintiff noted as error the failure of the Hearing Commissioner’s Opinion and Award to determine the issue of whether there had been a change of conditions. The Hearing Commissioner’s Opinion and Award made no finding of fact or conclusion as to any disability in plaintiff’s knees. Defendants are attempting to argue that the absence of any mention in the Opinion and Award of plaintiffs knee disability amounts by implication to a finding of fact that there was no disability to the knees for which any additional compensation was appropriate and that plaintiff’s appeal from that Opinion and Award should have excepted to this absence.

We disagree.

Plaintiff did except to the Hearing Commissioner’s finding of fact that plaintiff had a nineteen percent disability of her back on the grounds that it was not supported by any competent evi[618]*618dence. While plaintiff did not specifically mention the knee disability, plaintiff did except to the Hearing Commissioner’s finding of fact regarding the extent of plaintiffs disability. Compare Holder v. Neuse Plastic Co., 60 N.C. App. 588, 299 S.E. 2d 301 (1983). We hold that this, along with plaintiffs assignment of error that no determination of any change of conditions was made, is sufficient to allow for the consideration on appeal to the Full Commission of any and all evidence regarding plaintiffs disability.

Defendants also contend that plaintiffs failure to appeal the 23 July 1981 Opinion and Award of the Full Commission, in which was made no finding or conclusion regarding plaintiffs knees, bars any subsequent award of compensation for plaintiffs knee disability. The 23 July 1981 Opinion and Award expressly reserved final disposition of the matter pending the receipt of more complete evidence regarding any additional permanent partial disability plaintiff sustained as a result of the condition of her back. That Opinion and Award did not dispose finally of the matter. Rather, it contemplated further proceedings and was therefore interlocutory. Appeal from an order of the Industrial Commission lies only from a final order. Lynch v. M. B. Kahn Construction Co., 41 N.C. App. 127, 254 S.E. 2d 236 (1979), disc. rev. denied, 298 N.C. 298, 259 S.E. 2d 914 (1979). Appeal from an interlocutory order is improper. Defendants’ contention is without merit.

Since the testimony of defendants’ expert witness, Dr. Montgomery, with respect to the disability in plaintiffs knees was properly admitted and considered, the remaining question is whether there was sufficient evidence to support the Industrial Commission’s finding of fact and conclusion that plaintiff had sustained a compensable disability to her knees.

It is well established that the findings of the Industrial Commission, if supported by competent evidence, are conclusive and binding on appeal, even though the evidence could support a contrary finding. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E. 2d 682 (1982). The appellate court, on appeal from the Commission, is limited to considering whether the findings support the legal conclusions and decision of the Commission. Id.

[619]*619Upon a review of the record before us, we find that there was sufficient evidence to support the findings of the Industrial Commission as to plaintiffs permanent partial disability. The conclusions drawn therefrom are proper and support the Commission’s decision.

That portion of the Commission’s final order, dated 1 April 1982, awarding plaintiff additional compensation for permanent partial disability to her knees, will be affirmed.

Plaintiffs Appeal

We note at the outset that all of plaintiffs contentions on appeal relate to the failure of the Industrial Commission to award her compensation for temporary total disability from 8 June 1980 to 1 October 1981.

Plaintiffs assignments of error present the question of whether the record evidence supports the findings of fact made by the Commission with regard to plaintiffs temporary total disability.

Plaintiff argues that the evidence adduced by the Commission established that plaintiff was temporarily totally disabled from 2 May 1980 until 1 October 1981 and the Commission’s findings and conclusions limiting plaintiffs temporary total disability from 2 May to 8 June 1980 are not supported by competent evidence.

In support of her contention, plaintiff cites us to the case of Tucker v. Lowdermilk, 233 N.C. 185, 63 S.E. 2d 109 (1951), for the proposition that when an award of compensation is made payable during disability, there is a presumption that the disability lasts until the employee returns to work. Id. at 189, 63 S.E. 2d at 112. However, the award in Tucker was directed to be paid beginning 13 April 1948 “and continuing for necessary weeks.” Id.

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

Related

Allison v. Wal-Mart Stores
711 S.E.2d 475 (Court of Appeals of North Carolina, 2011)
Simpson v. J. R. Tobacco
North Carolina Industrial Commission, 2007
Pruett v. Pruett Floor Coverings
North Carolina Industrial Commission, 2002
Riggins v. Elkay Southern Corp.
510 S.E.2d 674 (Court of Appeals of North Carolina, 1999)
Hoyle v. Carolina Associated Mills
North Carolina Industrial Commission, 1997
Hoyle v. Carolina Associated Mills
470 S.E.2d 357 (Court of Appeals of North Carolina, 1996)
Sparks v. Sailors' Snug Harbor
320 S.E.2d 436 (Court of Appeals of North Carolina, 1984)
Nash v. Conrad Industries, Inc.
303 S.E.2d 373 (Court of Appeals of North Carolina, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
303 S.E.2d 373, 62 N.C. App. 612, 1983 N.C. App. LEXIS 2987, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nash-v-conrad-industries-inc-ncctapp-1983.