{ "id": 8525687, "name": "CLAIRE CLUGH, Employee-Plaintiff v. LAKEWOOD MANOR, Employer-Defendant and TRAVELERS INSURANCE COMPANY, Carrier-Defendant", "name_abbreviation": "Clugh v. Manor", "decision_date": "1991-05-07", "docket_number": "No. 9010IC904", "first_page": "757", "last_page": "761", "citations": [ { "type": "official", "cite": "102 N.C. App. 757" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7 97-47", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1985, "opinion_index": -1 }, { "cite": "227 S.E.2d 627", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "30 N.C. App. 570", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555090 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/30/0570-01" ] }, { "cite": "181 S.E.2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565922 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0132-01" ] }, { "cite": "282 S.E.2d 548", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "54 N.C. App. 176", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520930 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/54/0176-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-47", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1985, "opinion_index": 0 }, { "cite": "75 S.E.2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1953, "pin_cites": [ { "page": "782", "parenthetical": "citation omitted" }, { "page": "782", "parenthetical": "citation omitted" } ], "opinion_index": 1 }, { "cite": "237 N.C. 660", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617436 ], "weight": 2, "year": 1953, "pin_cites": [ { "page": "666", "parenthetical": "citation omitted" }, { "page": "666" } ], "opinion_index": 1, "case_paths": [ "/nc/237/0660-01" ] } ], "analysis": { "cardinality": 436, "char_count": 9075, "ocr_confidence": 0.754, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.7505599747321176 }, "sha256": "a45598788a9c4b0ed1ad84c1c792c9b1c886603f17b0c3003ddb386976b35d29", "simhash": "1:98e9276c3d3bd350", "word_count": 1447 }, "last_updated": "2023-07-14T21:20:04.252791+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WYNN concurs.", "Judge GREENE dissents." ], "parties": [ "CLAIRE CLUGH, Employee-Plaintiff v. LAKEWOOD MANOR, Employer-Defendant and TRAVELERS INSURANCE COMPANY, Carrier-Defendant" ], "opinions": [ { "text": "WELLS, Judge.\nInitially we note that the order from which defendants have appealed does not finally determine plaintiff\u2019s entitlement to compensation and is therefore interlocutory. There is no right of appeal from an interlocutory order of the Industrial Commission. See Fisher v. E.I. Du Pont De Nemours, 54 N.C. App. 176, 282 S.E.2d 548 (1981) and cases cited therein. Because we view the question presented appropriate for consideration on the merits, and because doing so will expedite the disposition of plaintiff\u2019s claim on its merits, we exercise our discretion to treat defendants\u2019 appeal as a petition for certiorari and allow it. Rule 21(a)(1) of the North Carolina Rules of Appellate Procedure.\nDefendants assign error to the Commission\u2019s order that this matter be set for hearing and conclusion that Deputy Commissioner Rush misapplied G.S. \u00a7 97-47. In setting this case for hearing on plaintiff\u2019s entitlement to further compensation, the Commission entered the following and dispositive conclusions of law:\n1. Though at its inception, plaintiff\u2019s case was one for which compensation and medical bills were paid, subsequent to Deputy Commissioner Taylor\u2019s award, plaintiff\u2019s case became one in which \u201conly medical or other treatment bills were paid.\u201d\n2. N.C.G.S. [\u00a7] 97-47 should be interpreted in the present tense rather than applying the statute to the case in its original stage, thereby allowing for a [\u00a7] 97-47 hearing. N.C.G.S. [\u00a7] 97-47.\nN.C. Gen. Stat. \u00a7 97-47 (1985) provides: last payment of compensation pursuant to an award under this Article, except that in cases in which only medical or other treatment bills are paid, no such review shall be made after 12 months from the date of the last payment of bills for medical or other treatment, paid pursuant to this Article.\nUpon its own motion or upon the application of any party in interest on the grounds of a change in 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 awardv No such review shall affect such award as regards any moneys paid but no such review shall be made after two years from the date of the\nDefendants contend that the proper application of G.S. \u00a7 97-47 bars review of plaintiff\u2019s original award because over two years lapsed between plaintiff\u2019s final compensation payment in January 1986 and the filing of her second request for a change of condition hearing. Defendants further contend that plaintiff\u2019s first request for change of hearing and Deputy Commissioner Taylor\u2019s opinion and award filed 5 February 1987 and awarding medical treatment only, does not alter the outcome because the 5 February 1987 opinion is a mere continuation of the same case.\nSince G.S. \u00a7 97-47 applies only whenever there has been a previous award of the Commission, Watkins v. Motor Lines, 279 N.C 132, 181 S.E.2d 588 (1971), an award pursuant to G.S. \u00a7 97-47 will always be a \u201cmere continuation of the same case\u201d as suggested by defendants. In effect, defendants contend that the time limitations set out in G.S. \u00a7 97-47 should always be measured from the original award. Defendants offer no authority to support this interpretation and we think such an interpretation is inconsistent with G.S. \u00a7 97-47\u2019s recognition that a change in condition may require a modification of a previous award in workers\u2019 compensation cases, either a previous award for compensation or a previous award for medical bills only. Defendants cite and rely on Shuler v. Talon Div. of Textron, 30 N.C. App. 570, 227 S.E.2d 627 (1976). We note that Shuler is resolved on the principle that plaintiff failed to show a change of condition and any expressions in Shuler regarding time limitations are dicta and not binding in this case.\nWe hold that the Full Commission correctly concluded that plaintiff timely filed her request for change of condition hearing and ordered this matter set for hearing.\nAffirmed.\nJudge WYNN concurs.\nJudge GREENE dissents.", "type": "majority", "author": "WELLS, Judge." }, { "text": "Judge GREENE\ndissenting.\nI disagree with the majority\u2019s conclusion that the plaintiff has filed a timely request for a change of condition hearing.\nThe last compensation payment made under the award in question occurred shortly after 15 January 1986. Therefore, the plaintiff had two years from that date to file a \u201c \u2018claim for further compensation upon an alleged change of condition.\u2019 \u201d Biddix v. Rex Mills, Inc., 237 N.C. 660, 666, 75 S.E.2d 777, 782 (1953) (citation omitted). On 12 December 1988, the plaintiff made a claim for further compensation based on changed conditions. This claim is therefore barred by N.C.G.S. \u00a7 97-47 because it was made more than two years from the date of the last payment of compensation.\nThis is not a case \u201cin which only medical or other treatment bills are paid. . . .\u201d N.C.G.S. \u00a7 97-47 (emphasis added). In such a case, the injured employee is entitled to seek an initial award of compensation within twelve \u201cmonths from the date of the last payment of bills for medical or other treatment. . . .\u201d N.C.G.S. \u00a7 97-47. To the contrary, this is a case where both compensation and medical expenses have been previously awarded, and therefore, the injured employee had two years \u201c \u2018from the last payment of compensation pursuant to the award in which to file [a] claim for further compensation upon an alleged change of condition.\u2019 \u201d Biddix, 237 N.C. at 666, 75 S.E.2d at 782 (citation omitted).", "type": "dissent", "author": "Judge GREENE" } ], "attorneys": [ "Waymon L. Morris for plaintiff-appellee.", "Roberts Stevens & Cogburn, P.A., by Louise Critz Root, for defendants-appellants." ], "corrections": "", "head_matter": "CLAIRE CLUGH, Employee-Plaintiff v. LAKEWOOD MANOR, Employer-Defendant and TRAVELERS INSURANCE COMPANY, Carrier-Defendant\nNo. 9010IC904\n(Filed 7 May 1991)\nMaster and Servant \u00a7 77.2 (NCI3d) \u2014 workers\u2019 compensation-second claim for change of condition \u2014 timeliness\nWhere both compensation and medical expenses were originally awarded to plaintiff on 17 July 1984, plaintiff received her last compensation payment pursuant to this award on 15 January 1986, plaintiff timely filed her first claim for a change of condition and was awarded only continued medical payments on 5 February 1987, plaintiff filed her second request for a change of condition hearing on 12 December 1988, and it was stipulated that defendants made medical payments to plaintiff within the twelve months preceding the filing of the second change of condition claim, it was held that plaintiff\u2019s second change of condition claim was timely filed because N.C.G.S. \u00a7 97-47 required that it be filed within twelve months from the date of payment of the last medical bills pursuant to the 5 February 1987 award rather than within two years from the last payment of compensation pursuant to the original award.\nAm Jur 2d, Workmen\u2019s Compensation \u00a7\u00a7 382-384, 482-484.\nJudge Greene dissenting.\nAPPEAL by defendants from opinion and award filed 16 April 1990 by the North Carolina Industrial Commission. Heard in the Court of Appeals 20 February 1991.\nThe record shows that following a compensable injury to plaintiff\u2019s back on 17 November 1983, all parties entered into an agreement, followed by a supplemental memorandum, for disability compensation. This agreement became an award of the Industrial Commission upon approval by the Commission on 17 July 1984. Plaintiff received her last compensation payment pursuant to this agreement and award immediately following 15 January 1986.\nPlaintiff , timely filed for her first change of condition hearing pursuant to N.C. Gen. Stat. \u00a7 97-47 (1985), Following a hearing on 20 August 1986, Deputy Commissioner Scott M. Taylor filed an opinion and award dated 5 February 1987 finding and concluding that plaintiff had not undergone a change of condition and was therefore not entitled to additional compensation. However, Deputy Commissioner Taylor awarded plaintiff continued medical expenses so long as those treatments effected a cure or gave relief or tended to lessen her disability. Neither party appealed from that order.\nPlaintiff filed for her second change of condition hearing on 12 December 1988. Defendants responded by asserting that plaintiff\u2019s requested hearing was untimely filed pursuant to G.S. \u00a7 97-47. The parties stipulated that defendants had made medical payments pursuant to Deputy Commissioner Taylor\u2019s 5 February 1987 opinion and award within twelve months preceding the 12 December 1988 second request for a change of condition hearing. Without reaching the merits of the case, Deputy Commissioner John Charles Rush found and concluded in an opinion and award filed 26 May 1989 that plaintiff\u2019s request was untimely filed and denied plaintiff\u2019s request.\nPlaintiff appealed the Deputy Commissioner\u2019s 26 May 1989 opinion to the Full Commission. In an opinion and award filed 16 April 1990, the Full Commission ruled that Deputy Commissioner Rush had misinterpreted G.S. \u00a7 97-47 and ordered that this matter be set for hearing. Defendants appeal.\nWaymon L. Morris for plaintiff-appellee.\nRoberts Stevens & Cogburn, P.A., by Louise Critz Root, for defendants-appellants." }, "file_name": "0757-01", "first_page_order": 787, "last_page_order": 791 }