{ "id": 8522900, "name": "SIDNEY C. CRUMP, Plaintiff-Employee v. INDEPENDENCE NISSAN, Defendant-Employer, and EMPLOYERS MUTUAL CASUALTY COMPANIES, Defendant-Carrier", "name_abbreviation": "Crump v. Independence Nissan", "decision_date": "1993-11-16", "docket_number": "No. 9210IC982", "first_page": "587", "last_page": "593", "citations": [ { "type": "official", "cite": "112 N.C. App. 587" } ], "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.", "opinion_index": -1 }, { "cite": "329 S.E.2d 685", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "74 N.C. App. 685", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525952 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/74/0685-01" ] }, { "cite": "336 S.E.2d 643", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "644" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 212", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520448 ], "year": 1985, "pin_cites": [ { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0212-01" ] }, { "cite": "152 S.E.2d 533", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "269 N.C. 393", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563886 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/269/0393-01" ] }, { "cite": "400 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 270", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2545596, 2540340, 2540374, 2537916, 2545535 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0270-02", "/nc/328/0270-01", "/nc/328/0270-05", "/nc/328/0270-04", "/nc/328/0270-03" ] }, { "cite": "398 S.E.2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "100 N.C. App. 754", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527620 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/100/0754-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-30", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "421 S.E.2d 601", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "107 N.C. App. 758", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527987 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/107/0758-01" ] }, { "cite": "414 S.E.2d 771", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "105 N.C. App. 633", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524766 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/105/0633-01" ] }, { "cite": "152 S.E.2d 199", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "268 N.C. 720", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565339 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/268/0720-01" ] }, { "cite": "188 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1972, "pin_cites": [ { "page": "524", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "14 N.C. App. 574", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551245 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "576" } ], "opinion_index": 0, "case_paths": [ "/nc-app/14/0574-01" ] }, { "cite": "259 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571139, 8571075, 8571173, 8571107, 8571195 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0298-03", "/nc/298/0298-01", "/nc/298/0298-04", "/nc/298/0298-02", "/nc/298/0298-05" ] }, { "cite": "254 S.E.2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "41 N.C. App. 127", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548021 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/41/0127-01" ] }, { "cite": "374 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "613" }, { "page": "613", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 478", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527201 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "482" }, { "page": "482" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0478-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-85", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "opinion_index": 0 } ], "analysis": { "cardinality": 596, "char_count": 13135, "ocr_confidence": 0.785, "pagerank": { "raw": 2.2941205104151183e-07, "percentile": 0.7866147794716989 }, "sha256": "dc02c690551dc92319f3ef2e9f3b4e01199c49246f3d8d5ff0f592a73ef4642d", "simhash": "1:7711ef4b14316040", "word_count": 2109 }, "last_updated": "2023-07-14T15:48:17.524906+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WELLS and JOHNSON concur." ], "parties": [ "SIDNEY C. CRUMP, Plaintiff-Employee v. INDEPENDENCE NISSAN, Defendant-Employer, and EMPLOYERS MUTUAL CASUALTY COMPANIES, Defendant-Carrier" ], "opinions": [ { "text": "ARNOLD, Chief Judge.\nPlaintiff first assigns error to the full Commission\u2019s adoption of the deputy commissioner\u2019s opinion and award. Plaintiff argues that it is not sufficient for the full Commission to merely adopt the deputy commissioner\u2019s opinion and award and that if the record is not adequate to determine whether or not the deputy commissioner was mistaken in law and fact, then the case should be remanded for further fact finding by the Commission. We disagree.\nN.C. Gen. Stat. \u00a7 97-85 provides for the review of an award by the full Commission:\nIf application is made to the Commission within 15 days from the date when notice of the award shall have been given, the full Commission shall review the award, and, if good ground be shown therefor, reconsider the evidence, receive further evidence, rehear the parties or their representatives, and, if proper, amend the award ....\nThis statute clearly provides for review of a deputy commissioner\u2019s award by the full Commission upon application to the Commission.\nIn reviewing the deputy commissioner\u2019s award, the full Commission has the authority to determine the case from the written transcript of the hearing before the deputy commissioner and the record before it. Joyner v. Rocky Mount Mills, 92 N.C. App. 478, 374 S.E.2d 610 (1988). Alternatively, the full Commission shall reconsider the evidence, receive further evidence, or rehear the parties or their representatives \u201cif good ground be shown therefor.\u201d G.S. \u00a7 97-85. The question of whether \u201cgood ground be shown therefor\u201d is a matter within the sound discretion of the full Commission, and the full Commission\u2019s determination in that regard will not be reviewed on appeal absent a showing of manifest abuse of that discretion. Lynch v. M.B. Kahn Constr. Co., 41 N.C. App. 127, 254 S.E.2d 236, disc. review denied, 298 N.C. 298, 259 S.E.2d 914 (1979). Although the decision to take additional evidence is one within its sound discretion, the full Commission has the duty and responsibility to decide all matters in controversy between the parties, Joyner, 92 N.C. App. at 482, 374 S.E.2d at 613, and, if necessary, the full Commission must resolve matters in controversy even if those matters were not addressed by the deputy commissioner. See Garmon v. Tridair Indus., Inc., 14 N.C. App. 574, 188 S.E.2d 523 (1972). Therefore, when the transcript and record before the full Commission is insufficient to resolve all the issues, \u201cthe full Commission must conduct its own hearing or remand the matter for further hearing.\u201d Joyner, 92 N.C. App. at 482, 374 S.E.2d at 613 (emphasis added). Upon the record before it, after conducting a further hearing, or after remanding to a deputy commissioner for further hearing, \u201c[t]he Industrial Commission has authority to review, modify, adopt, or reject findings of a hearing commissioner . . . Garmon, 14 N.C. App. at 576, 188 S.E.2d at 524 (emphasis added). The full Commission, based on the findings of fact it has modified, adopted, or entered on its own, must then make conclusions of law as to all matters in controversy. Based upon its conclusions of law, the full Commission shall, \u201cif proper,\u201d amend the award.\nFollowing an appeal to this Court if the case is remanded to the Commission, the full Commission must strictly follow this Court\u2019s mandate without variation or departure. See D & W, Inc. v. City of Charlotte, 268 N.C. 720, 152 S.E.2d 199 (1966). Ordinarily upon remand the full Commission can comply with this Court\u2019s mandate without the need of an additional hearing, but upon the rare occasion that this Court requires an additional hearing upon remand the full Commission must conduct the hearing without further remand to a deputy commissioner. Vieregge v. N.C. State Univ., 105 N.C. App. 633, 414 S.E.2d 771 (1992). Such an additional hearing without remand to the deputy commissioner avoids an additional delay in cases where the resolution of a plaintiff\u2019s claim has already been long delayed. See Hardin v. Venture Constr. Co., 107 N.C. App. 758, 421 S.E.2d 601 (1992).\nIn this case, the full Commission adopted as its own the opinion and award of the deputy commissioner. Pursuant to a proper review of the award of the deputy commissioner, the full Commission could have adopted the deputy commissioner\u2019s findings and entered its own conclusions of law. The full Commission\u2019s adoption of the opinion and award here necessarily included an adoption of the deputy commissioner\u2019s findings of fact, and the full Commission\u2019s finding that no adequate ground existed to amend the award is tantamount to a conclusion of law. In substance, the full Commission has complied with N.C. Gen. Stat. \u00a7 97-85, and we hold that it did not err in adopting the opinion and award of the deputy commissioner.\nWe believe, however, that it would be a better practice for the full Commission, when reviewing an award of a deputy commissioner, to follow a format such as the following.\n)\n) OPINION AND AWARD\n) By\n) Howard Bunn\n) Chairman, N.C.\n) Industrial Commission\nThe award by Deputy Commissioner L.B. Shuping, Jr. filed 15 July 1993, is being reviewed by the Full Commission pursuant to N.C. Gen. Stat. \u00a7 97-85 upon application by (appealing party).\nThe undersigned have reviewed the award based upon the record of the proceedings before the deputy commissioner.\nThe appealing party has (or \u201chas not\u201d) shown good ground to\n(a) reconsider the evidence....;\n(b) receive further evidence..;\n(c) rehear the parties or their representatives..\nThe Full Commission adopts all findings of fact found by the deputy commissioner as follows: ....\n(Or \u201cThe Full Commission rejects the findings of fact found by the deputy commissioner and finds as follows:....\u201d)\n(Or \u201cThe Full Commission modifies the findings of fact found by the deputy commissioner as follows: . . . .\u201d)\n(Or \u201cBased upon further hearing by the Full Commission, the Full Commission finds as follows: . . . .\u201d)\n(Or \u201cThe Full Commission remands this case to the deputy commissioner for the following purpose: . . . .\u201d)\nBased upon the findings of fact as found by the deputy commissioner (or \u201cas modified\u201d or \u201cas found by the undersigned\u201d), the Full Commission concludes as follows: . . . .\nBased upon these conclusions of law, the Full Commission amends the award as follows: .... (or \u201chas determined there exists no basis for amending the award.\u201d)\nThis format, which is intended only as a guide, addresses all of the full Commission\u2019s duties and options under N.C. Gen. Stat. \u00a7 97-85. A clear, concise, and complete opinion and award by the full Commission, moreover, will enable this Court to better understand the full Commission\u2019s opinion and award without having to refer back to the deputy commissioner\u2019s decision.\nPlaintiff also argues that the Commission erred by finding that plaintiff was not entitled to additional benefits under N.C. Gen. Stat. \u00a7 97-30 for partial incapacity. We disagree.\nPlaintiff and defendant agreed on plaintiff\u2019s compensation and submitted the agreement to the Commission for its approval. The Commission approved the agreement, and it thereby became a final award. Brookover v. Borden, Inc., 100 N.C. App. 754, 398 S.E.2d 604 (1990), disc. review denied, 328 N.C. 270, 400 S.E.2d 450 (1991). When an employee accepts benefits from an agreement for compensation which was approved by the Commission, the employee may attack and have such agreement set aside only for fraud, misrepresentation, undue influence, or\" mutual mistake. Tabron v. Gold Leaf Farms, Inc., 269 N.C. 393, 152 S.E.2d 533 (1967). Plaintiff contends that defendant\u2019s failure to tell him about benefits provided under G.S. \u00a7 97-30 is sufficient reason to set aside the award. That argument was rejected in Brookover, and we reject it here as well. Plaintiff entered into an agreement, accepted all the benefits from it, and chose not to contest it until almost two years after entering the agreement. Under these circumstances, the Commission was correct in not setting aside the original award and in denying plaintiff additional benefits under G.S. \u00a7 97-30.\nPlaintiff finally argues that the Commission erred in concluding that he did not experience a change in condition. Our appellate courts have defined \u201cchange of condition\u201d as follows:\nChange of condition \u201crefers to conditions different from those existent when the award was made; and a continued incapacity of the same kind and character and for the same injury is not a change of condition . . . the change must be actual, and not a mere change of opinion with respect to a pre-existing condition.\u201d\nSawyer v. Ferebee & Son, Inc., 78 N.C. App. 212, 213, 336 S.E.2d 643, 644 (1985). Our role is to determine if the Commission\u2019s findings of fact are supported by competent evidence and if the conclusions are supported by the findings. Guy v. Burlington Indus., 74 N.C. App. 685, 329 S.E.2d 685 (1985). Plaintiff contends that the findings are not supported by competent evidence. We disagree. After reviewing the record, we found ample competent evidence to support the Commission\u2019s findings, and we hold that those findings support the conclusion that plaintiff did not experience a change of condition.\nThe Commission\u2019s opinion and award is affirmed.\nAffirmed.\nJudges WELLS and JOHNSON concur.", "type": "majority", "author": "ARNOLD, Chief Judge." } ], "attorneys": [ "Seth M. Bernanke for plaintiff appellant.", "Caudle & Spears, P.A., by Lloyd C. Caudle and Lisa M. Crotty, for defendant appellees." ], "corrections": "", "head_matter": "SIDNEY C. CRUMP, Plaintiff-Employee v. INDEPENDENCE NISSAN, Defendant-Employer, and EMPLOYERS MUTUAL CASUALTY COMPANIES, Defendant-Carrier\nNo. 9210IC982\n(Filed 16 November 1993)\n1. Master and Servant \u00a7 94 (NCI3d)\u2014 full Commission\u2019s adoption of deputy\u2019s opinion and award \u2014 no error \u2014 use of Court\u2019s format preferable\nIt was not error for the full Commission to adopt the opinion and award of the deputy commissioner, and the full Commission in substance complied with N.C.G.S. \u00a7 97-85; however, it is the better practice for the full Commission, when reviewing an award of a deputy commissioner, to follow a format such as that included in this opinion.\nAm Jur 2d, Workers\u2019 Compensation \u00a7 602.\n2. Master and Servant \u00a7 94.3 (NCI3d)\u2014 agreement for workers\u2019 compensation benefits contested after two years \u2014 refusal to set aside proper\nWhere plaintiff entered into an agreement for workers\u2019 compensation benefits, accepted all the benefits from it, and chose not to contest it until almost two years after entering the agreement, the Industrial Commission was correct in not setting aside the original award and in denying plaintiff additional benefits under N.C.G.S. \u00a7 97-30.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 639, 651.\n3. Master and Servant \u00a7 77.1 (NCI3d)\u2014 workers\u2019 compensation\u2014 no change in employee\u2019s condition\nEvidence was sufficient to support the Industrial Commission\u2019s conclusion that plaintiff did not experience a change of condition, even though plaintiff had been given a disability rating of 15\u00b0/o shortly after his injury and another doctor gave him a 30% disability rating two years after his injury.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 612, 652.\nAppeal by plaintiff from opinion and award of the North Carolina Industrial Commission filed 1 July 1992. Heard in the Court of Appeals 15 September 1993.\nOn 25 May 1987, plaintiff sustained a compensable injury to his back when he changed a tire and picked up a wheel. He was sixty-one years old and was a front-end specialist for defendant auto dealership at the time of his injury. On 30 June 1987, plaintiff saw Dr. James A. Pressly, an orthopedic surgeon. Dr. Pressly concluded that plaintiff suffered from spondylolisthesis and gave him a disability rating of 15%.\nPlaintiff returned to Independence Nissan on 21 September 1987 to serve in a supervisory position for less hours and less wages than before the accident. This arrangement continued until plaintiff retired on 19 March 1988, at which time he began receiving social security benefits. He continued to work part-time for defendant in a supervisory capacity for five hours a day, two days a week at a salary of $125 per week, the maximum amount he could earn without affecting his social security benefits.\nOn 29 September 1987, several days after returning to work in a supervisory role, plaintiff agreed on Form 26 to accept forty-five weeks of permanent disability compensation at the 15% rating found by Dr. Pressly beginning 31 August 1987. The Commission approved the award on 15 October 1987.\nOn 27 April 1989, plaintiff requested a hearing pursuant to N.C. Gen. Stat. \u00a7 97-47 on the ground that another doctor, who saw plaintiff in 1989, gave him a 30% disability rating. The new doctor commented that the discrepancy with Dr. Pressly\u2019s rating was \u201ca difference of opinion.\u201d The deputy commissioner who heard the evidence concluded that plaintiff did not sustain a change of condition within the meaning of G.S. \u00a7 97-47. The full Commission reviewed the record with reference to plaintiff\u2019s assignments of error, concluded there was no adequate ground to amend the award, and adopted the deputy commissioner\u2019s opinion and award as its own. From this opinion and award plaintiff appeals.\nSeth M. Bernanke for plaintiff appellant.\nCaudle & Spears, P.A., by Lloyd C. Caudle and Lisa M. Crotty, for defendant appellees." }, "file_name": "0587-01", "first_page_order": 617, "last_page_order": 623 }