{ "id": 8552883, "name": "GEORGE A. SMITH, Employee, Plaintiff v. WILLIAM MUIRHEAD CONSTRUCTION COMPANY, INC., Employer; AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, Carrier, Defendants", "name_abbreviation": "Smith v. William Muirhead Construction Co.", "decision_date": "1975-10-15", "docket_number": "No. 7514IC365", "first_page": "286", "last_page": "291", "citations": [ { "type": "official", "cite": "27 N.C. App. 286" } ], "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": "64 S.E. 2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "233 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608280 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/233/0372-01" ] }, { "cite": "189 S.E. 114", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1937, "opinion_index": 0 }, { "cite": "211 N.C. 112", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624554 ], "year": 1937, "opinion_index": 0, "case_paths": [ "/nc/211/0112-01" ] }, { "cite": "181 S.E. 2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "593" } ], "opinion_index": 0 }, { "cite": "279 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565922 ], "year": 1971, "pin_cites": [ { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0132-01" ] }, { "cite": "162 S.E. 2d 619", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "2 N.C. App. 126", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551409 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc-app/2/0126-01" ] }, { "cite": "123 S.E. 2d 608", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "256 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571678 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/256/0175-01" ] }, { "cite": "200 S.E. 2d 32", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560564 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0126-01" ] } ], "analysis": { "cardinality": 520, "char_count": 11318, "ocr_confidence": 0.574, "pagerank": { "raw": 2.0712613097591258e-07, "percentile": 0.7577802798541536 }, "sha256": "5c29b5366bf260cdeffb072918e7aeebbf7d17b22b688ac4075f9189da9f445f", "simhash": "1:1ee5e9213c7add77", "word_count": 1856 }, "last_updated": "2023-07-14T22:44:36.927205+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Hedrick and Martin concur." ], "parties": [ "GEORGE A. SMITH, Employee, Plaintiff v. WILLIAM MUIRHEAD CONSTRUCTION COMPANY, INC., Employer; AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, Carrier, Defendants" ], "opinions": [ { "text": "BRITT, Judge.\nPlaintiff contends that the full commission erred in vacating the opinion and award of the hearing commissioner. Among other things, he argues that the evidence raised the issue of equitable estoppel and that the full commission failed to make findings of fact on the issue. We find merit in the argument.\nIn reviewing the opinion and award of the hearing commissioner, the commission was authorized by G.S. 97-85 to \u201creconsider the evidence\u201d and, if proper, to vacate the award. Lee v. Henderson and Associates, 284 N.C. 126, 200 S.E. 2d 32 (1973). The power of the commission to review and reconsider the evidence carries with it the power to modify or strike out findings of fact made by the hearing commissioner. Brewer v. Trucking Company, 256 N.C. 175, 123 S.E. 2d 608 (1962). While the commissioner is not required to make a finding as to each fact presented by the evidence, it is required to make specific findings with respect to crucial facts upon which the question of plaintiff\u2019s right to compensation depends. Morgan v. Furniture Industries, Inc., 2 N.C. App. 126, 162 S.E. 2d 619 (1968).\nNext, we consider the question of estoppel. Plaintiff contends defendants are estopped to plead the lapse of time because of representations made to him by Mrs. Coleman at the time he signed form 28B. He argues that Mrs. Coleman\u2019s statements not only induced him to sign the form but also lured him into believing that the lapse in time following the last statement of compensation would not affect his right to receive additional compensation.\nIn Watkins v. Motor Lines, 279 N.C. 132, 139, 181 S.E. 2d 588, 593 (1971), in an opinion by Justice Huskins, we find:\n\u201cThe law of estoppel applies in compensation proceedings as in all other cases.\u201d Biddix v. Rex Mills, supra. In McNeely v. Walters, 211 N.C. 112, 189 S.E. 114 (1937), Chief Justice Stacy, speaking for the Court, said: \u201cThe doctrine of equitable estoppel is based on an application of the golden rule to the everyday affairs of men. It requires that one should do unto others as, in equity and good conscience, he would have them do unto him, if their positions were reversed. ... Its compulsion is one of fair play.\u201d\nWhile the evidence in the instant case on the question of estoppel was minimal, we think it was sufficient to raise the issue and require a finding of fact on the issue. In his paragraph numbered 2, set out above, the hearing commissioner made a finding on the question. In the commission\u2019s paragraph numbered 2, set out above, it merely eliminated the hearing commissioner\u2019s finding and made no finding in its place. The conclusion that \u201cplaintiff has shown no conduct on the part of the defendant which constitutes estoppel\u201d is not sufficient to meet the requirement with respect to findings of fact.\nIt has been held that it would be contrary to the essence of the fact finding authority conferred by G.S. 97-84 to make it obligatory upon the commission to accord unquestioned credence even to uncontradicted testimony. Anderson v. Motor Company, 233 N.C. 372, 64 S.E. 2d 265 (1951). Nevertheless, when evidence is presented in support of a material issue raised, it becomes necessary for the commission to make a finding one way or the other.\nFor the reasons stated, the order appealed from is vacated and this cause is remanded to the Industrial Commission for further proceedings not inconsistent with this opinion.\nReversed and remanded.\nJudges Hedrick and Martin concur.", "type": "majority", "author": "BRITT, Judge." } ], "attorneys": [ "Eugene C. Brooks III, for plaintiff appellant.", "Smith, Moore, Smith, Schell <6 Hunter, by Richard G. Bernhardt, Jr., for defendant appellees." ], "corrections": "", "head_matter": "GEORGE A. SMITH, Employee, Plaintiff v. WILLIAM MUIRHEAD CONSTRUCTION COMPANY, INC., Employer; AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, Carrier, Defendants\nNo. 7514IC365\n(Filed 15 October 1975)\n1. Master and Servant \u00a7 94\u2014 duty of Industrial Commission to find facts\nWhile the Industrial Commission is not required to make a finding as to each fact presented by the evidence, it is required to make specific findings with respect to crucial facts upon which the question of plaintiff\u2019s right to compensation depends.\n2. Master and Servant \u00a7\u00a7 91, 94\u2014 filing of claim with Commission \u2014 delay\u2014 finding as to estoppel required\nEvidence was sufficient to require a finding of fact with respect to estoppel of defendant to plead the lapse of time between the date of plaintiff\u2019s receipt of his last payment for compensation for temporary total disability and plaintiff\u2019s request for a hearing before the Industrial Commission to determine his disability arising out of the accident in question where there was evidence that plaintiff\u2019s delay in requesting a hearing resulted from his reliance on representations made by defendant employer\u2019s secretary.\nAppeal by plaintiff from order of the North Carolina Industrial Commission entered 18 February 1975. Heard in the Court of Appeals 28 August 1975.\nThis cause involves a claim under the Workmen\u2019s Compensation Act and the record establishes the following facts:\nOn 22 October 1971, plaintiff sustained an injury by accident arising out of, and in the course of, his employment with defendant employer. On said date, plaintiff and defendant employer were subject to, and bound by, the provisions of the Workmen\u2019s Compensation Act and defendant insurance company was defendant employer\u2019s compensation carrier. Subsequently thereto, the parties entered into an agreement for the payment of compensation for temporary total disability, pursuant to which plaintiff was paid compensation for the period from 23 October 1971 to 22 November 1971. Within two weeks after 2 December 1971, plaintiff received Commission form 28B dated 2 December 1971. The form stated, among other things, that plaintiff had been paid $248 compensation and that he had returned to work on regular weekly wages on 23 November 1971. Item 14 of the form asks the question: \u201cDoes This Report Close the Case \u2014 including final compensation payment?\u201d The question was answered, \u201cYes.\u201d Thereunder, the following appears in the form:\n\u201cNotice to Employee: If the answer to Item No. 14 above is \u201cYes,\u201d this is to notify you that upon receipt of this form your compensation stops. If you claim further benefits, you must notify the Commission in writing within one (1) year from the date of receipt of your last compensation check.\u201d\nBy letter to the commission dated 25 February 1974, plaintiff, through his attorney, requested a hearing to determine his disability arising out of the 21 October 1971 accident. A hearing was held before Deputy Commisisoner Rush (hearing commissioner) at which time plaintiff gave testimony, summarized in pertinent part, as follows: In late November 1971, after he had returned to work, he was called to defendant employer\u2019s office where he talked with Mrs. Coleman who worked in the office. Mrs. Coleman delivered to him a check for disability payments and, at her request, he signed a written document. Plaintiff told Mrs. Coleman on that occasion that he had not recovered from his accident, that he was working with only one hand, and that he had not been discharged by his doctor. Mrs. Coleman told plaintiff he was signing for the checks; \u201cshe assured they\u2019d pay me for my total disability. Yes sir, temporary total disability.\u201d As to why plaintiff did not notify the Commission within one year after signing form 28B, he stated: \u201c . . . and as to why I did not notify the Commission from the time I received that slip, I was still under the care of the doctor over a year after that and so I assumed that if there was any \u2014 any reaction of the injury after a year after discharge, that was the opinion I had, because I was still under the doctor\u2019s care over a year from this date.\u201d Plaintiff had appointments to see his doctor on 25 July 1972 and 9 March 1978 and kept the appointments. He last saw his doctor on 30 March 1973.\nOn 9 September 1974, the hearing commissioner filed his-decision and award. In it he found as fact that plaintiff was. under the care of physicians for his shoulder condition from 22 October 1971 to 30 March 1973 at which time he was discharged and given a rating. The findings of fact then included the following :\n\u201c2. The plaintiff returned to work with the defendant employer on November 23, 1971. On December 7, 1971, the plaintiff was requested to report to the defendant\u2019s employer\u2019s office. When the plaintiff arrived at the office Patsy Coleman, a secretary of the defendant employer gave him his last check for temporary total disability compensation. She also gave the plaintiff a copy of Form 28B (Defendants\u2019 Exhibit 2) and requested the plaintiff sign a statement from the defendant carrier acknowledging receipt of Form 28B (Defendants\u2019 Exhibit 1). The plaintiff told Patsy Coleman that he was working with only one hand and was not discharged by his doctor. He asked Patsy Coleman about the future condition of his left shoulder. She advised the plaintiff that he was requested to sign the statement only for the temporary total disability compensation checks. The plaintiff relied on the conversation with Patsy Coleman and signed the statement from the defendant carrier (Defendants\u2019 Exhibit 1) without reading it.\n\u201c3. Sometime later the plaintiff read the \u2018Notice to Employee\u2019 on the bottom of the Form 28B (Defendants\u2019 Exhibit 2). Since the plaintiff was still under the care of a \u25a0 doctor and had confidence in and relied on the statements of Patsy Coleman, he interpreted the one year provision in the \u2018Notice to Employee\u2019 to mean one year after his discharge by his doctor. The plaintiff, therefore, did not notify the Industrial Commission in writing within one year from December 7, 1971, that he claimed further benefits under the Workmen\u2019s Compensation Act.\n* * *\n\u201c5. The conduct of the defendants amounts to equitable estoppel and the defendants are estopped to escape liability of the plaintiff\u2019s claim on account of the plaintiff\u2019s failure to notify the Industrial Commission in writing within the time required by statute.\u201d\nThe hearing commissioner concluded as a matter of law that the conduct of defendants constituted equitable estoppel and made an award in favor of plaintiff. Defendants appealed to the full commission who vacated the opinion and award of the hearing commissioner, except for stipulations, and made findings of fact including the following:\n\u201c2. The plaintiff returned to work with the defendant employer on November 23, 1971. On December 7, 1971, the plaintiff was requested to report to the defendant employer\u2019s office. When the plaintiff arrived at the office Patsy Coleman, a secretary of the defendant employer, gave him his last check for temporary total disability compensation. She also gave the plaintiff a copy of Form 28B (Defendants\u2019 Exhibit 2) and requested the plaintiff sign a statement from the defendant carrier acknowledging receipt of Form 28B (Defendants\u2019 Exhibit 1).\n\u201c3. The plaintiff did not notify the Industrial Commission in writing within one year from December 7, 1971, that he claimed further benefits under the Workmen\u2019s Compensation Act.\u201d\nThe full commission concluded that \u201c . . . plaintiff has shown no conduct on the part of the defendant which constitutes estoppel\u201d and denied plaintiff\u2019s claim.\nPlaintiff appealed to the Court of Appeals.\nEugene C. Brooks III, for plaintiff appellant.\nSmith, Moore, Smith, Schell <6 Hunter, by Richard G. Bernhardt, Jr., for defendant appellees." }, "file_name": "0286-01", "first_page_order": 314, "last_page_order": 319 }