{ "id": 8570213, "name": "SARAH REBECCA PATTERSON BURTON, Widow, and Next Friend of WALTER PATTERSON BURTON, Minor Son, and BRUCE LEE BURTON, Minor Son of BOBBIE LUCIAN BURTON, Deceased, Employee, v. PETER W. BLUM & SON, Employer, TRAVELERS INSURANCE CO., Carrier", "name_abbreviation": "Burton v. Peter W. Blum & Son", "decision_date": "1967-06-20", "docket_number": "", "first_page": "695", "last_page": "700", "citations": [ { "type": "official", "cite": "270 N.C. 695" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "162 S.E. 198", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "202 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625044 ], "opinion_index": 0, "case_paths": [ "/nc/202/0172-01" ] }, { "cite": "98 S.E. 2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "246 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625913 ], "opinion_index": 0, "case_paths": [ "/nc/246/0274-01" ] }, { "cite": "106 S.E. 2d 573", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "249 N.C. 387", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615755 ], "opinion_index": 0, "case_paths": [ "/nc/249/0387-01" ] }, { "cite": "25 S.E. 2d 865", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "223 N.C. 233", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8604451 ], "opinion_index": 0, "case_paths": [ "/nc/223/0233-01" ] }, { "cite": "64 S.E. 2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "233 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608280 ], "opinion_index": 0, "case_paths": [ "/nc/233/0372-01" ] }, { "cite": "64 S.E. 2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "233 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610538 ], "opinion_index": 0, "case_paths": [ "/nc/233/0446-01" ] }, { "cite": "139 S.E. 2d 857", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "263 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572007 ], "opinion_index": 0, "case_paths": [ "/nc/263/0569-01" ] } ], "analysis": { "cardinality": 598, "char_count": 13024, "ocr_confidence": 0.529, "pagerank": { "raw": 2.409274747184923e-07, "percentile": 0.799776936802107 }, "sha256": "cf4ba45d4346d58baa359b7e2d42f7438c61a17a73ae9080904eec1171a5cdca", "simhash": "1:2329eb779126a447", "word_count": 2227 }, "last_updated": "2023-07-14T21:31:56.885447+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "SARAH REBECCA PATTERSON BURTON, Widow, and Next Friend of WALTER PATTERSON BURTON, Minor Son, and BRUCE LEE BURTON, Minor Son of BOBBIE LUCIAN BURTON, Deceased, Employee, v. PETER W. BLUM & SON, Employer, TRAVELERS INSURANCE CO., Carrier." ], "opinions": [ { "text": "LAKE, J.\nThe Workmen\u2019s Compensation Act authorizes the Industrial Commission to make an award of compensation on account of the death of an employee only in the event that \u201cdeath results approximately from the accident and within two years thereafter, or while total disability still continues and within six years after the accident.\u201d G.S. 97-38. The accident which the Commission found to be the proximate cause of the death occurred 20 June 1960. The death occurred 16 December 1962. The award of compensation was, therefore, authorized only if the employee\u2019s \u201ctotal disability\u201d resulting from the fall still continued at the time of death. It is not sufficient that death occurred while the employee was totally disabled, even though his then disability was the result of the accident. The statute, by its express terms, makes a continuing total disability from the time of the accident to the time of the death a condition precedent to the making of an award of death benefits where, as here, the death occurred more than two years after the accident.\nThe Act defines disability as follows: \u201cThe term \u2018disability\u2019 means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment.\u201d G.S. 97-2(9). This definition must be read into G.S. 97-38 in lieu of the word \u201cdisability.\u201d Thus, an award of compensation, on account of a death occurring more than two years after the accident, is authorized only if there is evidepce to support a finding that, from the accident to the death, the employee had a continuing incapacity, because of the injury, to earn the' wages which he was receiving at the time of his accident. \u201cUnder the Workmen\u2019s Compensation Act disability refers not to physical infirmity but to a diminished capacity to earn money.\u201d Hall v. Chevrolet Co., 263 N.C. 569, 139 S.E. 2d 857. Accord: Dail v. Kellex Corp., 233 N.C. 446, 64 S.E. 2d 438; Anderson v. Motor Co., 233 N.C. 372, 64 S.E. 2d 265.\nThe award in the present instance cannot be sustained on the basis of testimony by the widow that the deceased employee \u201cnever spent a well day\u201d after his accident and suffered pain and discomfort throughout the time when he was back at work. In Branham v. Panel Co., 223 N.C. 233, 25 S.E. 2d 865, Barnhill, J.. later C.J., speaking for the Court, said:\n\u201cThe statute provides no compensation for physical pain or discomfort. It is limited to the loss of ability to earn. * * *' However urgently he [the claimant employee] may insist that-he is \u2018not able to earn\u2019 his wages, the fact remains that he is-receiving now the same wages he earned before his injury. That fact cannot be overcome by any amount of argument. * * *\u2022 There is no \u2018disability\u2019 if the employee is receiving the same wages in the same or any other employment. That \u2018in the same5. employment he is not required to perform all the physical work theretofore required of him can make no difference.\u201d\nIn the present case, it is stipulated that from 28 December 1960 to 21 April 1962 the deceased employee worked regularly for the same employer at the same wage for which he worked prior to the accident, and again worked for the same employer at the same wage from 14 May 1962 to 27 October 1962. In the face of this stipulation, the Commission\u2019s further finding and conclusion that this employee\u2019s \u201ctotal disability\u201d continued from the accident to his death more than two years later cannot be sustained.\nAlthough a finding of fact by the Industrial Commission which is supported by some competent evidence is binding upon the superior court and upon this Court on an appeal, Osborne v. Ice Co., 249 N.C. 387, 106 S.E. 2d 573, \u201cwhen all the evidence and the inferences to be drawn therefrom result in only one conclusion, liability is a question of law subject to review.\u201d Hensley v. Cooperative, 246 N.C. 274, 98 S.E. 2d 289; Dependents of Poole v. Sigmon, 202 N.C. 172, 162 S.E. 198.\nThe award being beyond the authority of the Commission for the above reasons, it is unnecessary for us to determine whether there was sufficient evidence to support the Commission\u2019s finding of fact that the accident on 20 June 1960 was the proximate cause of the death, or to determine the competency of the expert testimony upon that question which was admitted over objection by the defendants.\nReversed.", "type": "majority", "author": "LAKE, J." } ], "attorneys": [ "W. Scott Buck for defendants.", "Martin and Martin for 'plaintiff." ], "corrections": "", "head_matter": "SARAH REBECCA PATTERSON BURTON, Widow, and Next Friend of WALTER PATTERSON BURTON, Minor Son, and BRUCE LEE BURTON, Minor Son of BOBBIE LUCIAN BURTON, Deceased, Employee, v. PETER W. BLUM & SON, Employer, TRAVELERS INSURANCE CO., Carrier.\n(Filed 20 June, 1967.)\n1. Master and Servant \u00a7 67\u2014\nWhen the death of the employee occurs more than two years after the accident, the award of compensation for the death is authorized only if there is evidence to support a finding that from the date of the accident to the time of death the employee had a continuing incapacity because of - the injury to earn the wages which he was receiving at the time of the accident. G.S. 97-38.\n2. Same\u2014\nDisability as used in the Workmen\u2019s Compensation Act means incapacity because of injury to earn the wages which the employee was receiving at the time of the injury in the same or other employment, G.S. 97-2(9), and therefore \u201cdisability\u201d as used in the Act refers not to physical injury but to diminished capacity to earn money, and such definition must be read into G.S. 97-38.\nS. Same\u2014\nWhere the parties stipulate that after the injury the injured employee worked for the same employer, in one instance for over thirteen months and in another instance for over five months, at his regular wages, such stipulation precludes a finding by the Commission that the employee\u2019s total disability continued without interruption from the date of the accident.\n4. Master and Servant \u00a7 93\u2014\nWhen all the evidence and inferences to be drawn therefrom permit but a single conclusion, liability under the Workmen\u2019s Compensation Act is a question of law subject to review.\nAppeal by defendants from Gambill, J., at the 26 September 1966 Civil Session of Forsyth.\nThe defendants appeal from a judgment affirming an award by the North Carolina Industrial Commission under the Workmen\u2019s Compensation Act on account of the death of Bobbie Lucian Burton, husband and father of the plaintiffs.\nIt was stipulated before the Commission that:\nThe deceased was an employee of Peter W. Blum & Son at the regular wage rate of $90.00 per week on 20 .Tune 1960, w\u2019hen he sustained injuries by an accident arising out of and in the course of his employment. While at work on that date, he fell from the roof of a two story building and sustained a severe fracture of the right hip and multiple fractures in the pelvic region.\nThe defendants, who are the employer and the employer\u2019s insurance carrier under the Workmen\u2019s Compensation Act, entered into an agreement with Burton, which was approved by the Industrial Commission on 15 July 1960, whereby they agreed to pajr him compensation for total disability as the result of this accident. Compensation was so paid until 28 December 1960, on which date Burton returned to work for the same employer at the same wage rate, $90.00 per week. On 31 January 1961, Burton, the employer and the insurance carrier entered into a further agreement, approved by the Industrial Commission, for the payment to Burton of compensation for 139% weeks on account of permanent partial disability of his right hand and right leg as the result of the injuries sustained on 20 June 1960. Compensation for this partial permanent disability was paid, in accordance with this agreement, from Burton\u2019s return to work on 28 December 1960 to his death on 16 December 1962.\nBurton worked regularly in the same employment from his return to it on 28 December 1960 through the week ending 14 April 1962. He was absent from work, due to total disability, for the next four weeks. He then returned to work at the same wage and continued to work regularly through the week ending 20 October 1962. He did not work the next two weeks due to total disability. He returned to work on 5 November 1962 and worked regularly at the same wage through 8 December 1962. From then until his death on 16 December 1962, he was totally disabled.\nBurton consulted his physician at the latter\u2019s office six times during the year 1961, and twice in February, three times in March, four times in April, three times in May, once in July, once in October and once in December 1962. He was hospitalized once in April, twice in October and once in December 1962, his death occurring during the last of these confinements in the hospital.\nThe Industrial Commission found as facts, among other findings of fact, that Burton\u2019s death \u201cresulted approximately from the injury by accident arising out of and in the course of his employment with defendant employer on June 20, 1960; that such injury by accident was the proximate cause, that is, an operating and efficient cause, without which death would not have occurred\u201d; and that \u201cthe death of the deceased employee occurred more than two years and within six years after said injury by accident while total disability still continued.\u201d The Commission accordingly issued its award directing that the defendants pay compensation to the widow for the use of herself and of her two minor children, on account of the death of Burton, in the amount and for the period prescribed in the Workmen\u2019s Compensation Act.\nTestimony by the widow was to the effect that- Burton was in good health prior to the accident on 20 June 1960, but \u201cnever spent a well day after that.\u201d She testified:\n\u201cHe had phlebitis off and on and he couldn\u2019t go to church like he wanted to and sit there long on account of that leg, swells, being bruised all on the inside. * * * He had to take drugs the whole time to keep himself going what little he did do. And he couldn\u2019t rest at night like he ought to and had to keep his leg up on a pillow to elevate it at times. These complaints that I have told you about continued from the date of his fall on June 20 up to his death in December of 1962.\u201d Medical testimony was to the effect that:\nIn 1961, Burton consulted his regular, personal physician for pain in his legs, swelling, difficulty in walking, pain in his hip and pain in the lower abdomen. During his original hospitalization as the result of his fall, he developed a pulmonary embolism from thrombosis of the deep pelvic veins. At the times that he consulted his physician in 1961, he was still showing evidence of the thrombophlebitis and of vascular- insufficiency.\nWhen the abdominal pains continued and became more persistent in April 1962, his physician and a surgeon, then called in for consultation, advised an exploratory laparotomy, thinking they would find acute appendicitis. The operation was performed and the appendix removed but \u201cthe pathology did not bear out acute appendicitis.\u201d He continued to have pain but not so much as prior to the operation.\nIn October 1962, the abdominal pain again became severe. He was again hospitalized for observation. Adhesions and gall bladder disease were considered as possible explanations of the pain, but it was determined to observe him further prior to additional surgery. On 10 December 1962, he was readmitted to the hospital with severe abdominal pain. An extensive exploratory abdominal operation was performed by a different surgeon on 12 December 1962. The omentum was removed, having been found considerably swollen, and certain adhesions were corrected, but the suspected difficulties were not discovered and the cause of the pain was not determined. For two days he appeared to be progressing normally but suddenly developed kidney failure and died two days later. The immediate cause of death was uremia due to acute kidney failure. No evidence of kidney disorder was observed prior to two days before the death.\nThe physician and the surgeon who performed the final operation each testified that in his opinion the injury by the fall on 20 June .1960 could have been the cause of the death. However, each testified in effect that this was speculation and something which he could not prove. Neither expressed any opinion as to the cause of the kidney failure or as to the cause of the acute abdominal pain. The surgeon testified, \u201cThe breakdown which this man suffered during the past, the last several hours of his life, partciularly the last day to two days, apparently came as a complete surprise.\u201d\nAt the time of the hospitalization following the fall on 20 June 1960, it was first suspected that there was \u201cpossible bladder\u201d dam,age but no evidence of such injury was then discovered. The final report of the then attending physician to the Industrial Commission, dated 17 January 1961, evaluated the permanent partial disability of the right leg and of the right hand, and stated, \u201cNo further medical care is indicated,\u201d and that Burton had \u201creturned to work on 12-28-60.\u201d\nW. Scott Buck for defendants.\nMartin and Martin for 'plaintiff." }, "file_name": "0695-01", "first_page_order": 735, "last_page_order": 740 }