{ "id": 4740836, "name": "IRVIN FRANK HILL, Employee-Plaintiff v. HANES CORPORATION, Employer, and AETNA LIFE & CASUALTY INSURANCE COMPANY, Carrier-Defendants", "name_abbreviation": "Hill v. Hanes Corp.", "decision_date": "1987-03-04", "docket_number": "No. 144A86", "first_page": "167", "last_page": "180", "citations": [ { "type": "official", "cite": "319 N.C. 167" } ], "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": "339 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": -1 }, { "cite": "79 N.C. App. 67", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519415 ], "year": 1986, "opinion_index": -1, "case_paths": [ "/nc-app/79/0067-01" ] }, { "cite": "264 S.E. 2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "907", "parenthetical": "1980" } ], "opinion_index": 0 }, { "cite": "46 N.C. App. 173", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549659 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/46/0173-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-31", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "348 S.E. 2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4738742 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0089-01" ] }, { "cite": "246 S.E. 2d 743", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "747" } ], "opinion_index": 0 }, { "cite": "295 N.C. 527", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564809 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0527-01" ] }, { "cite": "324 S.E. 2d 214", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "312 N.C. 538", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4751019 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/312/0538-01" ] }, { "cite": "288 S.E. 2d 380", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "304 N.C. 725", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571202, 8571266, 8571300, 8571179, 8571230 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/304/0725-02", "/nc/304/0725-04", "/nc/304/0725-05", "/nc/304/0725-01", "/nc/304/0725-03" ] }, { "cite": "282 S.E. 2d 539", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "54 N.C. App. 144", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520579 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/54/0144-01" ] }, { "cite": "303 S.E. 2d 612", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "617" } ], "opinion_index": 0 }, { "cite": "63 N.C. App. 48", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523829 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/nc-app/63/0048-01" ] }, { "cite": "38 S.E. 2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1946, "pin_cites": [ { "page": "100" } ], "opinion_index": 0 }, { "cite": "226 N.C. 325", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618886 ], "year": 1946, "pin_cites": [ { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/nc/226/0325-01" ] }, { "cite": "144 S.E. 2d 3", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "265 N.C. 329", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575220 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/265/0329-01" ] } ], "analysis": { "cardinality": 997, "char_count": 29063, "ocr_confidence": 0.813, "pagerank": { "raw": 2.4034700265440117e-07, "percentile": 0.7991562442443556 }, "sha256": "a8eca21438393cb9a94707e275f78fac5c040c5efa50b16b3e698c9580c2b490", "simhash": "1:3c6b826f35bbc4f0", "word_count": 4717 }, "last_updated": "2023-07-14T21:18:01.553874+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice Mitchell did not participate in the consideration or decision of this case." ], "parties": [ "IRVIN FRANK HILL, Employee-Plaintiff v. HANES CORPORATION, Employer, and AETNA LIFE & CASUALTY INSURANCE COMPANY, Carrier-Defendants" ], "opinions": [ { "text": "EXUM, Chief Justice.\nThe employee-plaintiff, Irvin Frank Hill, sustained a compensable injury by accident while working for his employer, Hanes Corporation, on 12 March 1979 when he slipped, fell, and struck his upper back between the shoulder blades on the corner of a machine. As a result he was temporarily totally incapacitated for work. He later developed a \u201c20 percent disability in the usage of both legs\u201d caused by a thickening of the membrane surrounding his spinal cord at the point of impact. Finally he developed a mental depression, which the Industrial Commission found totally incapacitated him for work and was causally related to his earlier injury.\nThe Commission awarded Hill compensation under N.C.G.S. \u00a7 97-29 for temporary total disability due to his back injury; under the scheduled injury statute, N.C.G.S. \u00a7 97-31(15), for a 20 percent loss of use of both legs; and under N.C.G.S. \u00a7 97-29 for total disability caused by depression for so long as the depression persisted. The Court of Appeals affirmed. It also denied defendants\u2019 motion for a new hearing by the Commission. This motion, filed with the Court of Appeals pending that Court\u2019s decision on the merits, was made pursuant to Civil Procedure Rule 60(b)(2) (newly discovered evidence) and (6) (\u201cany other reason justifying relief . . .\u201d).\nQuestions presented are whether the Court of Appeals correctly concluded: (1) there was evidence sufficient to support the Commission\u2019s finding that Hill\u2019s depression totally incapacitated him for work and was causally related to his physical injuries suffered on the job; (2) the Commission properly awarded compensation under both N.C.G.S. \u00a7 97-31, the scheduled injury statute, and N.C.G.S. \u00a7 97-29 for total disability due to depression; and (3) defendants\u2019 Rule 60(b) motion should have been denied. We think the Court of Appeals made the correct conclusion in the first two instances and affirm its decision on these issues. We conclude that it erred in addressing defendants\u2019 Rule 60(b) motion, vacate its denial of that motion, and remand the motion to the Court of Appeals for further remand to the Industrial Commission for initial determination.\nI.\nAll parties agree that the employee, Irvin Frank Hill, sustained a compensable injury by accident while working for his employer, Hanes Corporation, on 12 March 1979 when he slipped, fell, and struck his upper back between the shoulder blades on the corner of a machine. Taking into consideration the unchallenged evidence before and findings of the Industrial Commission, there seems to be no dispute between the parties as to the following facts: Hill\u2019s accident on 12 March 1979 caused him to experience pain in the back, but he continued to work until worsening pain in his back caused him to consult with Dr. Charles Gunn, Jr., who was employed by Hanes and whose duties included caring for patients at the plant where Hill worked. Dr. Gunn, upon taking a history of Hill\u2019s injury and noting Hill\u2019s complaint of pain in the thoracic, or chest, area of his spine, advised plaintiff to stop working. Following Dr. Gunn\u2019s advice, plaintiff did not return to work until 11 April 1979. He continued to work until 9 July 1979 when he began to experience such weakness in his legs that it became difficult for him to stand. He left work on 9 July 1979 and has done no work for wages since that date.\nBy agreements dated 18 April 1979 and 18 December 1979 defendants voluntarily agreed to pay plaintiff the sum of $156.79 per week (two-thirds of Hill\u2019s average weekly wage of $235.19) for the \u201cnecessary weeks\u201d for \u201ctemporary total\u201d disability.\nThere also seems to be no dispute in the case regarding the nature of Hill\u2019s physical injuries. The blow to his back caused a thickening of the membranes around his spinal cord. An October 1979 myelogram \u201crevealed almost complete obstruction\u201d of the space around the spinal cord at thoracic vertebrae 9-10. This insult to the spinal cord caused Hill to experience loss of sensation and weakness in both legs. Surgery to relieve the condition performed in October 1979 resulted in little improvement. According to the testimony of the neurosurgeon who performed the October 1979 surgery and who followed Hill as a patient through 1980, the weakness in Hill\u2019s legs in November 1980 so limited \u201chis ability to perform his original job . . . that I believe him to be totally disabled. I do believe that Mr. Hill could theoretically perform some type of activities, particularly on the basis of part-time work and not full time, since he feels very easily exhausted and tired after most or any activity.\u201d The neurosurgeon rated Hill as having a 20 percent loss of use of each leg.\nThe neurosurgeon recommended that Hill be given a psychological evaluation, and on 8 November 1981, Hill came under the care of Dr. Branham, a psychiatrist. Dr. Branham diagnosed Hill as suffering from depression. According to Dr. Branham, Hill\u2019s depression manifested itself in insomnia, difficulty in concentration, accentuation of pain, psychomotor slowing and loss of interest in activities he formerly found enjoyable. Dr. Branham\u2019s testimony will be discussed in more detail below.\nThe Commission made unchallenged findings (paraphrased except where quoted) as follows:\n1. Plaintiff sustained an injury by accident on 12 March 1979 when he slipped, fell, and struck his back between the shoulders, experiencing back pain.\n2. His pain worsened, but he returned to work on 11 April 1979 and continued to work through 9 July 1979. He has done no work for wages since that date.\n3. While under the care of Dr. Gunn in August 1979 he complained of back pain and loss of feeling, burning sensations and weakness in his lower extremities.\n4. He was seen by Drs. Griffin and Jackson for evaluation of lower extremity weaknesses. Dr. Jackson hospitalized him in October 1979 for a myelogram. The myelogram revealed complete obstruction at thoracic vertebrae 9-10, for which plaintiff underwent a bilateral exploratory laminectomy with decompression of arachnoidal adhesions and blockage. The surgery was performed by Dr. Ernesto de la Torre to whom plaintiff had been referred by Dr. Jackson.\n5. By 1 November 1980 plaintiffs \u201cphysical condition\u201d had stabilized and he had reached \u201cmaximum medical improvement physically. His physical condition has remained essentially unchanged since that date.\u201d Plaintiff has sustained a 20 percent permanent partial disability of each leg.\n6. Before March 1979 plaintiff had never experienced depression or other psychological problems. He is 54 years old, was a professional baseball player for nine years and has worked for defendant employer for 24 years before his injury in 1979.\n7. Since 9 July 1979 plaintiff has been physically unable to perform the job he was doing or any other job offered to him by defendant employer. Because of the injury he has suffered he has been and remains unable to sit or stand on a prolonged basis.\nII.\nThe Commission concluded that Hill was entitled to compensation under N.C.G.S. \u00a7 97-29 for total disability due to \u201cstress induced depression which rendered him totally disabled from 8 November 1982 ... for so long as he remains so disabled.\u201d This conclusion was based on the Commission\u2019s Finding No. 8 (paraphrased except where quoted):\nOn 8 November 1982 plaintiff came under the care of Dr. Branham, a psychiatrist, and has since then remained under Dr. Branham\u2019s treatment, including antidepressant medications, for depression. \u201cAs a result of the injury by accident . . . and the attendant residuals in his lower extremities and his inability to work, he experienced stress which at least by 8 November 1982 resulted in depression and rendered him totally disabled.\u201d Plaintiff \u201ccontinues to experience sleep disturbance, difficulty in concentration, accentuation of pain, psychomotor slowing, sexual dysfunction, and constriction of interest by reason of . . . stress induced depression\u201d and he remains totally disabled through 16 September 1983 when he was last examined by Dr. Branham.\nThe first question for decision is whether there is evidence in the record to support Finding No. 8, as a majority of the Court of Appeals concluded.\nOn appeals from the Industrial Commission, the Commission\u2019s findings of fact must be sustained if there is competent evidence in the record to support them. Lawrence v. Hatch Mill, 265 N.C. 329, 144 S.E. 2d 3 (1965). This is so even if there is evidence which would support a contrary finding, because \u201ccourts are not at liberty to reweigh the evidence and to set aside the findings of the Commission, simply because other inferences could have been drawn and different conclusions might have been reached.\u201d Rewis v. Insurance Co., 226 N.C. 325, 330, 38 S.E. 2d 97, 100 (1946).\nDr. Branham testified:\nI saw Mr. Hill because of weakness in his legs, pain in his back, which had been present since an injury at work. Subsequent to the injury, the weakness and the pain persisted which resulted in bringing about some symptoms of a disease which we call depression. These symptoms as I saw in Mr. Hill were represented by dysphoria or depression, difficulty in sleep pattern, trouble in concentration, accentuation of the pain already being experienced, psychomotor slowing, constriction of interest in general in his usual way of going about conducting his life, which had been seriously altered in so much as he was unable to function in an employment situation.\nDr. Branham testified unequivocally, \u201cI don\u2019t feel Mr. Hill is in a situation in which he can work. That has been borne out by the criteria for the social security disability people who have very definite criteria for inability to work because of psychiatric problems.\u201d When asked whether this incapacity was \u201crelated to [Hill\u2019s] physical or to psychiatric problems that you are treating him for,\u201d Dr. Branham replied:\nIt\u2019s probably a combination of both, but it\u2019s more from my standpoint, I see it as being more from the physical limitation than from the psychiatric limitation. Mr. Hill has a great deal of difficulty in seeing his wife going to work every morning and he being the man of the household not being able to hold down a job and being at home. . . .\nUnless Mr. Hill can get some relief or some arrest or improvement from his physical situation, I think he\u2019s going to maintain to have a chronic state of depression, medications notwithstanding.\nEarlier Dr. Branham had identified depression as a \u201cstress related disorder.\u201d\nDefendants contend that Dr. Branham\u2019s testimony can only be taken to mean first, that Hill\u2019s depression was caused not by his physical injuries but by his inability to work and second, Hill\u2019s incapacity to work was due not to his depression but to his physical injuries for which he had already been compensated. Defendants argue, therefore, that Dr. Branham\u2019s testimony does not support the Commission\u2019s Finding No. 8 that Hill\u2019s work-related physical injuries caused his depression and that his depression caused his incapacity for work.\nWe disagree. Although Dr. Branham\u2019s testimony is not rendered with as much precision and clarity as might be desirable, it is for the trier of fact, and not an appellate court, to resolve any ambiguities and inconsistencies in it. Dr. Branham\u2019s testimony, when viewed as a whole, forms a sufficient evidentiary basis for the Commission to find that Hill\u2019s depression was caused by his physical injuries and the depression in turn caused him to be incapable of working. This is so even if a contrary finding might also have been available to the Commission.\nDr. Branham testified: \u201cSubsequent to the [work-related] injury, the weakness and pain persisted which resulted in bringing about some symptoms of a disease which we call depression.\u201d And, further, \u201c[u]nless Mr. Hill can get . . . relief . . . from his physical situation, I think he\u2019s going to . . . have a chronic state of depression, medications notwithstanding.\u201d Clearly this testimony is sufficient to support the Commission\u2019s finding that Hill\u2019s depression was caused by his physical, work-related injuries. Dr. Branham\u2019s testimony concerning Hill\u2019s inability \u201cto function in an employment situation\u201d is sufficient to support a finding that this inability was due to Hill\u2019s depression. The Commission was at least free to make this finding even if other findings might have been available to it.\nDr. Branham\u2019s testimony that Hill\u2019s inability to work was due \u201cprobably [to] a combination of both\u201d his physical and his psychiatric limitations and \u201cmore from the physical than from the psychiatric limitation\u201d can be taken to mean, when considered in context, that the genesis of Hill\u2019s problems was physical injury. This testimony, when considered with all else the psychiatrist said, did not preclude the Commission from finding Hill\u2019s incapacity for work to be causally related to his depression.\nWe are satisfied that the Commission\u2019s crucial Finding No. 8 is supported by the evidence; therefore, it must be sustained on appeal.\nIII.\nDefendants next contend that because the Commission made a scheduled award under N.C.G.S. \u00a7 97-31(15) for Hill\u2019s 20 percent loss of use of his legs, it is precluded as a matter of law from subsequently awarding compensation for total incapacity for work under N.C.G.S. \u00a7 97-29. The question is whether an employee may be compensated for both a scheduled compensable injury under N.C.G.S. \u00a7 97-31 and total incapacity for work under N.C.G.S. \u00a7 97-29 when the total incapacity is caused by a psychiatric disorder brought on by the scheduled injury. We conclude the answer is yes.\nDavis v. Edgecomb Metals Company, 63 N.C. App. 48, 303 S.E. 2d 612 (1983), answered this precise issue favorably to the employee in a thoroughly considered and well-researched opinion by Judge, now Justice, Whichard. There, as here, the Commission awarded the employee compensation under the statutory schedule, N.C.G.S. \u00a7 97-31(15), for an injury to his leg. When the leg injury subsequently resulted in a \u201cpost traumatic neurosis with a depressive reaction\u201d which rendered the employee totally incapacitated for work, the Commission awarded compensation under N.C.G.S. \u00a7 97-29 for total incapacity. The Court of Appeals, relying on its own precedents, cases from other jurisdictions, and A. Larson, Workmen\u2019s Compensation Law, and noting \u201c[defendants cite no authority contrary,\u201d Davis v. Edgecomb Metals Company, 63 N.C. App. at 57, 303 S.E. 2d at 617, affirmed both awards. The Court of Appeals quoted with approval from IB A. Larson, Workmen\u2019s Compensation Law \u00a7 42.22:\n[W]hen there has been a physical accident or trauma, and claimant\u2019s disability is increased or prolonged by traumatic neurosis, conversion hysteria, or hysterical paralysis, it is now uniformly held that the full disability including the effects of the neurosis is compensable. Dozens of cases, involving almost every conceivable kind of neurotic, psychotic, depressive, or hysterical symptom, functional overlay, or personality disorder, have accepted this rule. . . .\nThere is almost no limit to the variety of disabling \u2018psychic\u2019 conditions that have already been recognized as legitimately compensable. . . .\nWhen the physical injury precipitating the neurosis is itself a scheduled injury, no special problems arise, since the case falls easily within the familiar rule that the schedule is not exclusive when the effects overflow beyond the scheduled member. . . .\nOne of the cases relied on in Davis is Fayne v. Fieldcrest Mills, Inc., 54 N.C. App. 144, 282 S.E. 2d 539 (1981), disc. review denied, 304 N.C. 725, 288 S.E. 2d 380 (1982). In Fayne (as the record makes clear) the Industrial Commission awarded compensation under the statutory schedule for a work-related back injury. The Commission also, after finding on supporting evidence that the employee suffered from a totally disabling emotional condition, \u201cdirectly related to and . . . caused by the back injury,\u201d awarded compensation under N.C.G.S. \u00a7 97-29 for total disability. The Court of Appeals, in an opinion by Judge, now Justice, Webb, affirmed.\nDavis and Fayne were correctly decided and fully support the conclusion we reach on the question presented.\nDefendants argue that since the scheduled injury statute, N.C.G.S. \u00a7 97-31, provides that compensation awarded thereunder \u201cshall be in lieu of all other compensation . . .,\u201d the Court of Appeals erred in affirming the Commission\u2019s award under both this statute and N.C.G.S. \u00a7 97-29. As this Court has made clear in several cases the \u201cin lieu of\u2019 provisions of the scheduled injury statute apply only when all the employee\u2019s injuries fall within those set out in the schedule. Fleming v. K-Mart Corp., 312 N.C. 538, 324 S.E. 2d 214 (1985); Little v. Food Service, 295 N.C. 527, 246 S.E. 2d 743 (1978). Indeed in Little the Court noted that an employee could be entitled to compensation \u201cunder G.S. 97-31 for such . . . injuries as are listed in that section, and to an additional award under G.S. 97-30 [the partial incapacity statute] for the impairment of wage earning capacity which is caused by any injuries not listed in the schedule in G.S. 97-31.\u201d Id. at 533, 246 S.E. 2d at 747. Even if all injuries are covered under the scheduled injury section an employee may nevertheless elect to claim under N.C.G.S. \u00a7 97-29 if this section is more favorable; but he may not recover under both sections. Whitley v. Columbia Lumber Mfg. Co., 318 N.C. 89, 348 S.E. 2d 336 (1986).\nHere all of Hill\u2019s injuries were not covered under the statutory schedule. Hence this statute\u2019s \u201cin lieu of\u2019 provision is no bar to Hill\u2019s recovery under both the schedule and N.C.G.S. \u00a7 97-29.\nFinally defendants argue that since the Commission did not find that Hill\u2019s capacity to work had changed since he reached \u201cmaximum medical improvement\u201d on 1 November 1980, the Commission improperly made an award for total incapacity to begin two years later on 8 November 1982. Defendants argue:\nEither the claimant had reached maximum medical improvement on November 1, 1980, or he had not reached maximum medical improvement as of that date. If the claimant had fully healed as of November 1, 1980, no award of benefits for total disability should have been made after that date, in the absence of a finding that the claimant\u2019s ability to work and earn wages changed after he reached maximum medical improvement. ... If, on the other hand, the claimant had not yet reached maximum medical improvement, he was not entitled to an award of benefits for permanent partial disability. N.C. Gen. Stat. \u00a7 97-31.\nThis argument seems to arise from a misunderstanding of the Commission\u2019s order. The Commission did not find that Hill had reached overall maximum medical improvement on 1 November 1980. It found, rather, that he had reached \u201cmaximum medical improvement physically\u201d by that date. (Emphasis supplied.) The Commission then concluded that Hill, having \u201creached maximum physical medical improvement\u201d on 1 November 1980, was entitled to payment under the statutory schedule for the physical injuries to his legs. Neither did the Commission make an award under N.C.G.S. \u00a7 97-31 for \u201cpermanent partial disability.\u201d The Commission made an award under the schedule for the partial loss of use of Hill\u2019s legs without regard to how this loss affected his capacity to work.\nThe Commission also found that Hill\u2019s stress-related depression subsequently developed and rendered him \u201cat least by 8 November 1982 totally disabled.\u201d It then concluded he was entitled to compensation for \u201cstress induced depression which rendered him totally disabled\u201d from 8 November 1982 \u201cfor so long as he remains so disabled.\u201d The only award made which was based on Hill\u2019s incapacity for work, other than that for temporary incapacity in 1979 and 1980, was the award for his stress induced depression.\nThe Commission\u2019s findings support its conclusions which, in turn, support its award. There are no double payments for the same injury and no inconsistencies in its order. We find no merit in defendants\u2019 arguments to the contrary.\nIV.\nThe Commission\u2019s award was made on 23 October 1984. On 14 October 1985, while the case was pending in the Court of Appeals, defendants moved in that court for a new hearing before the Commission under Civil Procedure Rule 60(b)(2) and (6). Rule 60(b) provides for relief from final judgments, orders, or proceedings upon grounds listed in several subsections of the rule. Subsection (2) is for \u201c[n]ewly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b).\u201d Subsection (6) is for \u201c[a]ny other reason justifying relief from the operation of the judgment.\u201d\nAffidavits in support of the motion tended to show that between 8 March 1985 and 6 May 1985 investigators observed Hill engaging in various physical activities such as carrying grocery bags, mowing the lawn with a tractor, working on his automobile, and cutting lumber with a saw. The affidavits indicate that Hill had been observed in certain other activities which were, according to the affidavits, not consistent with some of the testimony offered at the hearing and that these other activities had been going on continuously since the late 1970\u2019s. The motion states that the Commission\u2019s award is \u201cinconsistent with newly discovered evidence which by due diligence could not have been discovered in time to move for rehearing prior to filing the present appeal.\u201d\nIt is clear from defendants\u2019 motion that they contemplated the Court of Appeals would not rule on it but would remand it for consideration by the Industrial Commission in the event the Court of Appeals ruled adversely to defendants on the merits of their appeal. The motion states \u201cdefendants respectfully request that the North Carolina Court of Appeals decide the merits of the Appeal filed by defendants prior to remanding this case to the Industrial Commission for consideration of this Motion.\u201d The motion states further that a reversal by the Court of Appeals \u201cwould eliminate the need for consideration of the present Motion by the Industrial Commission.\u201d\nNevertheless a majority of the Court of Appeals decided to address the merits of defendants\u2019 Rule 60(b) motion and denied it on the grounds: (1) the evidence referred to in the affidavits could have with due diligence been discovered in time to ask the Industrial Commission for a new hearing; (2) there is nothing in the motion or affidavits justifying relief under subsection (6); and (3) the proper procedure for ending, diminishing or increasing a compensation award is a motion filed under N.C.G.S. \u00a7 97-47. The last cited statute provides:\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 . . .\nDissenting from this aspect of the majority\u2019s opinion, Chief Judge Hedrick wrote:\n[T]he majority has mishandled the Rule 60(b)(2) and (6) motion for \u2018relief from judgment.\u2019 This motion was properly filed in this Court. Swygert v. Swygert, 46 N.C. App. 173, 264 S.E. 2d 902 (1980). With respect to hearing the Rule 60(b) motion in Swygert, Judge Frank Parker stated that \u2018the determination of plaintiffs motion will require the resolution of controverted questions of fact which the trial court is in a far better position to pass upon than is this Court. . . .\u2019 Id. at 181, 264 S.E. 2d at 907 (1980). I know no reason why we should treat a Rule 60(b) motion filed in this Court in an appeal from the Industrial Commission differently than we treat any other Rule 60(b) motion.\nThe request in the defendant\u2019s Rule 60(b) motion that we \u2018decide the merits of the appeal filed by the defendants prior to remanding this case to the Industrial Commission for consideration of this motion\u2019 effectively withdrew the motion. Thus we need not take action on the motion.\nFurthermore, a motion made under G.S. 97-47 is certainly not the same as a motion under Rule 60. A motion by defendant before the Industrial Commission pursuant to G.S. 97-47 would not afford the same relief as a motion filed pursuant to Rule 60(b)(2) and (6). When this case is finally determined on appeal, the defendant can file its Rule 60(b) motions with the Industrial Commission.\nOn this aspect of the case we agree with Chief Judge Hedrick. It was error for the reasons he stated for the Court of Appeals to rule on defendants\u2019 Rule 60(b) motion. After deciding the merits of the case adversely to defendants, the Court of Appeals should have remanded this motion for initial determination by the Industrial Commission.\nV.\nThe result is this: On the merits of the appeal the decision of the Court of Appeals is affirmed for the reasons we have given. On defendants\u2019 Rule 60(b) motion the decision of the Court of Appeals denying the motion is vacated. The motion is remanded to the Court of Appeals with directions that it remand the motion to the Industrial Commission for initial determination.\nAffirmed.\nDenial of Rule 60(b) motion vacated and motion remanded.\nJustice Mitchell did not participate in the consideration or decision of this case.", "type": "majority", "author": "EXUM, Chief Justice." } ], "attorneys": [ "William Z. Wood, Jr., for plaintiff appellee.", ". Womble, Carlyle, Sandridge & Rice, by Keith W. Vaughn and Nancy R. Hatch, for defendant appellants." ], "corrections": "", "head_matter": "IRVIN FRANK HILL, Employee-Plaintiff v. HANES CORPORATION, Employer, and AETNA LIFE & CASUALTY INSURANCE COMPANY, Carrier-Defendants\nNo. 144A86\n(Filed 4 March 1987)\n1. Master and Servant 8 66 \u2014 ' stress induced depression \u2014 total disability \u2014 evidence sufficient\nThe evidence was sufficient to support an Industrial Commission conclusion that plaintiff was entitled to compensation under N.C.G.S. 97-29 for total disability due to stress induced depression where the testimony of plaintiffs psychiatrist as a whole formed a sufficient evidentiary basis for the Commission to find that plaintiffs depression was caused by his physical injuries and that the depression in turn caused him to be incapable of working, even though a contrary finding might also have been available.\n2. Master and Servant 8 69\u2014 scheduled compensable injury \u2014 total incapacity for work \u2014 compensation for both\nAn employee may be compensated for both a scheduled compensable injury under N.C.G.S. 97-31 and total incapacity for work under N.C.G.S. 97-29 where the total incapacity is caused by a psychiatric disorder brought on by the scheduled injury. The \u201cin lieu of\u2019 provision of N.C.G.S. 97-31 applies only when all of the employee\u2019s injuries fall within those set out in the schedule.\n3. Master and Servant 8 69\u2014 maximum medical improvement in 1980 \u2014 total incapacity beginning in 1982 \u2014 compensable\nThe Industrial Commission did not err by making an award for total incapacity to begin on 8 November 1982, even though plaintiff had reached maximum medical improvement on 1 November 1980, where the Commission found that plaintiff had reached maximum medical improvement physically in 1980 and awarded compensation under the statutory schedule for the partial loss of his legs without regard to how this loss affected plaintiffs capacity to work; found that plaintiffs stress related depression rendered him totally disabled by 8 November 1982; and concluded that he was entitled to compensation for so long as he remained disabled. N.C.G.S. 97-31.\n4. Rules of Civil Procedure 8 60.4; Master and Servant 8 97.2\u2014 newly discovered evidence \u2014 Rule 60 motion in Court of Appeals \u2014 consideration by Court of Appeals \u2014 error\nIn an Industrial Commission proceeding in which plaintiff was awarded compensation for a total disability due to a stress related depression arising from his injuries, the Court of Appeals erred by considering on the merits a motion filed by defendants for a new hearing under N.C.G.S. 1A-1, Rule 60(b)(2) and (6) based on newly discovered evidence of plaintiff engaging in physical activities inconsistent with testimony offered at the hearing. Defendants\u2019 request in the motion that the Court of Appeals decide the merits of the appeal prior to remanding the case to the Industrial Commission for consideration of the motion effectively withdrew the motion; after deciding the merits .of the case adversely to defendants, the Court of Appeals should have remanded the motion for an initial determination by the Industrial Commission. N.C.G.S. 97-47.\nJustice Mitchell did not participate in the consideration or decision of this case.\nAppeal by defendants from a decision of a divided panel of the North Carolina Court of Appeals, 79 N.C. App. 67, 339 S.E. 2d 1 (1986), affirming an opinion and award of the North Carolina Industrial Commission and denying a certain motion filed by defendants in the Court of Appeals. This Court allowed on 7 April 1986 defendants\u2019 petition for further review as to additional issues in the case not addressed by the dissenting opinion. The case was argued on 10 December 1986.\nWilliam Z. Wood, Jr., for plaintiff appellee.\n. Womble, Carlyle, Sandridge & Rice, by Keith W. Vaughn and Nancy R. Hatch, for defendant appellants." }, "file_name": "0167-01", "first_page_order": 199, "last_page_order": 212 }