Blevins v. Teer, 220 N.C. 135 (1941)

Oct. 8, 1941 · Supreme Court of North Carolina

220 N.C. 135

NATH BLEVINS, Employee, v. NELLO L. TEER, Contractor, Employer, and STANDARD ACCIDENT INSURANCE COMPANY, Carrier.

(Filed 8 October, 1941.)

1. Master and Servant § 55d—

The jurisdiction of the Superior Court on appeal from the Industrial Commission is limited to questions of law or legal inference, the findings of fact of the Industrial Commission being conclusive.

2. Master and Servant § 55g—

The Superior Court has no discretionary power to remand the cause to the Industrial Commission for further or more complete findings of fact when the award of the Commission is supported by findings of fact made upon competent evidence.

3. Same: Master and Servant § 40g — When Commission finds upon supporting evidence that claimant did not sustain injury as result of accident, finding is conclusive and Superior Court may not remand cause.

In this proceeding before the Industrial Commission plaintiff’s evidence was to the effect that he felt a sharp pain while carrying a heavy load in the course of his employment. There was expert opinion evidence that claimant has tuberculosis of the spine and arthritis of the lumbar spine, that the arthritis had existed prior to the accident, with no opinion as to the inception of the tuberculosis, with further medical expert testimony that the conditions were not the result of an accident, although they might have been aggravated by a quick jerk or definite strain. Held: The finding of the Industrial Commission upon the evidence that claimant did not sustain his injury as a result of an accident occurring in the course of his employment is conclusive, and judgment of the Superior Court remanding the cause for further or more complete findings of fact is reversed.

Appeal by defendants from Phillips, J., at August Term, 1941, of YANCEY.

Tbis proceeding began before the North Carolina Industrial Commission, upon complaint of the plaintiff Blevins, employee, against the defendants Teer, employer, and the insurance company, carrier, for compensation which the plaintiff alleged to be due him for injuries sustained while in the employment of the defendant Teer.

He claims that he received his injury through accident while helping to carry one end of a heavy galvanized iron pipe along and down a mountainside, along with several other men. The evidence bearing upon the manner in which the injury was sustained may be summarized as follows:

Some time after plaintiff went into the employment of defendant Teer, he was engaged, with others, in carrying pipe lines across the highway, and was so engaged at the time of the alleged injury. The pipe line was of galvanized steel with a bed of tar on one side of it; plaintiff could not say how much the pipe weighed, but there were about eight men carrying it and he thought it weighed about one thousand pounds. He was holding one end of a stick passed under the pipe line, and the laborer on the other side was holding the other end, the stick bearing part of the load. They were undertaking to carry the pipe line down the mountain, and plaintiff’s position was at the lower end, where the weight naturally fell.

Plaintiff experienced a little pain in the side of his back. Since that time, he complains that he has been “punishing” — hurting in his back all the while,' and is not able to do any kind of work or to perform any kind of gainful labor. This was on 17 December, 1938, and the plaintiff appears to have filed his claim on 11 December of the next year.

Plaintiff further testified that he had not been able to perform any duties in connection with his former work, and did not return to work for Teer on the following day because he was unable to do so; that he paid little attention to it at the time, but was unable to get back next day, although he thought he would be able to work in a few days. Plaintiff testified that he was thirty-eight years of age and prior to this occurrence he had been able to do hard, laborious work, “most any kind of work tbat comes along.” He stated tbat be bad not received any medical attention, except tbat Dr. Eobertson bad given bim an examination. Plaintiff testified tbat be was not able to do any manual labor, spent most of tbe time in bed, tbat tbis condition did not exist prior to bis injury. On cross-examination be stated tbat be did not remember saying anything to tbe people around bim about being burt, just went borne; tbat tbe next time be went to a Nello Teer job was on 9 December, 1939, wben be went back to report tbe accident; and tbat be bad not been able to get about all tbis time, but tbougbt tbat be might probably go back to work any day. He testified tbat be did not report tbe accident earlier because be tbougbt tbat it would not amount to anything, but tbat it bad; tbat be bad waited almost a year to report tbe accident because be tbougbt tbat be might be able to go back to work. He stated, however, tbat be bad consulted many persons about bis accident before be came to tbe lawyer, but did nothing about it.

Corroborative evidence as to tbe condition of claimant prior to tbe injury and after tbe injury was furnished by Waitz Blevins, bis father, and by Arthur Patton.

Dr. Eobertson testified tbat Blevins came to see bim about 7 December, 1939, complaining of pain in bis left testicle, and upon examination was found to have a varicocele and enlarged cord. Witness did not remember tbat Blevins made tbe complaint of pain in bis back at tbat time. Witness stated tbat varicose veins might cause bis back to burt and give bim tbe trouble complained of “on tbe stand.” He stated tbat tbe condition be found was, in bis opinion, not tbe result of any accident sustained in tbe manner claimed by plaintiff.

A second bearing was bad before Hon. Pat Kimzey, Commissioner, in Asheville, on 12 November, 1940. Tbis bearing appears to have been for tbe purpose of taking tbe testimony of Dr. James H. Cherry.

Tbis witness, after qualifying as an expert, testified tbat be bad made an examination of Blevins on 6 August, 1940, at which time be discovered tbat Blevins bad two definite lesions in bis spine, one of which bad tbe characteristics of tuberculosis, and tbe other of osteoarthritis of tbe lumbar spine; in other words, be found tbat Blevins bad tuberculosis of tbe spine and arthritis of tbe lumbar spine. He testified tbat in bis opinion tbe arthritis bad existed prior to tbe injury, but bad no definite opinion with regard to tbe time wben tbe tuberculosis set in. He expressed bis opinion tbat neither condition was tbe result of tbe accident described by tbe plaintiff, nor tbe result of any strain received at tbat time. Upon a hypothetical question, witness stated tbat be bad a definite opinion tbat tbe conditions be found were not caused by any such accident, but bad no definite opinion as to whether they were aggravated by it or not; be believed, however, tbat tbe conditions be found would get progressively worse. Witness tbougbt tbat recovery from tbe conditions found by bim was retarded for want of medical care. He tbougbt tbat tuberculosis could be cured in a certain number of cases, but doubted whether tbe arthritis could ever be cured, although tbe symptoms might be helped or relieved. Witness further stated tbat be found a condition of varicocele in plaintiff’s left testicle, and bad no definite opinion whether such condition might be tbe result of an accident, as tbat was entirely out of bis field. He found no evidence of rupture.

Witness stated tbat when be made bis examination on 6 August, 1940, be found Blevins to be totally disabled. He tbougbt tbat tbe disease could easily have been aggravated by tbe injury, but stated.tbat be bad never bad it clearly in bis mind as to bow tbe injury did occur. He believed tbat any strain, if it bad occurred, might have exaggerated tbe conditions both of tuberculosis and arthritis to some extent. Witness stated tbat any kind of quick jerk ivas likely to exaggerate tbe arthritis. He tbougbt tbat tbe tuberculosis presented an old lesion, tbat tbe conditions might have been aggravated by a definite injury, a quick jerk, a definite strain. Tbe plaintiff introduced a letter written by this witness, couched in technical terms, showing various pathological conditions, including tbe tubercular and arthritic conditions to which be testified, and stating tbe impression, “Apparently tbe disease was present previous to tbe injury, but could have been easily aggravated by tbe injury.” He further stated tbat at tbat time the man was totally disabled and should have prompt medical attention.

Tbe conclusion of tbe bearing Commissioner proving adverse to claimant, be obtained a bearing before tbe Full Commission. Tbe Full Commission, upon all tbe evidence, found tbat tbe claimant did not sustain bis injury as tbe result of an accident sustained in tbe course of bis employment, and denied compensation. From tbe judgment of tbe Commission, denying such compensation, plaintiff appealed to tbe Superior Court of Yancey County. Upon tbe bearing in tbe Superior Court tbe following judgment was entered:

“This cause coming on to be beard and being beard at this tbe August Term, 1941, of tbe Superior Court of Yancey County, North Carolina, before bis Honor, F. Donald Phillips, Judge presiding and holding said court according to law, upon tbe appeal of tbe plaintiff from tbe award of tbe Industrial Commission entered in this cause of date of February 28, 1941, and upon tbe transcript of tbe record and testimony made and taken before tbe North Carolina Industrial Commission and upon argument of counsel for plaintiff and defendants:

“IT IS OEDEEED AND ADJUDGED by the court in its discretion that this cause be remanded to the North Carolina Industrial Commission for further and more complete findings of fact.

“This the 14th day of August, 1941.

“E. DoNald Phillips, “Judge Presiding.”

From this the defendant appealed.

Charles Hutchins for plaintiff, appellee.

Heazel, Shuforcl & Hartshorn for defendant, appellant.

Sea well, J.

The judgment from which appeal is taken was no doubt rendered by the court below under a momentary misapprehension of its power. We do not know of any situation that would justify an appellate judge in remanding the proceeding to - the Industrial Commission as a matter of pure discretion “for further or more complete findings of fact” where the award or final order of the Commission is in accordance with its findings of fact made upon competent evidence.

An appeal from an order or award of the Industrial Commission to the Superior Court is only upon matters of law or legal inference. Chapter 120, sec. 60, Public Laws of 1929; Perkins v. Sprott, 207 N. C., 462, 463, 177 S. E., 404, 405; Byrd v. Lumber Co., 207 N. C., 253, 255, 176 S. E., 572, 573. The same section provides that the award of the Commission “shall be conclusive and binding as to all questions of fact.” Reed v. Lavender Bros., 206 N. C., 898, 175 S. E., 927; Smith v. Hauser & Co., 206 N. C., 562, 174 S. E., 455; Winberry v. Farley Stores, Inc., 204 N. C., 79, 167 S. E., 475.

The cases cited in appellee’s brief in support of his contention, Byrd v. Lumber Co., supra, and Butts v. Montague Bros., 208 N. C., 186, 179 S. E., 799, bear upon the power of the court to remand a case to the Industrial Commission because of newly discovered evidence. Certainly there are many instances in which the appellate judge might remand a case, and a number of such instances are cited in defendant-appellant’s brief: Farmer v. Bemis Lumber Co., 217 N. C., 158, 7 S. E. (2d), 376; Bank v. Motor Co., 216 N. C., 432, 5 S. E. (2d), 318; Tindall v. Furniture Co., 216 N. C., 306, 4 S. E. (2d), 894; Thompson v. Funeral Home, 208 N. C., 178, 179 S. E., 801; Perkins v. Sprott Bros., supra; Butts v. Montague Bros., 204 N. C., 389, 168 S. E., 215. The list is no doubt incomplete, but we are sure that no investigation will disclose a precedent for the order in the case at bar. Buchanan v. Highway Commission, 217 N. C., 173, 7 S. E. (2d), 382; Rankin v. Mfg. Co., 212 N. C., 357, 193 S. E., 389; McNeill v. Construction Co., 216 N. C., 744, 6 S. E. (2d), 491. It is true that this Court has held that a sudden and unexpected disruption or breaking of tbe internal tissues caused by a strain may,, under qualifying conditions, be compensable as caused by accident arising out of tbe employment and in its course. Smith v. Creamery Co., 217 N. C., 468, 8 S. E. (2d), 231; cf. Moore v. Sales Co., 214 N. C., 424, 199 S. E., 605. But tbe Commission, having before tbem tbe very full evidence on tbis point wbicb we bave quoted, did not find any lesion attributable to either external or internal accident, or, in fact, any accident at all wbicb might bave contributed to plaintiff’s condition, but seem rather to bave attributed tbis condition to other causes. Davis v. Mecklenburg County, 214 N. C., 469, 199 S. E., 604; Early v. Basnight & Co., 214 N. C., 103, 198 S. E., 577; Buchanan v. Highway Commission, supra.

Tbe condition of tbe plaintiff is such as to arouse tbe profoundest sympathy and pity. In bis frail body, ravaged by dread tuberculosis and stiffened by incurable arthritis, be exemplifies tbe mystery and pathos of human suffering. His absence from tbe doctor’s office may bave been a matter of necessity rather than choice, since malnutrition is listed as one of bis afflictions, and be sues here as a pauper. But tbe Commission has 'found tbe situation lacking in those conditions wbicb would justify attaching responsibility to tbe defendant, and has made its award accordingly. Tbe award is supported by competent evidence, is without legal error, and should bave been affirmed. McNeill v. Construction Co., supra.

Judgment in tbe Superior Court will be entered in accordance with tbis opinion. Tbe judgment of tbe Superior Court involved in tbis appeal is

Reversed.