Hall v. Thomason Chevrolet, Inc.

Shaep, J. Plaintiff’s evidence conclusively establishes that there has been no change in his physical or mental condition since the hearing on August 7, 1962, nor, indeed, since the hearing on January 8, 1962. Pratt v. Upholstery Co., 252 N.C. 716, 115 S.E. 2d 27. The Commission’s findings are correct and based upon competent evidence. This simple statement, however, does not dispose of this case. *574 Plaintiff’s motion made April 23, 1963, to reopen the case-“on the basis of change of condition as provided in G.S. 97-47” was mislabeled. Plaintiff was actually attempting to reopen the case on the grounds of newly discovered evidence. Under G.S. 97-47 the Industrial Commission “has the power, in a proper case, and in accordance with its rules and regulations, to grant a rehearing of a proceeding pending before it, and in which it has made an award, on the ground of newly discovered evidence.” Butts v. Montague Bros., 208 N.C. 186, 188, 179 S.E. 799, 801. “The rules of the Industrial Commission, adopted pursuant to . . . the Workmen’s Compensation Act, relative to the introduction of new evidence at a review by the Full Commission, are in accord with the decisions of this Court as to granting new trials on newly discovered evidence.” Tindall v. Furniture Co., 216 N.C. 306, 311, 4 S.E. 2d 894, 897; accord, Brown v. Hillsboro, 185 N.C. 368, 117 S.E. 41; 2 McIntosh, North Carolina Practice and Procedure § 1596(8) (2d Ed. 1956). On April 23, 1963, less than twelve months had elapsed since the latest award made under the Act; the case was. therefore still pending. G.S. 97-47; Butts v. Montague Bros., supra; Ruth v. Carolina Cleaners, Inc., 206 N.C. 540, 174 S.E. 445; Annot., Workmen’s Compensation: time and jurisdiction for review, reopening, modification, or reinstatement of award or agreement, 165 A.L.R. 9, 291-293. Instead of seeking a modification of the award for a change of condition, plaintiff seeks an award for permanent partial disability. Such an award, based on the injury to his brain, could have been made under G.S. 97-30 for his permanent partial incapacity to work. No such award has been made. At the time of the hearing on August 7, 1962, which resulted only in an award in the amount of $2,100.00, under G.S. 97-30(21) for external disfigurement of the head and face, plaintiff had made no attempt to go back to work. The reason, so he told the psychiatrist, was that he was afraid he would fall into a running engine. Nevertheless, according to Dr. Ames, he had reached maximum improvement in January 1962 and was then able to return to work. The cranioplasty, of course, temporarily interrupted this ability. Because he had not then tried to work since his injury, at the August hearing plaintiff was in no position to show the extent, if any, of the impairment of his wage-earning capacity, even though medical evidence had established permanent brain damage. The matter of the percentage of plaintiff’s permanent partial disability attributable to the accident was a matter of speculation, both by plaintiff, and by his doctors, who confirmed a permanent brain injury but confessed themselves powerless to evaluate it. Under ,the Workmen’s Compensation Act disability refers not to physical infirmity but to a diminished capacity to earn money. Dail v. *575 Kellex Corp., 233 N.C. 446, 64 S.E. 2d 438; Anderson v. Motor Co., 233 N.C. 372, 64 S.E. 2d 265; Branham v. Panel Co., 223 N.C. 233, 25 S.E. 2d 865. The burden was on plaintiff as the claimant to show not only permanent partial disability, but also its degree. Henry v. Leather Co., 231 N.C. 477, 57 S.E. 2d 760. As he offered no evidence from which the Commission could make a finding with reference to such a disability, it made none. The Commission is not in a position to make a proper award until the extent of disability or permanent injury, if any, is determined. Pratt v. Upholstery Co., supra. From the award of August 1962 plaintiff gave notice of appeal to the Superior Court, but failed to perfect it — doubtlessly because of the dearth of evidence. An award of the Commission is, if not reviewed in due time as provided in the Act, conclusive and binding as to all questions of fact. G.S. 97-86. We do not face here, however, a situation in which the Commission has made a determination of the extent of plaintiff’s permanent partial disability upon facts fully developed at the hearing. Although, in a proper case, such an award might be modified as a result of newly discovered evidence, here the Commission has made no findings and no award with reference to the claim plaintiff now makes. The first specific evidence which the Commission heard tending to establish actual permanent partial disability, i.e., diminished capacity to earn money, came at the hearing on June 19, 1963, pursuant to plaintiff’s motion for a modification of the award for a change of condition. The evidence produced at that hearing makes a prima facie case of permanent partial disability resulting from the accident on November 11, 1959. Had plaintiff presented this proof at the hearing on August 7, 1962, the Commission would doubtlessly have found him entitled to an award under G.S. 97-30. The award which plaintiff received on August 16, 1962, was for external facial or head disfigurement under G.S. 97-31(21). Davis v. Construction Co., 247 N.C. 332, 101 S.E. 2d 40. His failure to establish, at the hearing on August 7, 1963, the extent of permanent partial incapacity caused the claim to be disallowed. Does his failure to offer at that hearing any evidence tending to establish such permanent partial disability, after he had requested a determination and award for it, estop him from doing so now? In our view of the case, the Commission must answer this question when it reconsiders his motion as one for a rehearing upon newly discovered evidence. Under the circumstances of this case, we do not think that plaintiff, having only a ninth-grade education and suffering from a brain injury, should be precluded as a matter of law from presenting *576 his claim for compensation to which he might be entitled; the claim, because of plaintiff's lack of evidence at the hearing, has not been adjudicated. In Sharmon v. Holliday & Greenwood, Ltd., [1904] 1 K.B. 235, 240, Lord Justice Mathew makes an observation applicable to plaintiff’s situation here: “(I)f the workman afterwards solves the question (of his capacity to work) by experiment, and, on his endeavoring to obtain employment, the result proves clearly that he is incapacitated, there seems to me to be no good reason why the county court judge should be prevented from going into the matter again and reviewing the award. It would, in my opinion, be most unjust if in such a case the doctrine of res judicata 'should prevent the injured workman from applying for adequate compensation.” It is a fundamental rule that the Workmen’s Compensation Act “should be liberally construed to the end that the benefits thereof should not be denied upon technical, narrow and strict interpretation.” Johnson v. Hosiery Co., 199 N.C. 38, 40, 153 S.E. 591, 593; accord, Guest v. Iron & Metal Co., 241 N.C. 448, 85 S.E. 2d 596. According to some authorities, “ (T) he facts that evidence claimed as a basis of a motion to open a compensation award is not newly discovered and might have been offered at the original hearing in the exercise of due diligence, and that counsel, through inadvertence, has failed to present a ground upon which compensation might be allowed, do not in themselves prevent the compensation commissioner from granting such a motion.” 58 Am. Jur., Workmen’s Compensation § 541 (1948), citing Olivieri v. City of Bridgeport, 126 Conn. 265, 10 A. 2d 770, 127 A.L.R. 1471. Had this been an ordinary civil action in which all damages are required to be assessed at one time and awarded in a lump sum, plaintiff’s failure to offer evidence during the trial as to his permanent partial disability would manifestly preclude him ever after from doing so. The strict rule in civil actions, for obvious reasons, could not be applicable to proceedings under the Workmen’s Compensation Act. We find convincing the following reasoning of the Connecticut court: “ (U) nderlying the limitation upon the right of a party to have an award in a compensation case opened for newly discovered evidence is the principle 'of universal authority, whose base is public *577 policy, and is expressed in the maxim “Interest reipublicae ut sit finis litium,” which we denominated in Burritt v. Belfy, 47 Conn. 323, 329, 36 Am. Rep. 79, as the “embodiments of wisdom and justice.” ’ We have suggested, however, that this principle does not have the strict application in proceedings for workmen’s compensation that it has as regards proceedings in the courts. Glodenis v. American Brass Co., 118 Conn. 29, 34, 170 A. 146. As we said in the McCulloch case: Tn the absence of other than technical prejudice to the opposing party, the liberal spirit and policy, of the Compensation Act (Pub. Acts 1913 c. 138, as amended) should not be defeated or impaired by a too strict adherence to procedural niceties.’ A party to a compensation case is not entitled to try his case piecemeal, to present a part of the evidence reasonably available to him, and then, if he loses, have a rehearing to offer testimony he might as well have presented at the original hearing. He must be assumed to be reasonably familiar with his rights and with the . . . proof necessary to establish his claim; and to permit him intentionally to withhold proof, or to shut his eyes to the reasonably obvious sources of proof open to him, would be fair neither to the commissioner and the court nor to the defendant. Where an issue has been fairly litigated, with proof offered by both parties upon an issue, a claimant should not be entitled to a further hearing to introduce cumulative evidence, unless its character or force be such that it would be likely to produce a different result. Gonirenki v. American Steel & Wire Co., supra, page 11 of 106 Conn., 137 A. 26. On the other hand, mere inadvertence on his part, mere negligence, without intentional withholding of evidence, particularly where there is no more than technical prejudice to the adverse party, should not necessarily debar him of his rights, and despite these circumstances a commissioner in the exercise of his discretion might be justified in opening an award. No definite rule can be formulated, but the policy that litigation should be brought to as speedy an end as is reasonably compatible with justice to the parties, prejudice, or lack of it to the opposing party, the conduct of the party seeking to open the award, particularly with regard to any reason he may have for not having produced the evidence at the original hearing, the nature of the testimony, and its probable effect upon the conclusion reached, and the other relevant circumstances, must all be considered. The matter is one which must lie very largely within the discretion of the commis *578 sioner.” Kearns v. City of Torrington, 119 Conn. 522, 177 Atl. 725. This proceeding has been heard upon a misapprehension of applicable principles of law. Until all of an injured employee’s compensable injuries and disabilities have been considered and adjudicated by the Commission, the proceeding pends for the purpose of evaluation, absent laches or some statutory time limitation. See Pratt v. Upholstery Co., supra. This case is remanded to the Superior Court with directions that it be returned to the Industrial Commission, which will determine, according to its own rules and the legal principles applicable to newly discovered evidence, whether it will grant plaintiff the requested rehearing with reference to his diminished earning capacity. Thompson v. Funeral Home, 208 N.C. 178, 179 S.E. 801. Reversed and remanded.