Matros v. . Owen

WiNBORNE, -I. The defendant, appellant, presents on this appeal the same assignments of error as those presented in Worley v. Pipes, ante, 465. The provisions of the North Carolina Workmen’s Compensation Act, set forth in the opinion in Worley v. Pipes, ante, 465, are applicable to this case. However, the factual situation here differs from that in the Worley case in that here the plaintiff alleges in his complaint and the court finds as facts (1) not only that on 29 December, 1947, defendant was employed as a mechanic by Harry’s Cadillac-Pontiac Company, which was subject to and had accepted the provisions of The North Carolina Workmen’s Compensation Act, and was injured by accident arising out of and in the course of his employment, but that plaintiff rendered *475 surgical service to defendant with information from defendant that his employer had directed him, as a patient covered by the said Workmen’s Compensation Act, to plaintiff for professional service; (2) that defendant complied with all the provisions of the North Carolina Workmen’s Compensation Act by giving to his employer timely notice of his injury, and plaintiff filed with defendant’s employer bill for the professional services to defendant; and (3) that said employer and his carrier declined to accept responsibility for the injury,—assigning as reason that from their investigation they were of opinion that defendant did not sustain injury by accident arising out of and in the course of his employment. Thus, while it does not appear that either party applied to the North Carolina Industrial Commission for a hearing in regard to the matter at issue, and for a ruling thereon as provided in G.S. 97-83, plaintiff affirmatively alleges and the court finds that the parties were subject to and accepted the provisions of the Workmen’s Compensation Act. That being so, the applicable remedy open to defendant and to plaintiff, in respect to his bill for services rendered, was to make such application to the Industrial Commission and have it consider for approval plaintiff’s bill in the light of the provisions of G.S. 97-26. If the applicant be dissatisfied with the ruling of the Industrial Commission an appeal may be taken pursuant to provisions of the Compensation Act. Indeed, plaintiff may find that he may yet make such application. G.S. 97-22, G.S. 97-23, G.S. 97-24, and G.S. 97-47, as amended by 1947 Session Laws. Chapter 823. Whitted v. Palmer-Bee Co., 228 N. C. 447, 46 S. E. (2) 109. But under the facts alleged defendant is not indebted to plaintiff for the services rendered, and there is error in the finding of fact and conclusion of law and judgment that defendant is so indebted to plaintiff. Therefore, as in Worley v. Pipes, ante, 465, plaintiff may not challenge the constitutionality of the act in the respects indicated. The judgment below is Reversed.