Peeler v. State Highway Commission , 48 N.C. App. 1 ( 1980 )

PAKKER, Judge.

Plaintiffs sole assignment of error is to the action of the full Commission in striking out the hearing Commissioner’s conclusion of law that “[p]laintiff will need additional medical expenses from time to time in the future to lessen his permanent partial disability” and the portion of the award requiring defendant-employer to pay plaintiffs future medical expenses “so long as it will tend to lessen [plaintiffs] period of disability.” Under G.S. 97-85, the Industrial Commission, upon review of the opinion and award of the hearing Commissioner, may reconsider the evidence and amend the award, Lee v. Henderson & Associates, 284 N.C. 126, 200 S.E. 2d 32 (1973), and the award of the full Commission is conclusive and binding as to all questions of fact if supported by competent evidence. Vause v. Equipment Co., 233 N.C. 88, 63 S.E. 2d 173 (1951). However, the legal conclusions of the Commission are subject to judicial review. Jackson v. Highway Commission, 272 N.C. 697, 158 S.E. 2d 865 (1968); Paving Co. v. Highway Commission, 258 N.C. 691, 129 S.E. 2d 245 (1963). In the present case, the action of the Commission in striking the Deputy Commissioner’s conclusion on the question of plaintiffs additional medical expenses was, in effect, a conclusion of law, and we review it as such.

In that conclusion, the deputy commissioner cited G.S. 97-29 as authority for plaintiffs entitlement to medical expenses. Assuming that the Commission ordered the conclusion stricken on the ground that G.S. 97-29 did not authorize it, we find that it acted correctly. That statute entitles a claimant to recover compensation for medical care only where disability is found to be total and permanent. See, Perry v. Furniture Co., 296 N.C, 88, 249 S.E. 2d 397 (1978); Little v. Food Service, 295 N.C. 527, 246 S.E. 2d 743 (1978). In the present case, the deputy commissioner had expressly found that plaintiff had suffered a permanent partial disability.

Disregarding the statutory reference, we next consider whether the conclusion was sufficient under G.S. 97-25 to afford a basis for the award. At the time the injury occurred on 22 October 1969, G.S. 97-25 provided for the award of expenses for medical treatment in pertinent part as follows:

Medical, surgical, hospital, nursing services, medicines, sick travel, and other treatment including medical and surgical supplies as may reasonably be required, for a period not exceeding ten weeks from date of injury to effect a cure or give relief and for such additional time as in the judgment of the Commission will tend to lessen the period of disability ... shall be provided by the employer, (emphasis added)

That statute was amended by 1973 Sess. Laws, c. 520, s. 1 to eliminate the ten-week limitation on treatments which are necessary “to effect a cure or give relief.” However, the amendment does not apply to the present case because the injury occurred before its effective date. See, Arrington v. Engineering Corp., 264 N.C. 38, 140 S.E. 2d 759 (1965); Hartsell v. Thermoid Co., 249 N.C. 527, 107 S.E. 2d 115 (1959); Oaks v. Mills Corp., 249 N.C. 285, 106 S.E. 2d 202 (1958); McCrater v. Engineering Corp., 248 N.C. 707, 104 S.E. 2d 858 (1958). Thus, under the statute applicable in the present case, an award of expenses for medical treatment could only be made: (1) where reasonably required to effect a cure or give relief within a ten-week period from the date of injury, and (2) after the ten-week period, where in the judgment of Commission treatment may reasonably be required to tend to lessen the period of disability.

In Millwood v. Cotton Mills, 215 N.C. 519, 2 S.E. 2d 560 (1939), the claimant was permanently totally disabled as the result of a compensable head injury which led to serious mental disorder and required that she be committed to custodial hospital care for the remainder other life. Although there was evidence that this treatment “would tend to lessen her disability,” the Supreme Court emphasized that there was no evidence to support a finding that treatment would tend to lessen the period of her disability, and, therefore, that the Commission was without jurisdiction to make the award. In a more recent case, Ashley v. Rent-A-Car Company, 271 N.C. 76, 155 S.E. 2d 755 (1967), the Court, in an opinion by Branch, J. (now C.J.), held that the permanent character of a disability did not preclude an award for medical treatment where the evidence showed that the claimant had not yet reached maximum improvement and that the treatment would reduce the period of his disability. Implied in the Court’s decision in Ashley, supra, is that the phrase “lessen the period of disability” as used in G.S. 97-25 is to be interpreted to mean “lessen the period of time of diminution in earnings.”

In the present case the Hearing Commissioner’s findings were directed to the question whether the medical care would tend to lessen claimant’s disability and whether it would be required to keep plaintiffs condition from worsening. The conclusion of law based upon these findings was only to the effect that these expenses will be necessary “to lessen [plaintiff’s] permanent partial disability,” not that they would tend to lessen the period of disability. Although plaintiff would not be forced to incur these expenses were it not for his work-related injury, we are bound by the wording of the statute as then written and by its judicial interpretation. The conclusion of law, while logically flowing from the findings of fact, simply did not provide a basis upon which an award of medical expenses could be made, and it was properly stricken by the full Commission as mere surplusage. Further, we note that the deputy commissioner’s determination of percentage permanent partial disability and his award of compensation thereon effectively precluded him from awarding payment of medical expenses. Unlike the employee in Ashley v. Rent-A-Car, supra, whose percentage permanent partial disability had not been finally assessed at the time the award for medical treatment was made because he had not yet reached maximum improvement, plaintiff in the case now before us had done so, as the findings of and award for disability necessarily imply. Thus, any future medical treatment, however necessary, could not “tend to lessen the period of disability,” i.e. the period of plaintiffs diminished capacity to work.

For the same reasons, the full Commission properly struck that portion of the award directing defendant to pay “future medical expenses for treatment as recommended by plaintiffs doctor so long as it will tend to lessen his period of disability.” It is clear that the Industrial Commission is without power to make an award except upon proper findings of fact and conclusions of law drawn therefrom. The findings of fact here show at most that the treatment is necessary to keep plaintiffs condition from deteriorating.

Our holding in this case produces a harsh result. However, in the Workers’ Compensation Act “the Legislature has prescribed and limited the benefits to and the burdens upon those subject to its provisions. It is the duty of the courts to declare the law as written, and not to make it.” Millwood v. Cotton Mills, supra, at 525, 2 S.E. 2d at 563. The Opinion and Award appealed from is

Affirmed.

Chief Judge Morris concurs. Judge Martin (Robert M.) dissents.