Joyner v. Rocky Mount Mills ( 1987 )

EAGLES, Judge.

By his only assignment of error plaintiff contends that he is entitled to future medical expenses under G.S. 97-59 and that the full Commission erred in failing to address that issue in its opinion and award. The full Commission affirmed the opinion and award of the Deputy Commissioner, modifying it only to reduce by one-half the award for loss of function to each lung and attorney fees. The Deputy Commissioner found as fact that “plaintiff would benefit from a continuing program of medical treatment for his lung disease.” However, the Deputy Commissioner made no award for medical expenses pursuant to G.S. 97-59 and plaintiff never appealed from that opinion and award. Only the defendants appealed to the full Commission and the record before us states that the sole issue on appeal was whether the commissioner “erred in awarding plaintiff compensation in the amount of $8,000 per lung pursuant to G.S. 97-31(24).” Rule 701(c) of the Rules of the Industrial Commission states that:

Particular grounds for appeal not set forth in the application for review shall be deemed to be abandoned and argument thereon shall not be heard before the Full Commission. The non-appealing party is not required to file conditional assignments of error in order to preserve his rights for possible further appeals. [Emphasis added.]

Plaintiffs assignment of error that the Deputy Commissioner erred in failing to award medical expenses under G.S. 97-59 is not a “conditional assignment of error.” The record does not support plaintiffs assertion in his brief that the issue was properly brought to the attention of the full Commission. There is nothing in the record or in the full Commission’s opinion and award about medical expenses pursuant to G.S. 97-59. Plaintiff has excepted to the full Commission’s modification of the amounts awarded for loss of lung function and attorney fees. However, plaintiff has not challenged the Commission’s reduction of the amounts awarded.

Plaintiff has failed to properly preserve his right to appeal the failure of the Deputy Commissioner to order payment of medical expenses under G.S. 97-59. The record must in some way reflect that the matter was before the full Commission. There is no evidence in the record that the matter was ever addressed by the full Commission. All that is clear from this record is that the Deputy Commissioner never awarded medical expenses; that the plaintiff did not appeal from the Deputy Commissioner’s opinion and award; and that the sole issue on appeal before the full Commission was the propriety of the amounts awarded for loss of lung function and attorney fees. Accordingly, the appeal is dismissed.

Dismissed.

Judges Johnson and ORR concur in the result.