Johnson v. IBM, Inc. , 97 N.C. App. 493 ( 1990 )

389 S.E.2d 121 (1990) 97 N.C. App. 493

Lawrence A. JOHNSON, Employee, Plaintiff,
v.
IBM, INCORPORATED, Employer; and
Liberty Mutual Insurance Co., Compensation Carrier; Defendants.

No. 8810IC627.

Court of Appeals of North Carolina.

March 6, 1990.

Spears, Barnes, Baker, Hoof & Wainio by Alexander H. Barnes, Durham, for plaintiff-appellant.

Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog by Paul L. Cranfill and Samuel H. Poole, Jr., Raleigh, for defendants-appellees.

PHILLIPS, Judge.

Plaintiff's appeal questions only the legality of deducting from his award the payments he received under the employer's medical disability plan while his claim for further compensation was being processed. The following portion of G.S. 97-42 is the Commission's only authority under the Workers' Compensation Act for making deductions from an employee's compensation award:

Any payments made by the employer to the injured employee during the period of his disability, or to his dependents, which by the terms of this Article were not due and payable when made, may, subject to the approval of the Industrial Commission be deducted from the amount to be paid as compensation.

This provision permits, but does not require, the Commission to deduct from a compensation award to an injured employee any payments made by the employer before the employee's right to compensation under the terms of the Workers' Compensation Act was established. Moretz v. Richards & Associates, Inc., 316 N.C. 539, 342 S.E.2d 844 (1986). Thus, whether the payments deducted were due and payable under the Act when made determines the appeal; if they were "due and payable when made" they may not be deducted; if they were not then due and payable the Commission had authority in its discretion to deduct them, and no abuse is indicated or contended.

Plaintiff's argument, in substance, is that the payments involved were due and payable when made, and therefore not deductible under G.S. 97-42, because the agreement entered into on 8 November 1982 established that the employee's injury was compensable under the Workers' Compensation Act, and the payments followed that determination. The argument has no merit. That agreement, when approved by the Commission, was a binding award, Watkins v. Central Motor Lines, Inc., 279 N.C. 132, 181 S.E.2d 588 (1971); it established that the permanent consequences of plaintiff's injury was a twenty-five percent disability of the back and settled the claim for the amount stated in the absence of a substantial change of condition being found under the provisions of G.S. 97-47. Pratt v. Central Upholstery Co., Inc., 252 N.C. 716, 115 S.E.2d 27 (1960). Thus, no further payment of any kind was due plaintiff under the Workers' Compensation Act until the Commission completed its review of plaintiff's situation and determined that his condition had substantially changed and he was totally disabled; the payments made by the employer's medical plan before then were not due and payable under the Workers' Compensation Act "when made" and the deduction was authorized by G.S. 97-42. Upon similar facts our Supreme Court reached the same conclusion in Foster v. Western-Electric Co., 320 N.C. 113, 357 S.E.2d 670 (1987).

Affirmed.

COZORT and GREENE, JJ., concur.