Peeler v. State Highway Commission

273 S.E.2d 705 (1981)

James Clifton PEELER
v.
STATE HIGHWAY COMMISSION.

No. 126.

Supreme Court of North Carolina.

January 27, 1981.

Williams, Willeford, Boger, Grady & Davis by Thomas M. Grady, Kannapolis, for plaintiff-appellant.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Ralf F. Haskell, Raleigh, for the State.

PER CURIAM.

In a clear and well-written opinion, Judge Parker, speaking for the Court of Appeals, held that:

(1) The action of the full Industrial Commission in striking the conclusion of the deputy commissioner that "[p]laintiff will need additional medical expenses from time to time in the future to lessen his permanent partial disability", as well as the portion of the award which required defendant employer to pay plaintiff's future medical expenses "so long as it will tend to lessen (plaintiff's) period of disability", was, in effect, a conclusion of law reviewable by the appellate courts.

(2) G.S. § 97-29 authorizes a claimant to recover compensation for medical care only when the disability is found to be total and permanent. That statute cannot be relied upon to support the action of the deputy commissioner because there had been an express finding that plaintiff had suffered a permanent partial disability.

(3) G.S. § 97-25 authorized, at the time of plaintiff's injury, an award of expenses for medical treatment only when: (a) It was reasonably required to effect a cure or give relief within ten weeks of the injury. (b) After the ten-week period, when, in the judgment of the Industrial Commission, the treatment was reasonably required to lessen the period of disability. The conclusion of law by the deputy commissioner was to the effect that these medical expenses will be necessary only to lessen plaintiff's permanent partial disability, not that they would tend to lessen the period of his disability. While this conclusion of law flows logically from the findings of fact, it does not provide a basis upon which medical expenses could be properly awarded, and the full commission acted correctly in ordering that it be stricken. At most, the findings indicate that the treatment is necessary to prevent plaintiff's condition from deteriorating, not that it will tend to lessen the period of disability.

We are in full agreement with the majority opinion of the Court of Appeals. The only issue that remains for our consideration is that posed by the dissent of Judge Robert M. Martin: Whether this court, in the recent case of Schofield v. Great Atlantic & Pacific Tea Co., 299 N.C. 582, 264 S.E.2d 56 (1980), retroactively applied a 1973 amendment to G.S. § 97-25 in such a manner as to enable plaintiff to recover future medical expenses.

At the time of plaintiff's injury, G.S. § 97-25 provided that

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.

G.S. § 97-25 (1965).

The 1973 Session of the General Assembly amended the statute to provide that

Medical, surgical, hospital, nursing services, medicines, sick travel, rehabilitation services, and other treatment including medical and surgical supplies as may reasonably be required 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.

It was the position of the dissent that the 1973 amendment was retroactively applied by this court in Schofield; and that the statute as amended requires employers to provide medical care which is reasonably required (1) to effect a cure, (2) give relief, or (3) if additional time is required, to lessen the period of disability. Judge Martin concluded that it was clear upon the present record that the continuing medical treatment which plaintiff will require for the rest of his life as a result of his permanent injuries will never effect a cure or lessen the period of his disability. However, he concluded that there was ample evidence in the record to support a finding that such treatment is reasonably required to give relief. Judge Martin observed that the manifest intention of the legislature in enacting the amendment was to eliminate the previous ten-week limitation on treatments which are necessary to effect a cure or give relief.

The position taken by the dissent that this court retroactively applied the 1973 amendment in Schofield is erroneous for two principal reasons.

First, while it is the general rule that the Workers' Compensation Act should be liberally construed so that the benefits arising under the Act will not be denied by narrow or technical construction, e. g., Stevenson v. City of Durham, 281 N.C. 300, 188 S.E.2d 281 (1972), that rule is subject to the principle that a statute will not be construed to have retroactive effect unless that intent is clearly expressed in the legislation or arises by necessary implication from its terms. In re Will of Mitchell, 285 N.C. 77, 203 S.E.2d 48 (1974); see generally 1A D. Sands, Statutes and Statutory Construction § 22.36 (1972); compare Arrington v. Stone & Webster 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. Cone Mills Corp., 249 N.C. 285, 106 S.E.2d 202 (1958). By its very terms, the amending legislation provides that it is to be effective "from and after July 1, 1973." Such language provides no room for a judicial construction otherwise.

Second, close analysis of the Schofield opinion indicates that the statutory provision at issue in the present case had no bearing whatsoever on the issues then presented to the court for its review. It will be noted that Schofield held that G.S. § 97-25 authorizes an employee to seek treatment in an emergency by a physician other than that selected by an employer where the employer's failure to provide medical services amounts merely to an inability to provide such care. The provision of the statute which is at issue in the present case was in no way involved in Schofield other than being set out in the opinion in a block quotation with the entire statutory section which happens to also include the pertinent provisions for emergency treatment, an issue upon which the decision ultimately turned. The question of retroactivity of the 1973 amendment was not even addressed by the court because the amendment in no way altered the provisions of the statute which dealt with emergency care.

It follows, therefore, that since we intimated and intended no retroactive application of the 1973 amendment in Schofield, and affirmatively disclaim such concept herein, it is irrelevant that the Industrial Commission failed to make any findings of fact as to whether the medical treatment involved was reasonably required to give relief.

For the reasons stated, the decision of the Court of Appeals is

Affirmed.

MEYER, J., did not participate in the consideration or decision of this case.