White v. Shoup Boat Corporation

135 S.E.2d 216 (1964) 261 N.C. 495

Jordan R. WHITE, Employee,
v.
SHOUP BOAT CORPORATION, Employer, and Shelby Mutual Insurance Company, Carrier.

No. 170.

Supreme Court of North Carolina.

March 25, 1964.

Clarence C. Boyan, High Point, Sapp & Sapp, Greensboro, for plaintiff appellee.

John H. Hall, Elizabeth City for defendant appellants.

RODMAN, Justice.

The Legislature when it enacted our first Workmen's Compensation Act anticipated employers and employees would, in most cases, be able to reach an agreement with respect to the employee's right to compensation. Hence it inserted in the Act a provision authorizing such agreements when made in the manner prescribed by the Industrial Commission, G.S. § 97-82. The wisdom of the statutory provision was referred to in Smith v. Red Cross, 245 N.C. 116, 95 S.E.2d 559, decided in 1956. As there noted, more than 95% of all claims for compensation because of industrial injuries were disposed of by agreements executed in conformity with the provisions of G.S. § 97-82. The percentage of claims so disposed of since the filing of that opinion has not decreased. See 17th Biennial Report of the North Carolina Industrial Commission.

The Commission has statutory authority to promulgate rules. G.S. § 97-80. Rule XI, promulgated by the Commission prior to September 1961, still in effect, is entitled "AGREEMENTS FOR PAYMENT OF COMPENSATION." This rule requires the use of Forms 21, 26 and 28B in disposing of claims under G.S. § 97-82. The information required by Form 21, is indicated in stating the facts in this case. Form 26, a supplement to Form 21, is not material to the disposition of this case.

Form 28B captioned, "REPORT OF COMPENSATION AND MEDICAL PAID," replaced Form 27 quoted in Smith v. Red Cross, supra. In substance the forms are the same. Item 14 inquires: "Does this report close the case?" It is the form required when carrier reports the closing of a claim. The insurance carrier is required to send a copy of this form to the employee within 16 days after the last payment of compensation. At the bottom of the form in bold face type is: "NOTICE TO EMPLOYEE: If the answer to Item No. 14 above is ``Yes', this is to notify you that upon receipt of this form your compensation stops. If you claim further benefits, you must notify the Commission in writing within one (1) year from the date of receipt of your last compensation check."

An injured employee may, if his condition changes, apply to the Commission for additional compensation. The time, in which additional compensation may be requested, is limited to 12 months "from the date of the last payment of compensation pursuant to an award * * *". G.S. § 97-47.

In interpreting this statute, we have said that an agreement to pay compensation, when approved by the Commission, is the equivalent of an award. Smith v. Red Cross, supra; Neal v. Clary, 259 N.C. 163, 130 S.E.2d 39; Pratt v. Central Upholstery Co., 252 N.C. 716, 115 S.E.2d 27; Biddix v. Rex Mills, 237 N.C. 660, 75 S.E.2d 777.

The language of the statute is clear. The claim is barred, if the request for compensation is not made within 12 months from the date of the last payment, unless perhaps the carrier is estopped to plead the lapse of time. The Commission was in error in concluding the statute began to run from January 12, 1962 when it approved the agreement to settle.

The conclusion we reach necessitates a reversal and consequent remand to the Industrial Commission; but this conclusion does not necessarily defeat employee's claim. The agreement which the Commission approved stated, "FIRST PAYMENT RECEIVED: Oct. 27, 1961." Notwithstanding this statement, carrier insists it was also the last payment. It is the mathematical product of the amount to be paid weekly for the agreed number of weeks. Did the carrier execute Form 28B and furnish the employee with a copy of that form? If so, was it furnished within 16 days as required by the Commission's order? What date does that form show as the date of last payment? If that form was not given the employee, as the rules require, he was deprived of information which the Commission specifically directed the carrier to furnish for his protection. It had legislative authority to require the insurance carrier to give employee this information. If the carrier failed to comply with the rule by giving employee notice of the limited time within which he could claim additional compensation, it failed to put the statute of limitations in operation.

The hearing commissioner concluded the carrier was not estopped to plead the bar provided by G.S. § 97-47. This conclusion was vacated by the Commission on employee's appeal. Presumably, because it was of the opinion the statute of limitations started to run from January 12, 1962, it did not find it necessary to make findings of fact or conclusions on this question. Employee is, we think, entitled to have the Commission find whether the insurance carrier complied with its rule.

Employee's assignments of error on his appeal to the Commission also seem to present the question of estoppel by conduct after notice of employee's change of condition. Ammons v. Z. A. Sneeden's Sons, Inc., 257 N.C. 785, 127 S.E.2d 575. These questions have not been, but should be, determined by the Commission.

Reversed.