Grupen v. Thomasville Furniture Industries

220 S.E.2d 201 (1975) 28 N.C. App. 119

Charles A. GRUPEN, Employee,
v.
THOMASVILLE FURNITURE INDUSTRIES, Employer, and American Mutual Liability Insurance Company, Carrier.

No. 7518IC700.

Court of Appeals of North Carolina.

December 17, 1975. Certiorari Denied February 3, 1976.

Harold I. Spainhour, High Point, for plaintiff appellant.

Smith, Moore, Smith, Schell & Hunter by J. Donald Cowan, Jr., Greensboro, for defendant appellees.

Certiorari Denied by Supreme Court February 3, 1976.

ARNOLD, Judge.

The basis for plaintiff's motion for rehearing is G.S. 1A-1, Rule 60(b) which provides that a court may relieve a party from a final judgment on the basis of "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)." (See Rule XX, 6, of the Rules of the North Carolina Industrial Commission.) A motion for further hearing on the grounds of introducing newly discovered evidence rests in the sound discretion of the Industrial Commission. Mason v. Highway Commission, 273 N.C. 36, 159 S.E.2d 574 (1968); Owens v. Mineral Co., 10 N.C.App. 84, 177 S.E.2d 775 (1970).

Plaintiff's new evidence is Dr. Palmer's opinion that plaintiff's injury is permanent. Plaintiff contends that the type of injury to the brain involved in his case sometimes is of a varying duration and can be permanent if it persists long enough. He argues that a doctor cannot be expected to make a determination of permanency until a certain length of time is given to allow the condition to run its course.

Defendant argues that another medical examination (by Dr. Palmer) is not "newly discovered evidence" within the meaning of G.S. 1A-1, Rule 60(b). We agree with this contention.

In Harris v. Construction Company, 10 N.C.App. 413, 179 S.E.2d 148 (1971), the employee was examined by a physician a month following the hearing by the deputy commissioner. It was held that evidence of the result of the examination was not newly discovered evidence.

This Court, in Harris v. Construction Company, supra, cited Ryan v. United States Lines Company, 303 F.2d 430 (2d Cir. 1962), where it was held that the results of a new physical examination was not "newly discovered evidence" which would allow reopening a judgment and granting a new trial under Rule 60(b) of the Federal Rules of Civil Procedure.

In the case of Campbell v. American Foreign S.S. Corporation, 116 F.2d 926 (2d Cir. 1941), an employer moved for a new trial based on affidavits showing that subsequent to trial an injured seaman had been continuously employed. It was held that this did not constitute "newly discovered evidence" because it was not evidence of facts existing at the time of the trial.

We hold that evidence presented by Dr. Palmer's affidavit is not "newly discovered evidence" within the meaning of G.S. 1A-1, Rule 60(b). "If it were ground for a new trial that facts occurring subsequent to the trial have shown that the expert witnesses made an inaccurate prophecy of the prospective disability of the plaintiff, the litigation would never come to an end." Campbell v. American Foreign S.S. Corporation, supra, at 928.

Even if plaintiff had presented "newly discovered evidence" the Commission correctly held that plaintiff had not moved for relief within one year as required by 1A-1, Rule 60(b). The Commission concluded that the one-year period began to run from Deputy Commissioner Dandelake's 31 May 1973 order.

Furthermore, we cannot say that plaintiff has exercised "due diligence" in pursuing his action. Plaintiff had two hearings before deputy commissioners concerning his change in condition, and he was also given an opportunity, prior to his scheduled hearing before the Full Commission, to develop his case. The Industrial Commission allowed plaintiff sufficient opportunity to develop his medical evidence and did not abuse its discretion in denying plaintiff's motion for rehearing on the basis of newly discovered evidence.

The opinion and award of the Commission granting the motion to dismiss plaintiff's petition for rehearing is affirmed.

Affirmed.

PARKER and HEDRICK, JJ., concur.