This matter was the subject of prior Industrial Commission Awards of temporary total and permanent partial disability. The essential issue on appeal is whether the Deputy Commissioner erred in refusing to set aside an approved Industrial Commission Form 26. Defendants paid plaintiff permanent partial disability for fourteen point four weeks due to his ten percent permanent partial disability to the left foot pursuant to the Form 26. Plaintiff was in fact entitled to thirty five weeks of permanent partial disability due to the total loss of his great toe pursuant to N.C. Gen. Stat. § 97-31(8).
Upon review of all of the competent evidence of record with reference to the errors assigned, and finding good grounds therefor, the Full Commission REVERSES the Opinion and Award of the Deputy Commissioner, and makes the following
FINDINGS OF FACT
1. Plaintiff is employed as an underground power line installer for Underground Construction Company.
2. Plaintiff sustained an admittedly compensable injury by accident giving rise to the Industrial Commission's prior awards of temporary and permanent partial disability benefits on April 12, 1989. Plaintiff was injured when he attempted to unjam the pallet discharge on a machine and the machine engaged. The resulting injury eventually required amputation of the left great toe. Plaintiff was rated with a ten percent (10%) permanent partial disability to the left foot.
3. Plaintiff's primary treating physician, Dr. Robert Logel, rated plaintiff with a ten percent permanent partial impairment to the left foot. When the Form 26 Agreement was submitted, neither the physician's Form 25R or other accompanying notes informed the commission that plaintiff's toe had been amputated.
4. The Industrial Commission's prior award for permanent partial disability was entered in error due to defendants negligent misrepresentation to the Commission and as a result shall be set aside.
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Based on the foregoing findings of fact, the Full Commission makes the following additional
CONCLUSIONS OF LAW
1. For loss of a great toe, plaintiff is entitled to thirty-five (35) weeks of permanent partial disability benefits. N.C. Gen. Stat. § 97-31(8).
2. The Industrial Commission's award of permanent partial disability was approved in error due to the negligent misrepresentation by defendants. N.C. Gen. Stat. § 97-17;Hogan v. Cone Mills Corp., 315 N.C. 127, 138,337 S.E.2d 477 (1985).
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Based on the foregoing findings of fact and conclusions of low, the Full Commission enters the following
ORDER
1. Defendant shall pay plaintiff thirty-five (35) weeks of permanent partial disability due to the total loss of the left great toe pursuant to N.C. Gen. Stat. § 97-31(8), subject to the attorney fee hereinafter approved. Defendants are entitled to a credit for the fourteen point four (14.4) weeks permanent partial disability paid pursuant to the prior award. Said compensation having accrued, it shall be paid in lump sum.
2. A reasonable attorney fee of 25% of Said compensation is approved for plaintiff's counsel, and shall be paid directly to him in lump sum.
3. Defendants shall bear the costs.
S/ _____________ J. RANDOLPH WARD COMMISSIONER
CONCURRING:
S/ _____________ J. HOWARD BUNN CHAIRMAN
S/ _____________ MOGAN S. CHAPMAN DEPUTY COMMISSIONER