Grigg v. Pharr Yarns, Inc.

MALLARD, Chief Judge.

Plaintiff contends that the Commission erred in remanding the proceeding for further hearing in its orders filed 16 December 1970 and 22 December 1970. This contention is without merit. The plaintiff did not except to these orders of remand until after Deputy Commissioner Leake had, in effect, ruled against her by reducing the amount of the award. This exception was therefore not timely made. Moreover, at the hearing before Deputy Commissioner Leake, the plaintiff stipulated that the only questions to be determined at that hearing were the amounts of compensation plaintiff was entitled to receive for disfigurement and for permanent partial disability. If under G.S. 97-85 the action of the Commission in remanding the matter was irregular, such irregularity was waived by the plaintiff when she thus stipulated.

The next contention of the plaintiff is that the Commission erred in adopting as its own the award and opinion of Deputy Commissioner Leake. This contention is without merit. Whether the evidence supported the findings of fact was a proper matter for the Commission to consider. There was competent evidence before the Commission to support its findings of fact, and the facts found justify the conclusions of the Commission and also support the award made. Perry v. Bakeries *500Co., 262 N.C. 272, 136 S.E. 2d 643 (1964) and Snead v. Mills, Inc., 8 N.C. App. 447, 174 S.E. 2d 699 (1970), cert. denied, 277 N.C. 112.

Plaintiff does contend, however, and we agree, that the Commission erred in its “Opinion and Award” filed 16 December 1970 by taxing to the plaintiff one-half of the costs of that appeal to the Commission. From the record it appears that both parties appealed to the Full Commission, and although plaintiff’s “Application for Review” is dated prior to the defendants’ “Application for Review,” plaintiff ultimately prevailed against the defendants and costs follow the final judgment. 2 Strong, N. C. Index 2d, Costs, § 1.

Plaintiff, while this case was pending in the Court of Appeals, filed a written motion pursuant to G.S. 97-88 and requests this court to award reasonable attorney fees. G.S. 97-88 reads:

“Expenses of appeals brought by insurers. — If the Industrial Commission at a hearing on review or any court before which any proceedings are brought on appeal under this Article, shall find that such hearing or proceedings were brought by the insurer and the Commission or court by its decision orders the insurer to make, or to continue payments of benefits, including compensation for medical expenses, to the injured employee, the Commission or court may further order that the cost to the injured employee of such hearing or proceedings including therein reasonable attorney’s fee to be determined by the Commission shall be paid by the insurer as a part of the bill of costs.”

In the case before us, both parties appealed to the Commission from the two hearings conducted by the deputy commissioners, but only the plaintiff appealed to this court from the opinion and award of the Commission filed 21 February 1972. It is noted that the Commission in this opinion and award did award costs and counsel fees for plaintiff’s counsel as follows:

“Defendants shall pay all costs incurred, which shall include an additional counsel fee in the amount of $200.00 to be paid directly to counsel for plaintiff by defendants as part of the costs. * * * ”

*501Inasmuch as the hearing and proceedings in this case in the Court of Appeals “were brought by” the plaintiff, the motion of the plaintiff, under the provisions of G.S. 97-88, that this Court allow additional attorney fees for plaintiff’s attorney is denied.

The opinion and award of the Commission filed 16 December 1970 and the modification thereof filed 22 December 1970, in which it is provided that “Each side shall pay its own costs as the same relate to the appeal” are modified so as to require the defendants to pay the costs of the appeal.

The opinion and award of the Commission filed 21 February 1972 is affirmed.

Affirmed.

Judges Campbell and Britt concur.