Giles v. Tri-State Erectors & Liberty Mutual Insurance

MORRIS, Judge.

Claimant’s sole question on appeal is whether the Industrial Commission erred in failing to make findings of fact based on evidence relating to the issue of permanent partial disability of the claimant’s right foot.

*152Claimant relies on Thomason v. Cab Company, 235 N.C. 602, 70 S.E. 2d 706 (1952), as supporting his position that this matter must be remanded for findings of fact. It is true that the Court held that matters before the Commission must be remanded if the findings of fact are insufficient to enable the Court to determine the rights of the parties. The Court used limiting language, however, which we think is significant and applicable to the situation before us. Justice Ervin, writing for the Court, said:

“If the findings of fact of the Industrial Commission are supported by competent evidence and are determinative of all the questions at issue in the proceeding, the court must accept such findings as final truth, and merely determine whether or not they justify the legal conclusions and decision of the commission. (Citations omitted.) But if the findings of fact of the Industrial Commission are insufficient to enable the court to determine the rights of the parties upon the matters in controversy, the proceeding must be remanded to the commission for proper findings. (Citations omitted.)” Op. cit. at 605. (Emphasis supplied.)

Unquestionably, the Industrial Commission has jurisdiction to determine all questions of compensable injury which are properly before it. Here, claimant stipulated at the 11 July 1972 hearing that the issue before the Commission was “disfigurement and the amount of permanent partial disability to' the arm”. We have to assume that claimant knew and was aware that he intended to introduce into evidence and did introduce, into evidence statements of Dr. Urbaniak with respect to the injury to the right foot. When the Hearing Examiner filed his award, claimant did not except to his setting out in the award the stipulation of the parties that “the questions involved in his hearing is (sic) the amount of disfigurement and the increase in permanent partial disability of the plaintiff’s right upper extremity”. Claimant appealed from the award, and his basis for appeal was that the award for disfigurement was inadequate. He specifically stated in his notice of appeal that all other grounds for appeal were waived and abandoned. The Full Commission entered its order on 15 February 1973 and, on its own motion, ordered an examination of claimant by Dr. Ur-baniak for the limited purpose of determining what amount of additional permanent partial disability, if any, claimant had with respect to his upper right extremity. On Dr. Urbaniak’s *153evidence, the Commission affirmed the Hearing Examiner’s award. Dr. Urbaniak again testified with respect to the right foot. On cross-examination, he readily conceded that a “good portion of his note of December 18, 1970 involved evaluation of this foot problem”. The 18 December 1970 note was, of course, written some 20 months prior to the hearing from which claimant appealed and at which he never mentioned any injury to or resulting disability to his right foot. It was not until 2 November 1973 that claimant brought up the alleged injury to claimant’s right foot. This was done by way of motion to reconsider asking that the Commission make an award for 10 % permanent partial disability of the right foot. This came at a time when all the evidence was in. Employer had had no prior notice of claimant’s claim in this respect and had had no opportunity to defend. Under the circumstances, it seems clear to us that claimant’s motion was properly denied. It was a too late attempt to do what should have been done some two years or more prior thereto.

Affirmed.

Chief Judge Brock and Judge Martin concur.