Cowart v. Skyline Restaurant
Cowart v. Skyline Restaurant
Opinion of the Court
The determinative question raised by this appeal is whether the Full Commission’s finding of fact, labeled a conclusion of law, that the plaintiff had a substantial change of condition within two years of the last and final payment of compensation, is supported by any evidence in the record. We hold that it is not. Indeed, the evidence in the record compels the finding that plaintiff did not have a substantial change of condition within two years of the last and final payment of compensation.
The Commission obviously based its ultimate finding on the testimony of Dr. McConnachie, plaintiffs treating physician. We realize that, based on his examination of the plaintiff one day before the hearing and more than two years and seven months after the final payment of compensation, Dr. McConnachie testified that plaintiff had a change of condition; he did not, however, testify as to when such change occurred. Moreover, the same doctor wrote
In our opinion, no construction of the evidence contained in this record yields any support for the Commission’s ultimate finding and conclusion. The decision of the Full Commission, dated 22 February 1984, must be reversed and the proceeding remanded to the North Carolina Industrial Commission for the entry of an order dismissing plaintiffs claim for further compensation.
Reversed and remanded.
Dissenting Opinion
dissenting.
Implicit in the majority opinion is the requirement that plaintiffs change of condition must have actually occurred within two years of her final payment of compensation. In my opinion, the cases over the years reflect a requirement that when an injured worker seeks to establish a right to additional compensation based on a change of condition, the right must be asserted within two years of the last payment of compensation, but I have found no case which holds or even suggests that the worker must establish that the change of condition actually occurred within two years. Logically, once the claim is timely asserted, a worker should be as entitled to compensation for whatever degree of additional disability he may establish up to the time of hearing on his claim. In this case, Dr. McConnachie’s testimony established that plaintiff suffered a change of condition for the worse within two years of her last payment of compensation.
For these reasons, I respectfully dissent and vote to affirm the Commission’s award.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.