Willis v. J. M. Davis Industries, Inc. , 13 N.C. App. 101 ( 1971 )

HEDRICK, Judge.

This appeal presents two questions : (1) Are the defendants estopped to plead the lapse of time as a bar to plaintiff’s claim for additional compensation? (2) Did the Commission make findings of fact determinative of all the questions at issue in this proceeding?

G.S. 97-47 will bar a claim for additional compensation if not made within twelve months of the date of the last payment of compensation, unless the defendants are estopped to plead the lapse of time. Watkins v. Motor Lines, 279 N.C. 132, 181 S.E. 2d 588 (1971) ; White v. Boat Corporation, 261 N.C. 495, 135 S.E. 2d 216 (1964) ; Sides v. Electric Co., 12 N.C. App. 312, 183 S.E. 2d 308 (1971).

The Industrial Commission’s Rule XI 5, promulgated pursuant to statutory authority, G.S. 97-80, provides1 that the defendants will send a copy of I.C. Form 28B to the claimant with his last payment of compensation for either temporary total disability or permanent partial disability.

In discussing the carrier’s duty to furnish the employee with a copy of Form 28B in accordance with the Commission’s rule, Justice Rodman, in White v. Boat Corporation, supra, wrote:

“ ... If that form was not given the employee, as the rules require, he was deprived of information which the Commission specifically directed the carrier to furnish for his protection. It had legislative authority to require the insurance carrier to give employee this information. If the carrier failed to comply with the rule by giving employee notice of the limited time within which he could claim additional compensation, it failed to put the statute of limitations in operation.”

In the present case the record discloses that the defendants did not comply with the Commission’s Rule XI 5 by sending a copy of Form 28B to the claimant with his last compensation check. The letter from plaintiff’s attorney to the Commission requesting a hearing, dated 30 July 1969, was received by the Commission on 31 July 1969, and Form 28B, dated 30 July 1968, was received by the Commission on 31 July 1968. The Commission found as a fact that the defendants prepared and furnished the plaintiff with a copy of Form 28B on 30 July 1968. Thus, it appears that plaintiff’s claim for additional compensation was made within twelve months of the time he was furnished a copy of Form 28B. Therefore, we hold the Commission was in error in concluding as a matter of law that defendants were not es-topped to plead the lapse of time as a bar to plaintiff’s claim for additional compensation.

Plaintiff contends the Commission failed to make findings of fact determining whether plaintiff’s present condition resulted from the compensable injury sustained on 27 March 1968. Obviously, one of the principal questions at issue in this proceeding is whether plaintiff’s present condition is a result of the injury sustained on 27 March 1968. It was the duty of the Commission to make findings of fact determinative of this question, and if findings of fact 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. Thomason v. Cab Co., 235 N.C. 602, 70 S.E. 2d 706 (1952); Morgan v. Furniture Industries, Inc., 2 N.C. App. 126, 162 S.E. 2d 619 (1968); Hudson v. Stevens and Co., 12 N.C. App. 366, 183 S.E. 2d 296 (1971). The Commission’s order made a detailed recital of plaintiff’s condition from the date of the injury until the time of the hearing. In its findings of fact the Commission recited a rather complete history of plaintiff’s treatment by Dr.-Goldner, and the doctor’s diagnosis and prognosis of plaintiff’s physical and mental condition, but nowhere did the Commission make a finding as to whether the condition described by Dr. Goldner bore any causal relation to the compensable injury of 27 March 1968. In Finding of Fact No. 13, the Commission merely stated that it was Dr. Goldner’s opinion that the. plaintiff had nerve root irritation probably secondary to trauma to the intervertebral disc.

We do not deem it necessary to recite the medical evidence. Suffice it to say, there is evidence in the record from which the Commission could make a finding as to whether plaintiff’s present condition was or was not a result of the injury on 27 March 1968.

For the reasons stated, so much of the Commission’s order as concludes as a matter of law that the defendants are not estopped to plead the lapse of time as a bar to plaintiff’s claim for additional compensation is reversed, and the proceeding is remanded for the Commission to make findings determinative of the questions at issue and proceed as the law requires.

Reversed and remanded.

Judge Graham concurs. Chief Judge Mallard dissents.