Cape v. WNC Pallet & Forest Products Co. , 23 N.C. App. 645 ( 1974 )

HEDRICK, Judge.

This appeal presents the question of whether the facts found support the conclusion that the “ [p] laintiff is entitled to additional compensation for Temporary Total Disability from the last payment of compensation to him in the latter part of February 1972, to June 8, 1973, at the rate of $56.00 per week for such period.”

G.S. 97-29, in pertinent part, provides: “[W]here the incapacity for work resulting from the injury is total, the employer shall pay or cause to be paid ... to the injured employee during such total disability a weekly compensation. . . .” [Emphasis ours.]

G.S. 97-83, in pertinent part, provides:

“If the employer and the injured employee or his dependents fail to reach an agreement, in regard to compensation under this Article within 14 days after the employee 'has knowledge of the injury or death, or if they have reached such an agreement which has been signed and filed with the Commission, and compensation has been paid or is due in accordance therewith, and the parties thereto {hen disagree as to the continuance of any weekly payment under such agreement, either party may make application .to the Industrial Commission for a hearing in regard to the matters at issue, and for a ruling thereon.”

The stipulation entered into by the parties at the hearing conclusively established that the injury suffered by the pontiff on 5 July 1971 was compensable; and the agreement entered into between the parties in August of 1971 established the defendant’s liability to pay weekly compensation to the plaintiff for temporary total disability. However, when the defendant stopped making the payments for temporary total disability on 22 February 1972 and the plaintiff requested a hearing, the issue was raised as to whether the plaintiff was still disabled within the meaning of the Workmen’s Compensation Act. While there is some evidence in the record that would support a finding that the plaintiff was disabled from 22 February 1972 until 8 June 1973, the Commission failed to make any findings of fact regarding plaintiff’s disability during this period of time. Thus, the Commission’s conclusion that the plaintiff is entitled to additional compensation for temporary total disability is erroneous.

Additionally, defendant contends that the finding made by the Commission that “ [p] laintiff refused to have a myelogram carried out” precludes a conclusion that plaintiff is entitled to additional compensation. G.S. 97-27, in pertinent part, provides:

“After an injury, and so long as he claims compensation, the employee, if so requested by his employer or ordered by the Industrial Commission, shall . . . submit himself to examination, at reasonable times and places, by a duly qualified physician or surgeon designated and paid by the employer or the Industrial Commission. * * * If the employee refuses to submit himself to or in any way obstructs such examination requested by and provided for by the employer, his right to compensation and his right to take or prosecute any proceedings under this Article shall be suspended until such refusal or objection ceases, and no compensation shall at any time be payable for the period of obstruction, unless in the opinion of the Industrial Commission the circumstances justify the refusal or obstruction.”

The evidence contains many references to numerous letters and reports which we assume relate to the question of whether the plaintiff’s right to compensation was suspended pursuant to G.S. 97-27, but these letters and reports were not made a part of the record on appeal. With respect to this matter, the record is skimpy, the evidence is confused, and the findings made by the Commission lack the necessary specificity to determine this critical issue.

Upon remand, the Commission must make findings of fact sufficient to determine (1) whether the plaintiff was disabled within the meaning of the Workmen’s Compensation Act from 22 February 1972 until 8 June 1973; (2) whether the plaintiff’s right to claim such compensation was suspended because he refused to submit himself to a myelographic examination requested by the defendant or ordered by the Commission; or (3) if he did refuse, whether such refusal was justified under the circumstances.

Vacated and remanded.

Judges Britt and Morris concur.