Graham v. City of Hendersonville , 42 N.C. App. 456 ( 1979 )

CLARK, Judge.

Defendants first contend that the Industrial Commission had no jurisdiction, authority, or power to hold a hearing and to set aside an order of a Commissioner approving a compromise agreement.

G.S. 97-17 provides, in pertinent part that:

“. . . Provided, however, that no party to any agreement for compensation approved by the Industrial Commission shall thereafter be heard to deny the truth of the matters therein set forth, unless it shall be made to appear to the satisfaction of the Commission that there has been error due to fraud, misrepresentation, undue influence or mutual mistake, in which event the Industrial Commission may set aside such an agreement.” (Emphasis added).

This statutory provision clearly grants the Industrial Commission the authority to rehear and set aside prior orders approving settlements on any one of the stated grounds.

In Pruitt v. Knight Publishing Co., 289 N.C. 254, 221 S.E. 2d 355 (1976), the Supreme Court set forth additional guidelines for setting aside prior orders of the Commission. In Pruitt, the Supreme Court stated that in order for the plaintiff to attack a settlement agreement which had been approved by the Commission, he must “make application ... for a further hearing for that purpose. In such event, the Industrial Commission shall hear the evidence offered by the parties, find the facts with respect thereto, and upon such findings determine whether the agreement was erroneously executed due to fraud, misrepresentation, undue influence or mutual mistake. If such error is found, the Commission may set aside the agreement, G.S. 97-17, and determine whether a further award is justified and, if so, the amount thereof.” 289 N.C. at 260, 221 S.E. 2d at 359. It is abundantly clear that the Industrial Commission has the authority to set aside settlement agreements if the settlement was obtained by fraud, misrepresentation, undue influence, duress or mututal mistake. Defendants’ first assignment of error is overruled.

Defendants also contend that there was insufficient evidence to support the Deputy Commissioner Denson’s Finding of Fact No. 27. The Deputy Commissioner found that:

“Defendants through Tomblin represented to the plaintiff that there was a controversy on the causal connection of his amputation and his work-related injury. That representation was false as clearly indicated by medical reports sent defendants by Dr. Lampley. Tomblin made that representation either knowing it to be false or making it recklessly without due inquiry into its validity. Tomblin intended that the plaintiff rely on the representation and plaintiff did, in fact, rely on it to his detriment.”

Upon review of an order of the Industrial Commission, this Court does not weigh the evidence, but determines only whether there is evidence in the record to support the finding made by the Commissioner. If there is any evidence of substance which directly or by reasonable inference tends to support the findings, the court is bound by such finding, even though there is evidence that would have supported the finding to the contrary. Russell v. Pharr Yarns, Inc., 18 N.C. App. 249, 196 S.E. 2d 571 (1973).

Defendants contend, first, that the plaintiff presented insufficient evidence to support the finding that the representation that there was a serious question as to causation of plaintiff’s injuries was false. We cannot agree. On 27 December 1973, Dr. Lampley conducted his initial examination of plaintiff. The plaintiff’s toes had a dusky, bluish discoloration, and his foot was red and swollen. Dr. Lampley diagnosed plaintiff’s injuries as frostbite. By 8 January, the plaintiff’s toe had become gangrenous, and Dr. Lampley demarcated a part of the right great toe. Prior to 12 April 1973, defendants entered into an agreement for compensation in which the parties stipulated:

“2. That said employee sustained an injury by accident arising out of and in the course of said employment on the following date: (Date of Accident) December 13, 1972.

3. That the accident resulted in the following injuries: (Description of Injury) Injured right foot.”

Dr. Lampley testified that the ultimate condition of plaintiff’s leg was a progressive change dating back to the injury. Mr. Tomblin testified that a medical report in plaintiff’s file, dated 23 March 1973, indicated that plaintiff was suffering from frostbite. On 19 October 1973, the parties filed a Supplemental Memorandum of Agreement with the Industrial Commission which compensated plaintiff for 50% partial permanent disability of his right great toe, which had been amputated on 8 January 1973 due to frostbite and gangrene. This evidence tends to show that, at the time Tomblin represented to plaintiff that there was a serious question as to causation, the defendants had already stipulated that the injury to plaintiff’s right foot, diagnosed as frostbite and gangrene, arose out of and in the course of plaintiff’s employment at Oakdale Cemetery. There was, therefore, sufficient evidence to support the finding of fact by Deputy Commissioner Denson that Tomblin’s statement to plaintiff was false.

Defendants, however, contend that Tomblin was not aware that the other toes had been amputated and that he believed that there was a serious dispute as to the causation of plaintiff’s injuries.

The evidence for the plaintiff tends to show that Tomblin knew of the involvement of frostbite from the medical records in plaintiff’s file and that he knew, or was reckless in failing to know, of the stipulation as to causation in the Settlement Agreement entered by the parties in 1973. Dr. Lampley’s report, dated 4 February 1974, and received by defendant Bituminous Casualty Corporation on 7 February 1974, indicated that, due to gangrene, the plaintiff’s second, third and fourth toes were scheduled for amputation. The evidence is sufficient to support Deputy Commissioner Denson’s finding that Tomblin represented to plaintiff that there was a serious question as to causation knowing that it was false or in reckless disregard of its veracity.

We have carefully examined and considered defendants’ other assignments of error and find them to be without merit.

Affirmed.

Chief Judge MORRIS and Judge ERWIN concur.