Cloutier v. State , 57 N.C. App. 239 ( 1982 )

291 S.E.2d 362 (1982)

Sandra Elaine CLOUTIER, Employee, Plaintiff,
v.
STATE of North Carolina, Division of Prisons, Self-Insured, Employer, Defendant.

No. 8110IC433.

Court of Appeals of North Carolina.

May 18, 1982.

Freeman, Edwards & Vinson by George K. Freeman, Jr., Goldsboro, for plaintiff-appellant.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Ralf F. Haskell, Raleigh, for the State.

WEBB, Judge.

At the outset we note that the plaintiff has not made any argument that there was error in the Industrial Commission's finding of fact or award as to the disfigurement to the plaintiff's head. We affirm this portion of the opinion and award.

As to the other features of this case, we hold the Industrial Commission failed to make sufficient findings of fact for us to determine whether the rights of the parties were properly determined. See Thomason v. Cab Co., 235 N.C. 602, 70 S.E.2d 706 (1952) and Morgan v. Furniture Industries, Inc., 2 N.C.App. 126, 162 S.E.2d 619 (1968). The appellant contends she sustained permanent injury to important internal organs including her ethmoid and maxillary sinuses; her inner ear which causes permanent disequilibrium; and her sense of taste and smell. She argues that she should be compensated for these injuries under G.S. 97-31(24). She also argues that as a result of all her injuries, she has a permanent partial incapacity for work for which she should be compensated under G.S. 97-30.

It may be that on different evidence, findings of fact as were made in the instant case would be sufficient, but in this case we cannot so hold. In this case there was substantial uncontradicted evidence that the plaintiff had received permanent damage to her ethmoid and maxillary sinuses. The only finding of fact that related specifically to this injury was a finding that her sinuses were fractured. There was evidence that plaintiff suffered damage to her inner ear which caused dizziness which had lasted to the time of the hearing. The Commission's finding of fact on this evidence was that the plaintiff suffered a concussion of the inner ear which causes dizziness. There was also evidence that plaintiff has suffered a permanent loss of her taste and smell. The Commission's finding of fact on this evidence is that the "Plaintiff also experiences a loss of her sense of taste and smell." Under its findings of fact the Commission found that the plaintiff had "not suffered the loss of or permanent injury to an important external or internal organ." On the evidence in this case and the findings of fact, we do not know whether the Commission reached this result because it did not consider there was permanent injury to the sinuses, inner ear, or the plaintiff's sense of taste and smell or whether the Commission did not consider any of these important internal organs. We believe there should be more complete findings of fact on the evidence as to these features of the case.

As to the plaintiff's contention that she has suffered permanent partial disability, the Commission found that "there is no competent evidence of record in this case at this time to show permanent partial disability based on condition of plaintiff's inner ear." The plaintiff contends that her permanent partial disability is based not only on the problems with her inner ear but also on her other permanent injuries including sinusitis; severe headaches; inability to wear prescription glasses; heavy sinus drainage causing pain in the throat and nausea; facial pains; and lack of hand-eye coordination. The evidence is that plaintiff has to take medication for these symptoms and combined with the pain and suffering and the effects of the medicine, she has a reduced capacity for work. We believe there should be findings of fact on this evidence in order that we may determine whether the Commission has properly awarded or denied compensation for permanent partial disability under G.S. 97-30.

The defendant contends there should be no award for the damage to the sinuses. It says this is so because they are not important internal organs. The defendant bases this contention on the testimony of Dr. Ralph that their only known function is to lighten the weight of the facial bones. Dr. Ralph also testified that these were important internal parts of the body. He testified further that there were nerves that run through the ethmoid sinus which were damaged as a result of the trauma causing persistent pain in her teeth. He testified further that some of the mucous production which causes excess drainage was due to the trauma to her ethmoid sinus. We believe that this testimony as to the consequences of damage to the sinuses demonstrates they are important internal organs.

We believe the loss of sense of taste and smell is compensable as the loss of an important internal organ. See Arrington v. Engineering Corp., 264 N.C. 38, 140 S.E.2d 759 (1965). The Commission should make findings of fact on the evidence as to this feature of the case.

The defendant contends it was not error for the Commission not to find permanent damage to the plaintiff's inner ear because the record does not show that she had suffered permanent damage. The evidence is equivocal on this point. Dr. Ralph testified it is very likely a permanent condition but that he would defer to Dr. Sabiston's opinion. Dr. Sabiston stated in his letter that he did not think it would be permanent. In the affidavit from Dr. Sabiston which the plaintiff asked to be considered by the Full Commission, he stated that the condition had not cleared up some three years after the assault and he could not say the symptoms would ever terminate. The Commission may make findings of fact on the part of the case after considering Dr. Sabiston's testimony with the other evidence.

As to the claim of plaintiff for permanent partial disability, there was evidence that because of the pain and the drugs the plaintiff took to relieve the pain, she did not have her full capacity for work. The Commission's only finding of fact as to disability was that there was "no competent evidence of record in this case at this time to show permanent partial disability based on condition of plaintiff's inner ear." We believe there should be more complete findings of fact as to whether the plaintiff has suffered permanent injury from any or all her injuries. We note that if the Full Commission finds sufficient facts based on competent evidence that the plaintiff has suffered injuries which are compensable under G.S. 97-31 and finds she has not been permanently partially disabled for any other reason, she may not receive compensation for permanent partial disability under G.S. 97-30. See Perry v. Furniture Co., 296 N.C. 88, 249 S.E.2d 397 (1978).

The evidence shows that the plaintiff had retained her job and was earning more at the time of the hearing than at the time of injury. For this reason, no compensation may be paid for permanent partial disability. If the Full Commission should find facts upon which the plaintiff is entitled to recover for permanent partial disability, it may retain jurisdiction for future adjustments in the event the plaintiff's earnings should diminish. See Branham v. Panel Co., 223 N.C. 233, 25 S.E.2d 865 (1943).

The plaintiff assigns error to the Full Commission's refusal to reopen the hearings to take additional evidence. We believe this assignment of error has merit. G.S. 97-85 provides that when there is an appeal to the Full Commission it shall receive further evidence "if good ground be shown therefor." In the instant case two letters from Dr. Sabiston were received in evidence at the hearing before Deputy Commissioner Bryant. These letters were equivocal as to the permanency of the plaintiff's disequilibrium. At the hearing before the Full Commission the plaintiff offered an affidavit from Dr. Sabiston in which as a result of further treatment and examination of the plaintiff after the hearing before Deputy Commissioner Bryant, he was able to give a more definitive opinion in regard to her condition. The plaintiff also offered to introduce into evidence testimony from Dr. Samuel B. McLamb in regard to treatment she had received from Dr. McLamb after the hearing before Deputy Commissioner Bryant and her own testimony as to her treatment and symptoms during this time. All this evidence bore directly on the plaintiff's condition which was in question before the Full Commission. It was not available at the hearing before Deputy Commissioner Bryant. We believe this was "good ground" for taking further evidence. Rule XX(6) of the Rules of the Industrial Commission provides that "motions to take additional evidence on appeal before the Full Commissioner [sic] will be governed by the general law of the State for the granting of new trials on the grounds of newly discovered evidence." We believe that under this rule the motion should have been allowed. The evidence was not cumulative; the plaintiff could not have obtained it prior to the hearing before Deputy Commissioner Bryant; and there could be a different result if this evidence is considered. See 12 Strong's N.C. Index 3d, Trials § 49 (1978) for a discussion of new trials for newly discovered evidence.

The plaintiff's last assignment of error deals with the attorney's fee and the costs. The plaintiff and her attorney entered into a contract under the terms of which her attorney was to receive one-third of the amount received subject to the approval of the Industrial Commission. The Full Commission allowed the plaintiff's attorney a fee of $1,500.00 which was less than one-third of the recovery. G.S. 97-90(c) provides in part:

"If an attorney has an agreement for fee or compensation under this Article, he shall file a copy or memorandum thereof with the hearing officer or Commission prior to the conclusion of the hearing. If the agreement is not considered unreasonable, the hearing officer or Commission shall approve it at the time of rendering decision. If the agreement is found to be unreasonable by the hearing officer or Commission, the reasons therefor shall be given and what is considered to be reasonable fee allowed."

The Full Commission made no finding of reasonableness or unreasonableness as to the agreement for the attorney's fee. It was therefore error under G.S. 97-90(c) not to approve the agreement.

The plaintiff also contends the Full Commission did not tax all the costs of taking the deposition of Dr. Ralph. Prior to the hearing before Deputy Commissioner Bryant, Dr. Ralph moved to Florida. Deputy Commissioner Bryant ordered that Dr. Ralph's deposition be taken in Florida. The Full Commission ordered the cost of the transcript to be taxed as a part of the costs. It did not allow as a part of the costs the travel expenses of the plaintiff's attorney in taking the deposition. We believe this deposition was vital to the hearing. The travel expenses of the attorney who took the deposition is part of the cost of taking the deposition under G.S. 97-80 and should have been so taxed by the Full Commission.

For the reasons stated in this opinion, we reverse the opinion and award of the Industrial Commission and remand for further proceedings.

Reversed and remanded.

VAUGHN and HILL, JJ., concur.