Watkins v. Central Motor Lines, Inc.
181 S.E.2d 588
N.C.
1971
Check Treatment
HUSKINS, Justice.

Is рlaintiff’s permanent partial disability a “change in condition” within the meaning of G.S. 97-47? If so, are defendants estopped to plead the statute in bar of plaintiff’s claim for additional compensation? Answers to these questions are determinative on this appeal.

Where a claimant suffers an injury that results in temporary total disability followed by a speсific disability compensable under G.S. 97-31, compensation for the specific disability is payable in addition to that awarded for temporary total disability. Rice v. Panel Co., 199 N.C. 154, 154 S.E. 69 (1930). Plaintiff contends he is thus entitled to additional compensation for forty-four weeks to cover the twenty percent permanent partial disability of his right arm — a specific disability under G.S. 97-31(13). Defendants contеnd his claim for additional compensation is barred by G.S. 97-47 because (1) the claim arises from a change in plaintiff’s condition and (2) he failed to notify the Industrial Commission and make claim for it within twelve months from the date on which he received the last payment of compensation for his temporary total disability. These conflicting contentions' require us to decide whether, on the facts in this case, plaintiff’s permanent partial disability is a “change in condition” within the meaning of G.S. 97-47.

G.S. 97-47, in pertinent part, provides: “Upon its own motion or upon the application of any party in interest on the grounds of a change of condition, the Industrial Commission may review any award, and on such review may make an award ending, diminishing, оr increasing the compensation previously *137 awarded, subject to the maximum or minimum provided in this article, and shall immediately send to the parties a copy of the award. Nо such review shall affect such award ‍‌​‌​‌​​​‌‌‌‌‌‌​​‌‌​​‌​​‌‌‌‌​‌​‌​‌​​​‌‌‌‌‌‌‌​‌‌​‌‍as regards any moneys paid but no such review shall be made after twelve months from the date of the last payment of compensatiоn pursuant to an award under this article . ” The Commission’s authority under this statute is limited to review of prior awards, and the statute is inapplicable in instances where there has been no previous final award. Biddix v. Rex Mills, 237 N.C. 660, 75 S.E. 2d 777 (1953); Pratt v. Upholstery Co., 252 N.C. 716, 115 S.E. 2d 27 (1960). In such cases, jurisdiction is retained by and rеmains in the Commission pending a termination of the case by final award. Branham v. Panel Co., 223 N.C. 233, 25 S.E. 2d 865 (1943). No statute runs against a litigant while his case is pending in court. Hanks v. Utilities Co., 210 N.C. 312, 186 S.E. 252 (1936).

The term “disability,” as used in the Workmen’s Compensation Act, mеans incapacity because of injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of injury. G.S. 97-2(9). If an award is madе by the Industrial Commission, payable during disability, there is a presumption that disability lasts until the employee returns to work and likewise a presumption that disability ends when the employee returns to work at wages equal to those he was receiving at the time his injury occurred. Tucker v. Lowdermilk, 233 N.C. 185, 63 S.E. 2d 109 (1951).

Here, plaintiff returned to work for the same employer on 2 January 1968 at the same wage he was' receiving prior to his injury. He has worked continuously since that time and lost no ‍‌​‌​‌​​​‌‌‌‌‌‌​​‌‌​​‌​​‌‌‌‌​‌​‌​‌​​​‌‌‌‌‌‌‌​‌‌​‌‍wages. On 18 January 1968 he received his last weekly compensation payment for the period during which hе was disabled. He signed and received a copy of Form 28B which by its terms closed the case (except for medical). That Form notified him that he would receive no further compensation paymеnts and that if he claimed further benefits he must notify the Commission in writing within one year from date of receipt of his last compensation check. Form 28B was duly filed with the Commission. Thus, plaintiff’s disability due to his injury presumptively ended on 18 January 1968. Nothing in the medical reports up to that time indicated any permanent partial disability. In a medical report dated 29 July 1967 (Plaintiff’s Exhibit 8), Dr. *138 Hickman of Fort Wayne, Indiana, stated that plaintiff’s accident had not resulted in any permanent disability. If any of the parties anticipated at that time that plaintiff would not fully recover and that his injury wоuld result in permanent partial disability, such fact is not reflected in the medical reports or in the Commission’s findings of fact. Hence, the case was closed. “A closing receipt purports to be a final settlement and indicates that no further compensation will be paid unless request for hearing for change of condition is made within a year from date of the receipt.” Pratt v. Upholstery Co., supra (252 N.C. 716, 115 S.E. 2d 27). Any change in plaintiff’s physical condition thereafter, entitling him to additional compensation under the Act, was a “change in condition” within the meaning of that term аs used in G.S. 97-47 and required him to apply to the Industrial Commission on or before 18 January 1969 for review of its previous award. “Where the harmful consequences of an injury are unknown when the amоunt of compensation to be paid has been determined by agreement but subsequently develops, the amount of compensation to which the employee is entitled сan be redetermined within the statutory period for reopening. It is a ‘change in condition’ as the term is used in the statute.” Smith v. Red Cross, 245 N.C. 116, 95 S.E. 2d 559 (1956). “The fact that the change necessitates making an awаrd in an entirely different category, as when an original award was one of temporary benefits for time loss and the award on reopening would be for ‍‌​‌​‌​​​‌‌‌‌‌‌​​‌‌​​‌​​‌‌‌‌​‌​‌​‌​​​‌‌‌‌‌‌‌​‌‌​‌‍total permanent disability, is no obstacle to reopening.” Larson, Workmen’s Compensation, § 81.31. So it is here. We hold that plaintiff’s evidence shows a change in condition and G.S. 97-47 applies.

The agreеment between the parties on Form 21, approved by the Commission on 16 June 1967, provided for payment of compensation at the rate of $37.50 per week “for necessary weeks.” This constituted an award by the Commission enforceable, if necessary, by a court decree. G.S. 97-87; Biddix v. Rex Mills, supra. This was followed by the execution and filing of Form 28B closing the case on 18 Jаnuary 1968 when plaintiff received his last payment of compensation pursuant to that award. Seventeen months elapsed before plaintiff filed Form 33 with the Commission requesting a hearing and further award of compensation on account of his permanent partial disability. This comes too late unless defendants are estopped to pleаd the lapse of time. Lee v. Rose’s Stores, Inc., 205 N.C. 310, 171 S.E. *139 87 (1933) ; Smith v. Red Cross, supra; Ammons v. Sneeden’s Sons, Inc., 257 N.C. 785, 127 S.E. 2d 575 (1962) ; White v. Boat Corp., 261 N.C. 495, 135 S.E. 2d 216 (1964).

We now turn to the question of estoppel. Plaintiff contends defendants are estopped to plead the lapse of time by reason of misrepresentations made to him by A. C. Hinnant, employer’s agent in charge of Workmen’s Compensation claims, at the time he signed Form 28B closing his case. Plaintiff argues that Hinnant’s statements not only induced him to sign the form but also lulled him into believing that the lapse of time following the last payment of compensation would not affect his right to receive additional compensation for permanent partial disability — “that would be left up to when the doctors released and rated me.”

“The law of estoppel applies in compensаtion proceedings as in all other cases.” Biddix v. Rex Mills, supra. In McNeely v. Walters, 211 N.C. 112, 189 S.E. 114 (1937), Chief Justice Stacy, speaking for the Court, said: “The doctrine of equitable estoppel is based on an applicatiоn of the golden rule to the everyday affairs of men. It requires ‍‌​‌​‌​​​‌‌‌‌‌‌​​‌‌​​‌​​‌‌‌‌​‌​‌​‌​​​‌‌‌‌‌‌‌​‌‌​‌‍that one should do unto others as, in equity and good conscience, he would have them do unto him, if their positions werе reversed. ... Its compulsion is one of fair play.”

Actual fraud, bad faith, or an intent to mislead or deceive is not essential to invoke the equitable doctrine of estoppel in pais. Oliver v. Fidelity Co., 176 N.C. 598, 97 S.E. 490 (1918) ; Waugh v. Lennard, 69 Ariz. 214, 211 P. 2d 806 (1949). “It is sufficient for this рurpose that the debtor made misrepresentations which misled the creditor, who acted upon them in good faith, to the extent that he failed to commence actiоn within the statutory period.” 51 Am. Jur. 2d, Limitation of Actions, § 433. Accord, Schroeder v. Young, 161 U.S. 334, 40 L. Ed. 721, 16 S. Ct. 512 (1896). Such tolling of the statute may result from the honest but entirely erroneous expression of opinion as to some significant legal fact. Lаrson, Workmen’s Compensation, § 81.51; Waugh v. Lennard, supra; Annotation, Estoppel to rely on statute of limitations, 24 A.L.R. 2d 1413 (1952). Justice Higgins, speaking for the Court in Nowell v. Tea Co., 250 N.C. 575, 108 S.E. 2d 889 (1959), aptly expressed the doctrine in this language: “The lapse of time, when properly pleaded, is a technical legal defense. Nevеrtheless, equity will deny the right to assert that defense when delay has been induced by acts, representations, or conduct, the repudiation of which would amount *140 to a breach of good faith.” Accord, Ammons v. Sneeden’s Sons, Inc., supra.

No facts were found relative to the question of estoppel. Plaintiff’s evidence on that question was sufficient to require the Industrial Commission to find the facts with respect thereto and, upon such findings, tо determine whether defendants are estop-ped to plead the lapse of time by reason of plaintiff’s reliance on the employer’s representations, “thе repudiation ‍‌​‌​‌​​​‌‌‌‌‌‌​​‌‌​​‌​​‌‌‌‌​‌​‌​‌​​​‌‌‌‌‌‌‌​‌‌​‌‍of which would amount to a breach of good faith.” If defendants are not estopped, the case is closed. If estopped, the Commission is required to consider the evidence in the record, and any additional pertinent evidence either party may desire to offer, and determine whether a further award is justified for changе in condition, and, if so, the amount thereof.

The decision of the Court of Appeals is reversed. The case will be remanded by that court to the North Carolina Industrial Commission for disposition in accordance with this opinion.

Reversed and remanded.