Gupton v. Builders Transport

Justice MEYER

dissenting.

For the reasons stated in my dissenting opinions in Whitley v. Columbia Lumber Mfg. Co., 318 N.C. 89 , 348 S.E. 2d 336 (1986), and Fleming v. K-Mart Corp., 312 N.C. 538 , 324 S.E. 2d 214 (1985), I dissent. I also wish to add the following:

THE QUESTION OF WHETHER TO EXTEND THE RULING IN WHITLEY TO N.C.G.S. § 97-30 IS NOT PROPERLY BEFORE THIS COURT.

Building on the erroneous decision in Whitley , the majority, once again by judicial legislation, extends the ruling in Whitley as to N.C.G.S. § 97-31 to N.C.G.S. § 97-30, a result never intended by our legislature. It has chosen to do so in a case in which the question is not properly presented. At the hearing before Deputy Commissioner Burgwyn, plaintiff based his claim for benefits under N.C.G.S. § 97-30 on two theories. First, plaintiff contended that his loss of visual field is not compensable as a scheduled injury since he suffered no loss of “visual acuity.” Second, plaintiff argued that the defendant “promised” payments under N.C.G.S. § 97-30 and that the Industrial Commission should enforce this promise. Plaintiff did not argue that his alleged loss of wage-earning capacity, in and of itself, entitled him to benefits under N.C.G.S. § 97-30.

Deputy Commissioner Burgwyn found that plaintiff had sustained a seven percent permanent partial disability of his right eye and concluded that he is entitled to an award under N.C.G.S. § 97-31(16). On appeal, the full Commission affirmed.

*45 Plaintiff appealed to the Court of Appeals and again based his argument for compensation under N.C.G.S. § 97-30 on facts other than his alleged loss of earning capacity. In an opinion filed 7 October 1986, the Court of Appeals affirmed the opinion and award of the Industrial Commission. Plaintiff filed a petition for rehearing on 24 October 1986, based on this Court’s decision in Whitley . The Court of Appeals denied plaintiffs petition on 28 October 1986. Plaintiff then filed a petition for discretionary review with this Court, arguing, for the first time, that he is entitled to compensation under N.C.G.S. § 97-30 solely on the basis of lost wages. Prior to the filing of this petition, the plaintiffs claim for benefits under N.C.G.S. § 97-30 hinged, not on lost wages, but on allegations that his eye injury was not a scheduled injury. This Court granted plaintiff’s petition, despite the fact that the question upon which plaintiff based his petition was not properly presented for review to the Court of Appeals. The question upon which plaintiff now bases his claim was not properly presented for review to the Court of Appeals and cannot properly be brought before this Court under Rule 16 of the North Carolina Rules of Appellate Procedure. See, e.g., State ex rel. Utilities Comm. v. Nantahala Power & Light Co., 313 N.C. 614, 649 , 332 S.E. 2d 397, 418-19 (1985) (“[T]his Court’s scope of review is limited to questions properly presented to the Court of Appeals[;] ... a party may not present for the first time in its brief to this Court, a question raising issues of law not set out in the assignments of error contained in the record on appeal.”); Sales Co. v. Board of Transportation, 292 N.C. 437, 443 , 233 S.E. 2d 569, 573 (1977) (“The potential scope of our review is limited by the questions properly presented for first review in the Court of appeals. . . . The attempt to smuggle in new questions is not approved.’ State v. Colson, 274 N.C. 295, 309 , 163 S.E. 2d 376, 386 (1968).”).

THE RULING IN WHITLEY SHOULD NOT GOVERN THIS CASE.

In his brief before this Court, plaintiff essentially argues that the Court of Appeals erred in failing to extend this Court’s decision in Whitley to the facts of his case. This argument is not persuasive. First, Whitley applies only to cases involving permanent total disability. In this action, the claimant is not permanently totally disabled. Second, this Court’s decision in Whitley is a departure from the law in effect at the time of Mr. Gupton’s injury. Accordingly, it should not apply to his claim for benefits.

*46 The Court of Appeals did not err in failing to apply Whitley to the facts of this case. The holding in Whitley is limited to claims of permanent total disability and is clearly distinguishable from the present case, in which it is undisputed that the claimant is presently employed. Moreover, this Court should not extend the decision in Whitley to claims of permanent partial disability. While the majority cites Hall v. Chevrolet Co., 263 N.C. 569 , 139 S.E. 2d 857 (1965), as authority for its position, it is quite clear that the intent is to extend Whitley .

In Hall the claimant was not, at the time of his initial hearing, in a position to pray for permanent partial disability. Because he had not attempted to go back to work, he was in no position to show the impairment of his wage earning capacity. Hall was based not on the theory of election, rather on the theory of newly discovered evidence, i.e., that he discovered his reduced earning capacity only upon his return to work. This Court so recognized in its opinion in Hall .

In Whitley , this Court judicially expanded the statutory liability of employers based, in part, on the legislature’s action in amending N.C.G.S. § 97-29 to allow for recovery of lifetime benefits:

As originally enacted, section 29 limited compensation for total permanent disability to a maximum of 400 weeks. The legislature removed the time limitation in 1973. . . . The legislature’s expansion of section 29 in 1973 reflects an obvious intent to address the plight of a worker who suffers an injury permanently abrogating his earning ability.

318 N.C. at 98 , 348 S.E. 2d at 341 (citations omitted). This Court relied on the legislative expansion of benefits under N.C.G.S. § 97-29 in reaching its decision in Whitley . Given that the legislature did not amend N.C.G.S. § 97-30 in a similar manner (N.C.G.S. § 97-30 still states: “and in no case shall the period covered by such compensation be greater than 300 weeks from the date of injury”), this Court should not extend the expanded liability imposed by Whitley to cases of permanent partial disability.

*47 Even if Whitley is apposite, it should not be applied to THE CLAIM NOW BEFORE THIS COURT.

Even if this Court does extend the holding in Whitley to workers who are not permanently totally disabled, this expanded statutory liability should not be applied to Mr. Gupton’s claim for benefits. A claimant’s right to compensation under the North Carolina Workers’ Compensation Act in cases of accidental injury is governed by the law in effect at the time of the injury. Wood v. Stevens & Co., 297 N.C. 636 , 256 S.E. 2d 692 (1979). The law in effect at the time of the injury includes any prior statutory construction by this Court. Interpretation of a statute, such as N.C.G.S. § 97-31, by the highest court of the state is generally regarded as an integral part of the statute. 73 Am. Jur. 2d Statutes § 143 (1974). See also Stynchombe v. Walden, 226 Ga. 63 , 172 S.E. 2d 402 (1970) (authoritative interpretation of a statute by the highest state court puts words into the statute as definitely as if it had been so amended by the legislature); Nobin v. Randolph Corp., 180 Va. 345 , 23 S.E. 2d 209 (1942) (construction part of a statute by the court of last resort becomes a component part of the statute).

The decision in Whitley was not the law “in effect at the time of the injury” and should not be applied to this action. While, as a general rule, a decision of a court of supreme jurisdiction that overrules a former decision is retrospective in its operation (see, e.g., Cox v. Haworth, 304 N.C. 571 , 284 S.E. 2d 322 (1981)), this rule does not apply to decisions such as Whitley in which there are compelling reasons against retroactive application. See, e.g., Rabon v. Hospital, 269 N.C. 1 , 152 S.E. 2d 485 (1967) (decision abolishing charitable immunity applied prospectively because of justified reliance on prior case law); Wilkinson v. Wallace, 192 N.C. 156 , 134 S.E. 401 (1926) (when contracts have been made and rights acquired in reliance on a prior decision, the contracts will not be invalidated nor vested rights impaired by a subsequent decision).

There are several compelling reasons to limit the application of Whitley solely to injuries occurring after 29 August 1986, the date the opinion was filed. First, if the North Carolina legislature had amended the act in a similar fashion, the amendments would not have applied to injuries occurring before the effective date of *48 the amendments. See, e.g., Wood v. Stevens & Co., 297 N.C. 636 , 256 S.E. 2d 692 . This Court’s “judicial amendment” should not be applied more broadly than would a legislative amendment. Second, there exists a need for stability in law, particularly in the construction of statutes. Powers v. Powers, 239 S.C. 423, 427 , 123 S.E. 2d 646, 647 (1962) (it is manifestly in the public interest that the law remain permanently settled, especially in the construction of statutes, “for if any change in the statutory law is desired, the General Assembly may readily accomplish it”). Prior to this Court’s decision in Whitley , numerous court decisions emphasized that when all of a claimant’s injuries are included in the schedule found in N.C.G.S. § 97-31, recovery is exclusively under that section. Employers, insurers, and self-insurers, as well as their attorneys, have relied on this statutory construction in setting premiums, in establishing reserve funds for claims, and in advising clients regarding liability and settlement options. This reliance was justified based on holdings of this Court concerning the application of the doctrine of stare decisis to decisions of statutory construction. See, e.g., Lowery v. Haithcock, 239 N.C. 67 , 79 S.E. 2d 204 (1953) (even though former decisions of the Court may have liberalized the mechanic’s lien statute beyond its original intent, the Supreme Court must apply the statute as previously construed by the Supreme Court). See also Rabon v. Hospital, 269 N.C. 1, 20 , 152 S.E. 2d 485, 498 (“This Court has never overruled its decisions lightly. No Court has been more faithful to stare decisis”). Given the reliance placed on prior decisions of this Court, employers, insurers, and self-insurers should be provided with an opportunity to protect themselves against the expanded liability imposed by Whitley . Accordingly, this Court should hold that Whitley will not be applied to injuries occurring before the opinion was filed. See, e.g., Rabon v. Hospital, 269 N.C. 1, 21 , 152 S.E. 2d 485, 499 (“Recognizing, however, that hospitals have relied upon the old rule of immunity and that they may not have adequately protected themselves with liability insurance . . . [t]he rule of liability herein announced applies only to this case and to those cases arising after January 20,1967, the filing date of this opinion.”).

This dissent should not be interpreted as reflecting a belief on my part that a claimant should not be entitled to select a remedy as between the schedule in N.C.G.S. § 97-31 and the *49 coverage provided in N.C.G.S. § 97-30. I believe that a claimant should have that election. That decision, however, rests with the legislature and not with this Court. As I read the law as enacted by our legislature, this claimant’s injuries are all included in the schedule set out in N.C.G.S. § 97-31. Consequently, under the law in effect at the time of the injury, his entitlement to compensation is exclusively under that section. The Industrial Commission has no authority to award benefits which are not otherwise recoverable under the Act, and the Court of Appeals could not uphold such an award, if made.

As stated by the Court of Appeals in Little v. Penn Ventilator Co., 75 N.C. App. 92 , 330 S.E. 2d 276 (1985), aff'd in part, 317 N.C. 206 , 345 S.E. 2d 204 (1986):

We agree that this result is harsh on plaintiff; he has undoubtedly suffered a serious injury which, while not presently disabling, could manifest itself later in the form of partial or total blindness. . . . However, we note again that plaintiff s right to recovery of any medical expenses is entirely statutory and that any change in the law is a legislative responsibility. While we are empowered to declare and enforce plaintiffs rights under the law, we may not enlarge them, no matter how compelling the facts may be.

Little v. Penn Ventilator Co., 75 N.C. App. at 98, 330 S.E. 2d at 280 . It is unfortunate that the plaintiff sustained an eye injury which prevents him from continuing his job as a truck driver. However, the employer is only liable for those benefits recoverable under the Workers’ Compensation Act at the time of the injury, and the benefits cannot be enlarged by this Court no matter how compelling the facts may be. The Court of Appeals decision properly affirmed the opinion and award of the Industrial Commission. Accordingly, I vote to affirm the Court of Appeals.