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Perez v. American Airlines/AMR Corp.10/18/2005
g that plaintiff was entitled toadditional medical compensation under N.C. Gen. Stat. § 97-25. We affirm on all three issues.
Applicability of Section 97-47
Defendant asserts that plaintiff's claim for additional indemnity compensation was barred under the time limitations stated in N.C. Gen. Stat. § 97-47. Section 97-47 provides, in pertinent part, that
upon the application of any party in interest on the grounds of a change in condition, the Industrial Commission may review any award, and on such review may make an award ending, diminishing, or increasing the compensation previously awarded . . . . o such review shall be made after two years from the date of the last payment of compensation pursuant to an award under this Article[.]
N.C. Gen. Stat. § 97-47 (2003). It is undisputed that plaintiff filed her claim for additional indemnity compensation more than two years after the final payment of indemnity compensation. Nonetheless, plaintiff's claim was not time-barred if the statute has no applicability to the facts here. N.C. Gen. Stat. § 97-47 applies only where there has been a final award of workers' compensation benefits. See Beard v. Blumenthal Jewish Home, 87 N.C. App. 58, 60, 359 S.E.2d 261, 262 (1987) (citing Pratt v. Central Upholstery Co., Inc., 252 N.C. 716, 115 S.E.2d 27 (1960)), disc. review denied, 321 N.C. 471, 364 S.E.2d 918 (1988). We agree with defendant that an employer's payment of compensation pursuant to a Form 60 filed with the Commission is an enforceable award on the compensability of the employee's injury. See N.C. Gen. Stat. § 97-82(b) (2003) (payments pursuant to N.C. Gen. Stat. § 97-18(b),Form 60 payments, "shall constitute an award of the Commission on the question of compensability of and the insurer's liability for the injury for which payment was made."). However, we reject defendant's argument that an employer's Form 60 payments constitute a final award within the meaning of N.C. Gen. Stat. § 97-47.
The applicability of N.C. Gen. Stat. § 97-47 to an award which determines some aspects of the employee's claim but does not resolve permanent disability was addressed in Beard v. Blumenthal Jewish Home, 87 N.C. App. 58, 359 S.E.2d 261 (1987). In Beard, the plaintiff-employee injured her back during a work-related accident. The Commission approved a Form 21 agreement executed by the parties, wherein the employer admitted liability under the Workers' Compensation Act and agreed to pay the plaintiff compensation at a specified rate. Beard, 87 N.C. App. at 58-59, 359 S.E.2d at 261. The plaintiff returned to work and received the insurance carrier's final compensation payment in 1980. Id. at 59, 359 S.E.2d at 261. Following a surgery for a ruptured disc in 1983 and a recovery period, the plaintiff filed a claim for additional compensation in 1985. Id. The Commission concluded that the plaintiff's claim was time-barred under N.C. Gen. Stat. § 97-47 because the Form 21 agreement constituted a final award and the plaintiff failed to file the claim for additional compensation within two years of the last payment of compensation. Id. at 59-60, 359 S.E.2d at 261-62. This Court reversed, concluding that the Form 21 agreement was an interlocutory award because it did not determine the extent of the plaintiff's permanent disability. Id. at 60, 359 S.E.2d at 262. In fact, the agreement "said nothing about plaintiff either having or not having a permanent disability." Id. The Court explained that N.C. Gen. Stat. § 97-47 was enacted to "establish conditions under which otherwise final disability awards can be reviewed and revised when changes occur; it does not establish either a procedure or a limitations period for processing unresolved c
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