SCHENCK, J., took no part in the consideration or decision of this case.

BARNHILL, J., concurring.

SEAWELL, J., dissenting.

This is a proceeding for compensation, under the provisions of the North Carolina Workmen's Compensation Act, for an injury by accident arising out of and in the course of the employment of the plaintiff by the defendant, Palmer-Bee Company, on 15 June, 1944. The defendant Royal Indemnity Company was the insurance carrier of its codefendant at the time of the accident.

The plaintiff, Mack Whitted, hereinafter called "claimant," was employed as a machine setter. On the above date, while setting up a machine on the premises of his employer, a piece of slag or metal flew up and struck him in the right eye. The accident was reported to the employer on the day it occurred. The employer reported the accident to the Industrial Commission on the same day. Thereafter, small medical bills were incurred as a result of the injury, which bills were approved for payment by the North Carolina Industrial Commission and paid on 5 July, 1944, by the defendant carrier.

No claim for compensation was filed within twelve months by the claimant with the Industrial Commission for loss of wages because he lost no time from his employment on account of the accident.

On 24 June, 1946, the claimant, through his attorneys, notified the Industrial Commission that he had recently developed a cataract on his right eye and had completely lost his sight in that eye, and requested a hearing.

The opinion of the Commissioner who heard this matter and whose opinion was adopted by the Full Commission and affirmed by the Superior Court, contains the following statements and findings of fact:

"When this case was heard before the undersigned in Winston-Salem on February the 18th, 1947, it was admitted, and the Commissioner finds it as a fact from the evidence that the claimant is totally blind in his right eye. The Commissioner finds it as a fact from the evidence that this blindness is due to the injury which he sustained while working for the defendant on June the 15th, 1944. The Commissioner further finds that said blindness is due to the injury, and that the injury to the cornea of the eye precipitated a slow developing pathological condition that did not produce the blindness in the claimant's eye until approximately eighteen months after the date of the injury; and, therefore, during this time the claimant had no claim against the defendants because he had lost no time on account of the injury, and for a period of eighteen months while this condition was developing, until it reached the maximum condition, to wit, blindness, he was not entitled to any compensation, and, therefore, did not file any claim. According to the evidence of Dr. Speas, the eye, ear, nose and throat specialist who treated this claimant originally and had examined him on numerous occasions since, testified that the abrasion to the cornea set in motion a condition that spread and formed a cataract that now makes the claimant blind, but that it took approximately eighteen months for this spread from the site of the abrasion to develop the cataract that now causes total blindness. "

Whereupon it was held that since no claim was filed with the North Carolina Industrial Commission within twelve months from the date of the accident, the claim is barred by the statute of limitations.

The plaintiff appealed to the Superior Court. At the hearing on this appeal, the award of the Commission was affirmed, and the claimant appealed to the Supreme Court.

DENNY, J.

It is contended by the appellees that the findings of fact by the Industrial Commission are conclusive on this appeal. Ordinarily this is true where the facts found are supported by any competent evidence, Creighton v. Snipes, 227 N.C. 90, 40 S.E.2d 612; Rewis v. Ins. Co., 226 N.C. 325, 38 S.E.2d 97; Hegler v. Mills Co., 224 N.C. 669, 31 S.E.2d 918; Kearns v. Furniture Co., 222 N.C. 438, 23 S.E.2d 310; but where the facts are found by the Commission under a misapprehension of the law, the court is not bound by such findings. McGill v. Lumberton, 215 N.C. 752, 3 S.E.2d 324; Stanley v. Hyman-Michaels Co., 222 N.C. 257, 22 S.E.2d 570.

The facts are not in dispute. The claimant sustained an injury by accident arising out of and in the course of his employment, on 15 June, 1944, resulting in the total loss of sight in his right eye. The accident was duly reported as required by G.S., 97-92. The serious nature of the injury was not discovered nor was it discoverable, in so far as the claimant was concerned, until more than twelve months after the date of the accident which caused it.

Therefore, upon these undisputed facts, did the court below reach the correct conclusion of law? In arriving at the answer to this question, we must determine whether or not the report of the accident given by the employer to the Commission, and the subsequent exercise of jurisdiction by the Commission in receiving and approving for payment bills for medical services rendered to the claimant as a result of the injury sustained in the accident, meet the requisites of G.S., 97-24, the pertinent part of which reads as follows: "The right to compensation under this article shall be forever barred unless a claim be filed with the industrial commission within one year after the accident, and if death results from the accident, unless a claim be filed with the commission within one year thereafter."

The appellees are relying upon Lineberry v. Town of Mebane, 218 N.C. 737, 12 S.E.2d 252; Winslow v. Carolina Conference Asso., 211 N.C. 571, 191 S.E. 403; Lilly v. Belk Bros., 210 N.C. 735, 188 S.E. 319; Wilson v. Clement, 207 N.C. 541, 177 S.E. 797; Wray v. Woolen Mills, 205 N.C. 782, 172 S.E. 487, and similar cases. On the other hand, they insist that Hanks v. Utilities Co., 210 N.C. 312, 186 S.E. 252, and Hardison v. Hampton, 203 N.C. 187, 165 S.E. 355, cases upon which the appellant is relying, are not in point.

We think an examination of these and other cases will be helpful in arriving at a proper decision on this appeal. It is clearly evident from a careful examination of the record herein that all parties have acted in good faith. The ultimate result, therefore, must rest upon the respective legal rights of the parties, based upon the undisputed facts disclosed by the record.

In the case of Lineberry v. Town of Mebane, supra, the claimant, on 24 July, 1939, filed with the Industrial Commission a report of an injury alleged to have been sustained by him on 31 May, 1938, while working for the defendant. It was held, "The provisions of Sec. 24, Ch. 120, Public Laws 1929 (G.S., 97-24), constitute a condition precedent to the right to compensation, and is not a statute of limitations. . . . If an employee fails to file notice of his claim within twelve months after the date he sustains an injury by accident arising out of and in the course of his employment, he has no right to compensation under the express terms of the statute."

Likewise, in Winslow v. Carolina Conference Asso., supra, the first report of the accident which occurred on 4 June, 1934, was filed with the Industrial Commission on 28 June, 1935. Also in Lilly v. Belk Bros., supra, the claimant was injured in January, 1934, and the notice of the injury was not given to the Industrial Commission until July, 1935.

In Wilson v. Clement Co., supra, the plaintiff suffered an accident in the course of his employment on 15 August, 1929. He employed counsel and filed a claim with the Industrial Commission on 8 September, 1930. The hearing Commissioner found "that no written report of the accident by the employee, employer or insurance carrier was filed with the Industrial Commission within one year from the date of the accident," and denied a recovery. There was an appeal to the full commission, and it found that no claim for compensation had been filed by anyone on behalf of the claimant within one year after the accident, but reversed the hearing Commissioner on other grounds. The decision of the hearing Commissioner was upheld by this Court.

In the case of Wray v. Woolen Mills, supra, an employee had been injured on 28 November, 1930, and the Industrial Commission had not been notified of the injury until 12 April, 1932. A claim by the injured employee for compensation was denied for failure to file his claim within twelve months from the date of the injury. However, the claimant having died as a result of his injury, on 24 August, 1932, his dependents were permitted to file a claim and an award based thereon was affirmed.

In Hardison v. Hampton, supra, the employee was injured on 27 March, 1930. He gave notice in writing to his employer of the accident and resulting injury on 28 March, 1930. He stated that he did not consider his injury serious, but was advised that it might terminate in a permanent rupture. On 25 August, 1930, the employer notified the insurance carrier, and thereupon at the request of the carrier reported the accident and claim for compensation to the Industrial Commission on Form 19, as prescribed by the Commission. Negotiations were entered into between the employee and the carrier. No agreement was reached. The carrier upon inquiry from the Commission suggested that in view of the attitude of the employee it saw nothing to do but have a hearing. No hearing was set, however, until it was requested by the employee more than twelve months after the accident. This Court said: "The injured employee is required by section 22 of the act to give notice to his employer of the accident which resulted in his injury. Thereafter, the employer is required to report the accident and claim of the employee for compensation to the Commission on Form 19, as prescribed by the Commission. No settlement of the claim can be made by the employer and the employee without the approval of the Commission. Section 18. If they fail to reach an agreement in regard to the compensation to which the injured employee is entitled, then either party may make application to the Commission for a hearing in regard to the matters at issue, and for a ruling thereon. Section 57. When the employer has filed with the Commission a report of the accident and claim of the injured employee, the Commission has jurisdiction of the matter, and the claim is filed with the Commission within the meaning of section 24."

In Hanks v. Utilities Co., supra, it was admitted that the deceased, Curtis Hanks, was at the time of his injury and death, on 6 December, 1929, in the employ of defendant and that the provisions of the Workmen's Compensation Act applied. Under date of 9 December, 1929, defendant employer, a self-insurer, reported the accident to the Industrial Commission on Form 19. The defendant admitted liability and on 26 December, 1929, reported to the Commission that it had offered to settle the claim with the administrator of the deceased. The administrator of the deceased declined to prosecute the claim pending before the Industrial Commission, but instead instituted an action in the Superior Court of Wilkes County, under the Federal Employers' Liability Act, which ended adversely to him. Thereafter, on 23 March, 1935, a formal petition for an award and a request for a hearing was filed with the Industrial Commission. An award was made and was upheld by this Court. The Court said: "The procedure upon the consideration and determination of a matter within the jurisdiction of the Industrial Commission, agreeable to the provisions of the act and the rules and regulations promulgated by the Commission, conforms as near as may be to the procedure in courts generally. By analogy, cases should be disposed of by some award, order, or judgment final in its effect, terminating the litigation. Employers' Ins. Ass'n v. Shilling, 259 S.W. 236; Todd v. Casualty Co., 18 S.W.2d 695. A final judgment is the conclusion of the law upon the established facts, pronounced by the court. Lawrence v. Beck, 185 N.C. 196; Swain v. Bonner, 189 N.C. 185.

"The record before us fails to show any final order or adjudication of any kind prior to the one appealed from.

"A claim for compensation lawfully constituted and pending before the Commission may not be dismissed without a hearing and without some proper form of final adjudication.

"No statute of limitations runs against a litigant while his case is pending in court."

In each case cited herein upon which the appellees are relying, the Industrial Commission did not receive a report of the accident, a claim for compensation or otherwise obtain jurisdiction of the proceeding, within twelve months of the date of the accident. But in those cases upon which the appellant is relying, the Commission did obtain jurisdiction within the required statutory time. In Hardison v. Hampton, supra, notice of the accident and claim for compensation were given to the Commission, negotiations for settlement of the claim between the carrier and the employee were entered into and a request was made by the carrier to the Commission for a hearing, all within twelve months of the date of the accident. While in Hanks v. Utilities Co., supra, the Utilities Company being a self-insurer, under the Workmen's Compensation Act, promptly reported the accident to the Commission and admitted liability. Therefore, in each of the last cited cases, a claim was pending before the Commission, within twelve months from the date of the accident.

In the instant case, notice of the accident was given to the Commission on the same date it occurred, but no claim for compensation was filed with the Commission by the employer, the carrier or the employee within twelve months of the date of the accident. Hence, none of the cases relied upon by the appellant or the appellees are on all fours with this case.

In many jurisdictions the payment of medical expenses is held to be tantamount to the payment of compensation. However, under the definition of the word "compensation" contained in G.S., 97-2, sub-section (k), payment of medical or hospital expenses constitutes no part of compensation under the provisions of our Workmen's Compensation Act. Morris v. Chevrolet Co., 217 N.C. 428, 8 S.E.2d 484. Compensation is defined in our statute as the money allowance payable to an employee or his dependents, including funeral benefits.

G.S., 97-47, does authorize the Commission upon its own motion or upon application of any party in interest on the grounds of a change in condition, to review any award, but no such review shall be made after twelve months from the date of the last payment of compensation pursuant to an award under the provisions of our Compensation Act. And this statute was amended by 1947 Session Laws of N.C. Chapter 823, Section 1, Sub-section (6), to include a review on the grounds of change in condition "in which only medical or other treatment bills are paid," but "no such review shall be made after twelve months from the date of the last payment of bills for medical or other treatment, paid pursuant to this Act."

The record herein discloses that no award for compensation has been made at any time in favor of claimant, pursuant to the provisions of our Compensation Act; and that more than two years elapsed after the accident before he requested a hearing. Moreover, prior to the request for a hearing on 24 June, 1946, no claim for compensation was pending before the Commission upon which an award could have been made on behalf of the claimant herein; and the record does not disclose the payment of any medical bills since 5 July, 1944.

It may be regretted that we have no provision in our Workmen's Compensation Act to preserve and protect the rights of employees in cases like the one before us. We do have such provision with respect to certain occupational diseases. 1945 Session Laws, Chapter 762, G.S., 97-58. But in the light of the facts disclosed on the record before us, and the provisions contained in our Workmen's Compensation Act, we think the judgment of the court below must be upheld.

Affirmed.

SCHENCK, J., took no part in the consideration or decision of this case.