All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
RANDY R. LEWIS
Employee v. BEACHVIEW EXXON SERVICE, Employer,
PENN NATIONAL INSURANCE COMPANY, Carrier
Workers' Compensation_pulmonary condition not compensable_remand
on estoppel issue
The decision of the Court of Appeals in this workers'
compensation case is reversed for the reason stated in the
dissenting opinion that plaintiff's pulmonary condition was not
compensable because evidence supported the Industrial
Commission's findings that it was not the result of his surgery
for a work-related hernia and that the hernia surgery did not
materially aggravate or exacerbate his pre-existing pulmonary
condition, and the case is remanded to the Court of Appeals for
remand to the Industrial Commission for findings and conclusions
on the issue of whether defendant employer is estopped from
contesting the compensability of plaintiff's pulmonary condition.
Appeal pursuant to N.C.G.S. § 7A-30(2) from the
decision of a divided panel of the Court of Appeals, ___ N.C.
App. ___, 619 S.E.2d 881 (2005), reversing and remanding an
opinion and award filed on 30 January 2004 by the North Carolina
Industrial Commission. On 26 January 2006, the Supreme Court
allowed defendants' petition for discretionary review as to
additional issues. Heard in the Supreme Court 20 April 2006.
Wilson & Ratledge, PLLC, by Perry J. Pelaez, for plaintiff-appellee.
Cranfill, Sumner & Hartzog, L.L.P, by Buxton S. Copeland and Meredith T. Black, for defendant- appellants.
As to the issue on direct appeal, we reverse the
decision of the Court of Appeals for the reasons stated in the
dissenting opinion. Further, we conclude that the petition for
discretionary review as to additional issues was improvidently
allowed. This case is remanded to the Court of Appeals for remandto the North Carolina Industrial Commission for further findings
of fact and conclusions of law on the issue of estoppel.
REVERSED AND REMANDED IN PART; DISCRETIONARY REVIEW IMPROVIDENTLY ALLOWED.
Justice WAINWRIGHT did not participate in the consideration or decision of this case.
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