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Graham v. City of Hendersonville

Filed: July 31, 1979.

JAMES H. GRAHAM (EMPLOYEE)
v.
CITY OF HENDERSONVILLE, OAKDALE CEMETERY (EMPLOYER) AND BITUMINOUS CASUALTY CORPORATION (CARRIER)



Appeal by defendants from an Opinion and Award of the North Carolina Industrial Commission entered 12 June 1978. Heard in the Court of Appeals 27 June 1979.

Clark, Judge. Chief Judge Morris and Judge Erwin concur.

Clark

Defendants first contend that the Industrial Commission had no jurisdiction, authority, or power to hold a hearing and to set

aside an order of a Commissioner approving a compromise agreement.

G.S. 97-17 provides, in pertinent part that:

". . . Provided, however, that no party to any agreement for compensation approved by the Industrial Commission shall thereafter be heard to deny the truth of the matters therein set forth, unless it shall be made to appear to the satisfaction of the Commission that there has been error due to fraud, misrepresentation, undue influence or mutual mistake, in which event the Industrial Commission may set aside such an agreement." (Emphasis added).

This statutory provision clearly grants the Industrial Commission the authority to rehear and set aside prior orders approving settlements on any one of the stated grounds.

In Pruitt v. Knight Publishing Co., 289 N.C. 254, 221 S.E.2d 355 (1976), the Supreme Court set forth additional guidelines for setting aside prior orders of the Commission. In Pruitt, the Supreme Court stated that in order for the plaintiff to attack a settlement agreement which had been approved by the Commission, he must "make application . . . for a further hearing for that purpose. In such event, the Industrial Commission shall hear the evidence offered by the parties, find the facts with respect thereto, and upon such findings determine whether the agreement was erroneously executed due to fraud, misrepresentation, undue influence or mutual mistake. If such error is found, the Commission may set aside the agreement, G.S. 97-17, and determine whether a further award is justified and, if so, the amount thereof." 289 N.C. at 260, 221 S.E.2d at 359. It is abundantly clear that the Industrial Commission has the authority to set aside settlement agreements if the settlement was obtained by fraud, misrepresentation, undue influence, duress or mutual mistake. Defendants' first assignment of error is overruled.

Defendants also contend that there was insufficient evidence to support the Deputy Commissioner Denson's Finding of Fact No. 27. The Deputy Commissioner found that:

"Defendants through Tomblin represented to the plaintiff that there was a controversy on the causal connection of

his amputation and his work-related injury. That representation was false as clearly indicated by medical reports sent defendants by Dr. Lampley. Tomblin made that representation either knowing it to be false or making it recklessly without due inquiry into its validity. Tomblin intended that the plaintiff rely ...


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