Volume 126 — North Carolina Court of Appeals Reports

<bold>Workers' Compensation § 378 (NCI4th) — compensable</bold> <bold>injury — additional medical compensation — burden of proving</bold> <bold>causation</bold> Where the Industrial Commission had found that plaintiff employee suffered a compensable injury and awarded her medical expenses and future medical treatment, the Commission erred by placing on plaintiff the burden of proving that plaintiff's current medical problems (headaches) and her compensable injury are causally related for purposes of awarding additional medical compensation. Rather, the employer has the burden of proving that the original finding of compensable injury is unrelated to plaintiff's present headaches. <bold>Am Jur 2d, Workers' Compensation §§ 560-580</bold>.

<bold>1. Appeal and Error § 203 (NCI4th) — notice of appeal — filing</bold> <bold>after order rendered but not entered</bold> Plaintiff's notice of appeal of a wrongful discharge action was timely where it was filed after an order denying her motion for judgment n.o.v. was rendered in open court but before the written order was entered. Therefore, the Court of Appeals had jurisdiction to hear the appeal where the order entered by the trial court was in substantial compliance with the order rendered in open court<page_number>Page 801</page_number> <bold>Am Jur 2d, Appellate Review §§ 285 et seq</bold>. <block_quote> <bold>Right to perfect appeal, against party who has not</bold> <bold>appealed, by cross appeal filed after time for direct appeal</bold> <bold>had passed. 32 ALR3d 1290</bold>.</block_quote> <bold>2. Appeal and Error § 418 (NCI4th) — assignment of error — not set</bold> <bold>forth in brief — deemed abandoned</bold> Assignments of error which were not set out in plaintiff appellant's brief are deemed abandoned. N.C R. App. P. 28 (b)(5) <bold>Am Jur 2d, Appellate Review §§ 544-551</bold>. <bold>3. Labor and Employment § 71 (NCI4th) — wrongful discharge — filing</bold> <bold>workers' compensation claim — burden of proof — pattern jury</bold> <bold>instructions</bold> The pattern jury instructions on the burden of proof for wrongful discharge set forth in <italic>Johnson v. Friends of Weymouth</italic>, <cross_reference>342 N.C. 895</cross_reference>, <cross_reference>467 S.E.2d 903</cross_reference>, are not limited to cases wherein an employee was discharged for refusing to perform an unlawful act but were properly applied in an action in which plaintiff claimed she was discharged for having made or prepared to make a workers' compensation claim. <bold>Am Jur 2d, Employment Relationship §§ 52 et seq</bold>.

<bold>1. Principal and Agent § 25 (NCI4th) — power of attorney — change</bold> <bold>of trust beneficiary — gift not authorized</bold> The trial court did not err by granting summary judgment for defendants where defendant Newsome and plaintiff Honeycutt were brother and sister; their mother executed a power of attorney naming Honeycutt as attorney-in-fact; their mother later established a trust with defendant bank with Newsome as the beneficiary; Honeycutt went to the bank, presented the power of attorney and executed a new account card naming herself as beneficiary; Newsome went to the bank after their mother died and requested that the trust account be closed and the balance paid to him; the bank complied; Honeycutt subsequently went to the bank to close the account and was ultimately informed that the money had been paid to Newsome; the bank attempted to recover the money from Newsome but he refused; Honeycutt filed this action against the bank; and the bank filed a third party complaint against Newsome. Under N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 14 (a), Newsome could assert any defense of the bank to Honeycutt's claim and the pleadings and the evidence establish that Honeycutt purported to act under a power of attorney which granted broad authority but did not authorize Honeycutt to make a gift to anyone, much less herself. Although <italic>Whitford v. Gaskill</italic>, <cross_reference>345 N.C. 475</cross_reference>, involved a deed of gift of real property rather personal property, the rationale used by the <italic>Whitford</italic> court would apply to all purported gifts of a principal's property, whether real or personal, and would prohibit such gifts unless the power of attorney permits the attorney-in-fact to make a gift. <bold>Am Jur 2d, Agency §§ 30-35</bold>. <bold>2. Evidence and Witnesses § 924 (NCI4th) — power of attorney —</bold> <bold>statements purportedly expanding powers — properly excluded</bold> Evidence of statements by a deceased purporting to extend an attorney-in-fact's authority were properly excluded by the trial court where the attorney-in-fact had no express authority in the power of attorney to make a gift of the deceased's property. <bold>Am Jur 2d, Evidence § 786</bold>.<page_number>Page 817</page_number>