Andrews v. Fulcher Tire Sales and Service

• Decision Date: 07 November 1995
• Docket Number: No. COA94-1416,COA94-1416
• Citation: 463 S.E.2d 425,120 N.C.App. 602
• Court: North Carolina Court of Appeals
• Parties: Henry ANDREWS, Employee, Plaintiff, v. FULCHER TIRE SALES AND SERVICE, Employer; and United States Fidelity and Guaranty Company, Carrier, Defendants.

Page 425

463 S.E.2d 425

120 N.C.App. 602

Henry ANDREWS, Employee, Plaintiff, v. FULCHER TIRE SALES AND SERVICE, Employer; and United States Fidelity and Guaranty Company, Carrier, Defendants.

No. COA94-1416.

Court of Appeals of North Carolina.

Nov. 7, 1995.

Kennedy W. Ward, P.A. by Kennedy W. Ward, New Bern, for plaintiff-appellee.

Ward and Smith, P.A. by S. McKinley Gray, III and William Joseph Austin, Jr., New Bern, for defendant-appellants.

GREENE, Judge.

Pursuant to N.C.Gen.Stat. § 97-86, Fulcher Tire Sales and Service and United States Fidelity and Guaranty Company (defendants) appeal from the Opinion and Award of the Industrial Commission (Commission), filed 3 August 1994, awarding Henry Andrews (plaintiff) $406 per week during the period of his disability, medical expenses and attorney fees.

Plaintiff was employed as a mechanic, by Fulcher Tire Sales and Service (Fulcher). Plaintiff alleges that he was injured at work on 13 September 1991 and, it is not disputed in this appeal that he reported this injury to Fulcher, pursuant to N.C.Gen.Stat. § 97-22. Because there was a dispute regarding compensation, United States Fidelity and Guaranty Company (Fidelity), Fulcher's insurance carrier, requested a hearing, pursuant to N.C.Gen.Stat. § 97-83. In its appeal from the deputy commissioner's award, defendants requested alternatively that the Commission consider new evidence. In support of their motion, defendants submitted an affidavit from Chris Baggett, a private investigator, which stated that on several occasions from 28 April 1993, through 3 June 1993, he observed plaintiff "walking without a limp and in no apparent distress" and driving automobiles and in one instance someone "who appeared to be" plaintiff underneath a car.

The Commission denied defendants' request to consider new evidence and filed its Opinion and Award. It concluded that "plaintiff [had] sustained an injury by accident arising out of and in the course of his employment" and that plaintiff is "entitled to compensation for temporary total disability" of $406 per week and payment of all his medical expenses arising out of the injury by accident. The Commission also approved "attorney's fee in the amount of twenty-five percent of the compensation awarded." This fee was to be deducted by the defendants "from the lump sum awarded to plaintiff." After the defendants filed notice of appeal, the Commission approved an additional award of attorney fees and costs pursuant to N.C.Gen.Stat. § 97-88 in a 9 November 1994 Order.

In support of its Opinion and Award, the Commission found as a fact that plaintiff sustained an injury by accident on 13 September 1991 and further found the following with regard to plaintiff's disability:

6. As a result of this injury by accident, plaintiff was unable to perform his work duties for defendant-employer from September 14, 1991 through at least the date of the hearing on August 26, 1992.

7. At the time of this injury, plaintiff operated a garage at his home....

8. ... Following his injury, plaintiff performed some work at his garage within limitations, but the nature and amount of the work cannot be determined. His testimony to the contrary was not accepted as credible by the deputy commissioner, and the Full Commission declines to overrule that assessment. In any event, plaintiff would not have been able to perform work at the same level as before the injury due to the impairment from the injury. Accordingly, it is presumed his earnings from his garage were reduced after his injury.

The evidence in this record, relevant to the above findings of fact, reveals a stipulation that the plaintiff "has a herniated disc at C4-5 and a bulging disc at 5-6." He was treated by Dr. Wilfong and Dr. Ballenger. Ballenger's notes, which are from the fall of 1991, indicate that plaintiff can sit down and stand up, but that plaintiff is in pain when he does so and that plaintiff was on complete bed rest for some time during the fall of 1991. Ballenger also prescribed many different pain medications for plaintiff during the fall of 1991. Wilfong's office notes indicate that plaintiff has a fairly significant disc bulging at 4-5 and is "beside himself in pain." In a 31 December 1991 letter to Ballenger, Wilfong states that plaintiff "is ... not able to function" and that Wilfong has scheduled plaintiff for back surgery. Prior to the injury the plaintiff, in addition to his work with his employer worked part time in a garage behind his house. The plaintiff testified that since the injury he was unable to work. There was also testimony by private investigator Todd Goodson that, in August 1992, plaintiff was observed moving "in a fluid [and] natural motion," leaning under the hoods of vehicles on two separate occasions, and "squatting" on another occasion.

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The issues are whether (I) the Commission's finding that "plaintiff sustained an injury by accident on 13 September 1991" is supported by the evidence; (II) the Commission's finding of fact that plaintiff has been unable to perform work "at the same level as before the injury" is supported by the evidence; (III) the Commission should have considered defendants' evidence regarding plaintiff's disability; and (IV) the Commission had jurisdiction to enter its 9 November award of attorney fees.

I

Defendant argues that the witnesses who testified that plaintiff sustained his injury while working at Fulcher on 13 September were "disgruntled ex-employees of" Fulcher who made a "suspicious cast of characters" and that their "testimony should be construed against [p]laintiff's credibility" rendering the finding without support. This argument questions entirely the credibility of the witnesses, however, and we are bound by the Commission's determination of their credibility and the weight to be afforded their testimony. Russell v. Lowes Prod. Distrib., 108 N.C.App. 762, 765, 425 S.E.2d 454, 457 (1993).

II

This Court is also bound by the findings entered by the Commission if they are supported by sufficient competent evidence. Walston v. Burlington Indus., 304 N.C. 670, 678, 285 S.E.2d 822, 827, reh'g granted, 305 N.C. 296, 285 S.E.2d 822 (1982) (making factual correction only); Russell, 108 N.C.App. at 765-66, 425 S.E.2d at 457. The evidence is sufficient if it is such that a reasonable mind might accept as adequate to support the finding. 3 Arthur Larson & Lex K. Larson, The Law of Workmen's Compensation § 80.10(c) (1995); Garrett v. Overman, 103 N.C.App. 259, 262, 404 S.E.2d 882, 884, disc. rev. denied, 329 N.C. 787, 408 S.E.2d 519 (1991) (defining "sufficient"); ...