Dolbow v. Holland Industrial, Inc.

• Decision Date: 01 November 1983
• Docket Number: No. 8210IC1149,8210IC1149
• Court: North Carolina Court of Appeals
• Parties: Kenneth DOLBOW, Employee, v. HOLLAND INDUSTRIAL, INC., Employer, and Commercial Union Insurance Company, Carrier.

Page 335

308 S.E.2d 335

64 N.C.App. 695

Kenneth DOLBOW, Employee, v. HOLLAND INDUSTRIAL, INC., Employer and Commercial Union Insurance Company, Carrier.

No. 8210IC1149.

Court of Appeals of North Carolina.

Nov. 1, 1983.

Smith, Moore, Smith, Schell & Hunter by Robert A. Wicker and Maureen J. Demarest, Greensboro, for defendants-appellants.

No brief filed for plaintiff-appellee.

BECTON, Judge.

I

Plaintiff injured his knee in a work-related accident on 9 July 1980. He was awarded compensation (a) for temporary total disability from 21 August 1980 until 11 December 1980; and (b) for a ten percent permanent partial disability of his left leg for twenty weeks.

The employer and the insurance carrier (defendants) assign error to the deputy commissioner's finding of fact that plaintiff was unable to work as a result of his injury from 21 August 1980 until 11 December 1980, contending that the finding is unsupported by the evidence.

"In passing upon an appeal from an award of the Industrial Commission, the reviewing court is limited in its inquiry to two questions of law, namely: (1) whether there was any competent evidence before the Commission to support its findings of fact; and (2) whether ... the findings of fact of the Commission justify its legal conclusions and decisions." Byers v. N.C. State Highway Comm., 275 N.C. 229, 233, 166 S.E.2d 649, 651-52 (1969). We are hampered in our review of defendants' first contention, however, because defendants have included no transcript or narration of the evidence upon which this Court can fully review this assignment of error. The burden is on an appealing party to show, by presenting a full and complete record, that the record is lacking in evidence to support the Commission's findings of fact. Rule 9(b)(1) of the North Carolina Rules of Appellate Procedure requires the inclusion in the record of all of the evidence necessary for an understanding of all errors assigned. For failure to comply with the rules, an appeal is subject to dismissal. See Britt v. Allen, 291 N.C. 630, 231 S.E.2d 607 (1977).

We have, nevertheless, chosen to exercise our discretion and review the merits of this appeal since defendants have attempted to show, by the following three stipulations, that the Commission's findings and conclusions were not supported by the evidence: (1) plaintiff received unemployment compensation benefits from the North Carolina Employment Security Commission from 13 October 1980 until 14 February 1981; (2) plaintiff's surgeon certified plaintiff as able to return to work at a light job on 9 October 1980; and (3) it was plaintiff's surgeon's medical opinion that plaintiff reached maximum medical improvement on 11 December 1980.

These stipulations are not persuasive. As stated by the Commission in its Opinion and Award:

Evidence concerning the plaintiff's receipt of unemployment compensation was before former Deputy Commissioner Delbridge at the initial hearing in Wilkesboro on July 13, 1981. He found as a fact that the plaintiff was certified by his physician as able to return to light work on October 9, 1980. However, the former Deputy Commissioner also found as a fact that the plaintiff, based upon medical evidence, did not reach maximum medical improvement until December 11, 1980 and that the plaintiff was unable to work as a result of his injury from August 21, 1980 until December 11, 1980.

"The Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony." Anderson v. Lincoln Construction Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965). Thus, the Commission may assign more weight and credibility to certain testimony than other. Moreover, if the evidence before the Commission is capable of supporting two contrary findings, the determination of the Commission is conclusive on appeal. Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865 (1963).

The deputy commissioner made the following unexcepted findings of fact, which the Commission adopted and made its own. On 9 July 1980, plaintiff, a mechanic, was unloading rods from a truck at the job site when he stepped into a depression, injuring his knee. The next day plaintiff went to a physician about the pain in his knee. An x-ray of the swollen knee revealed no fracture. Plaintiff was examined again by the same physician on 21 August 1980. Plaintiff still had marked swelling and tenderness of his knee and he lacked 10 percent extension of the knee. This physician felt that plaintiff had torn cartilage in the knee, and referred plaintiff to an orthopedic surgeon for an arthrotomy. Plaintiff was examined by the surgeon on 21 August 1980 and was diagnosed as having a tear in the medial meniscus of the left knee. On 3 September 1980, the surgeon performed an arthroscopy on plaintiff's knee, followed by an arthrotomy and excision of the torn medial meniscus. Plaintiff was discharged from the hospital on 6 September 1980 and was fully ambulatory on crutches. Plaintiff was seen as an outpatient by the surgeon periodically until 11 December 1980. On 9 October 1980, the surgeon certified plaintiff as able to return to work at a light job. It...