Fowler v. B.E. & K. Const., Inc.

• Court: North Carolina Court of Appeals
• Writing for the Court: PHILLIPS
• Citation: Fowler v. B.E. & K. Const., Inc., 373 S.E.2d 878, 92 N.C.App. 237 (N.C. App. 1988)
• Decision Date: 06 December 1988
• Docket Number: No. 8810IC272,8810IC272
• Parties: James C. FOWLER, Employee, Plaintiff v. B.E. & K. CONSTRUCTION, INC., Employer and United States Fidelity & Guaranty Co., Carrier, Defendants.

Page 878

373 S.E.2d 878

92 N.C.App. 237

James C. FOWLER, Employee, Plaintiff v. B.E. & K. CONSTRUCTION, INC., Employer and United States Fidelity & Guaranty Co., Carrier, Defendants.

No. 8810IC272.

Court of Appeals of North Carolina.

Dec. 6, 1988.

Michael W. Willis, Whiteville, for plaintiff-appellant.

John F. Crossley & Associates by Douglas F. McIntosh, Wilmington, for defendants-appellees.

PHILLIPS, Judge.

Without considering whether Dr. Glinski's testimony as to the worker having a general bodily disability due to his musculoskeletal injuries was competent, we hold that the testimony is irrelevant to the appeal for the reason that in the proceedings below no issue as to Fowler having a general bodily disability was raised. The proceeding below was initiated, conducted and reviewed to determine only whether Fowler's bruised kidney was permanently injured and if so whether under the provisions of G.S. 97-31(24) any further compensation was due therefor. Since an appeal must follow the mold established in the trial court, Mills v. Dunk, 263 N.C. 742, 140 S.E.2d 358 (1965), and the Commission found that the worker's kidney was not permanently injured as a result of the accident, the only question before us is whether that finding is supported by competent evidence. Moses v. Bartholomew, 238 N.C. 714, 78 S.E.2d 923 (1953). Obviously, the finding is supported by Dr. Glinski's competent testimony to the effect that Fowler's renal difficulty had apparently cleared up and that the outlook for his kidney was excellent. Thus, the Opinion and Award is affirmed.

Appellant's argument that the finding is contrary to the greater weight of the evidence is irrelevant. For determining the weight and credibility of evidence in our jurisprudence is the province of the fact finder, which can accept or reject different parts of a witness' testimony as it sees fit, and the fact finder in this instance is the North Carolina Industrial Commission. G.S. 97-86; Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 265 S.E.2d 389 (1980).

Furthermore, even if the Commission had found that the worker's kidney was permanently injured compensation would not necessarily be due therefor under G.S. 97-31(24), as the appellant maintains. For G.S. 97-31(24) provides that--

[i]n case of the loss of or permanent injury to any important external or internal organ or part of the body for which no compensation is payable under any other subdivision of this section, the Industrial...