Lucas v. Thomas Built Buses, Inc.

• Court: North Carolina Court of Appeals
• Writing for the Court: SMITH
• Citation: Lucas v. Thomas Built Buses, Inc., 364 S.E.2d 147, 88 N.C.App. 587 (N.C. App. 1988)
• Decision Date: 02 February 1988
• Docket Number: No. 8710IC714,8710IC714
• Parties: Robert R. LUCAS, Employee, Plaintiff, v. THOMAS BUILT BUSES, INC., Employer, and Nationwide Mutual Insurance Company, Carrier, Defendants.

Page 147

364 S.E.2d 147

88 N.C.App. 587

Robert R. LUCAS, Employee, Plaintiff, v. THOMAS BUILT BUSES, INC., Employer and Nationwide Mutual Insurance Company, Carrier, Defendants.

No. 8710IC714.

Court of Appeals of North Carolina.

Feb. 2, 1988.

Hunter, Hodgman, Greene, Donaldson, Cooke and Elam by Robert S. Hodgman, Greensboro, for plaintiff-appellant.

Smith, Helms, Mulliss and Moore, by J. Donald Cowan, Jr., Greensboro, for defendants-appellees.

SMITH, Judge.

Plaintiff assigns as error the Commission's finding of fact and conclusion of law that plaintiff was not disabled after 12 March 1985. Plaintiff contends that the Commission erred in concluding that there was no evidence to show a work related disability after 12 March 1985. We agree. Dr. Maultsby testified before the Deputy Commissioner as to his treatment and diagnosis of plaintiff's condition. It was Maultsby's testimony that 1) after April 1985 (when Maultsby first saw plaintiff), plaintiff was still unable to work; 2) on 3 October 1985, he released plaintiff for light work; 3) on 16 December 1985, he released plaintiff for unrestricted work; and 4) plaintiff presently had 5-7 1/2% residual disability in his back. The Deputy Commissioner found as a fact that Dr. Maultsby had diagnosed plaintiff as having a bulging disc, the same diagnosis originally made by Dr. Blaylock following plaintiff's accident.

It is the exclusive province of the Industrial Commission to weigh and evaluate the evidence before it and find the facts. Anderson v. Construction Co., 265 N.C. 431, 144 S.E.2d 272 (1965). Indeed, the Workers' Compensation Act provides that the Commission's findings of fact are conclusive. G.S. 97-86. On the other hand, a reviewing court's function is to determine whether the Commission's findings of fact are supported by competent evidence and whether the conclusions of law are correct. Byers v. Highway Comm., 275 N.C. 229, 166 S.E.2d 649 (1969); Henry v. Leather Co., 231 N.C. 477, 57 S.E.2d 760 (1950); Smith v. Paper Co., 226 N.C. 47, 36 S.E.2d 730 (1946). In the case at bar, the Commission's conclusion that there was no evidence that plaintiff was temporarily totally disabled after 12 March 1985 is not supported by the record.

Defendants contend that there was competent evidence to support the Commission's finding that plaintiff reached maximum medical improvement on 12 March 1985, and that therefore the Commission's findings are conclusive under G.S. 97-86. It is true that competent evidence was presented by Dr. Blaylock as to such improvements. However, defendants' contention is misplaced. The error is not in the Commission's finding but in its conclusion that there was no evidence that plaintiff was disabled after 12 March 1985. Conclusions of law are reviewable by this court to determine their evidentiary basis. Walston v. Burlington Industries, 49 N.C.App. 301, 271 S.E.2d 516 (1980), rev'd on other grounds, 304 N.C. 670, 285 S.E.2d 822 (1982). In light of Dr. Maultsby's testimony regarding plaintiff's further disability, this conclusion of "no evidence" is not supported by the record. The decision whether to believe Maultsby, Blaylock, or both is within the discretion of the Commission, but that decision must be supported by the evidence. McGill v. Lumberton, 218 N.C. 586, 11 S.E.2d 873 (1940); Porterfield v. RPC Corp., 47 N.C.App. 140, 266 S.E.2d 760 (1980).

Plaintiff also assigns as error the Commission's denial of treatment expense for the services rendered by Dr. Maultsby based on the fact that Maultsby was plaintiff's second physician of choice. In Conclusion of Law No. 2, the Commission states that plaintiff had a right to a second opinion if he had not already...