Morgan v. Thomasville Furniture Industries, Inc., 68IC205

• Decision Date: 14 August 1968
• Docket Number: No. 68IC205,68IC205
• Citation: 2 N.C.App. 126,162 S.E.2d 619
• Court: North Carolina Court of Appeals
• Parties: Tom MORGAN (Employee) v. THOMASVILLE FURNITURE INDUSTRIES, INC. (Employer) American Mutual LiabilityInsurance Company (Carrier).

Page 619

162 S.E.2d 619

2 N.C.App. 126

Tom MORGAN (Employee) v. THOMASVILLE FURNITURE INDUSTRIES, INC. (Employer) American Mutual LiabilityInsurance Company (Carrier).

No. 68IC205.

Court of Appeals of North Carolina.

Aug. 14, 1968.

Hubert E. Olive, Jr., Lexington, for plaintiff appellee.

Smith, Moore, Smith, Schell & Hunter, by Richmond G. Bernhardt, Jr., Greensboro, for defendants appellants.

MALLARD, Chief Judge.

The Court of Appeals has appellate jurisdiction to review an award of the Industrial Commission for errors of law when a party to the proceeding in which the appeal is made appeals to it. G.S. § 97--86.

'The Commission or any of its members shall hear the parties at issue and their representatives and witnesses, and shall determine the dispute in a summary manner.' G.S. § 97--84. The Commission is the sole fact finding agency in cases in which it has jurisdiction. The finding of facts is one of the primary duties of the Commission. Brice v. Robertson House Moving Wrecking and Salvage Co., 249 N.C. 74, 105 S.E.2d 439.

The Commission is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. It may accept all of the testimony of a witness or reject all of the testimony of a witness. It may accept a part of the testimony of a witness and reject a part of the testimony of such witness. It is not required to accept the uncontradicted testimony of a witness. Anderson v. Northwestern Motor Co., 233 N.C. 372, 64 S.E.2d 265. The Commission is not required to make a finding as to each fact presented by the evidence. Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 85 S.E.2d 596. However, specific findings by the Commission with respect to the crucial facts, upon which the question of plaintiff's right to compensation depends, are required. Thomason v. Red Bird Cab Co., 235 N.C. 602, 70 S.E.2d 706; Pardue v. Blackburn Bros. Oil & Tire Co., 260 N.C. 413, 132 S.E.2d 747.

Plaintiff contends that the Commission erred in failing to find facts relating to whether he was totally disabled and incapacitated for work as a result of a compensable injury.

'Disability' as used in the Workmen's Compensation Act means impairment of wage earning capacity rather than physical impairment. Anderson v. Northwestern Motor Co., supra; Burton v. Peter W. Blum & Son, 270 N.C. 695, 155 S.E.2d 71.

The findings of fact in the opinion and award of Commissioner Shuford are as follows:

'The undersigned finds as facts and concludes as matters of law the following, which were entered by the parties at the first hearing as

STIPULATIONS

1. At the time of the injury by accident giving rise hereto the parties were subject to and bound by the provisions of the Workmen's Compensation Act.

2. The employer-employee relationship existed between plaintiff and defendant employer at such time.

3. American Mutual Liability Insurance Company was the compensation insurance carrier on the risk at such time.

4. Plaintiff's average weekly wage was $89.00.

5. On 28 May 1964 plaintiff sustained an injury by accident arising out of and in the course of his employment with defendant

employer. Thereafter defendants admitted liability and the parties entered into agreements for the payment of compensation, pursuant to which plaintiff has been paid compensation for temporary total disability from 29 May 1964 to 8 July 1964 and again from 5 August 1964 to 24 August 1965.

Based upon all the competent evidence, the undersigned makes the following additional

FINDINGS OF FACT

1. Plaintiff has not worked or attempted to work since he was last paid compensation in August 1965. Plaintiff feels that he is unable to do any physical work whatsoever. He is nervous and gets upset easily. He feels that he is unable to walk upright and thus walks in a stooped position.

2. Prior to his injury by accident plaintiff had been treated by Dr. Charles F. Gilliam of Thomasville for stomach ulcers and plaintiff suffered with nervousness prior to such accident.

3. Plaintiff is not (sic) treated by Dr. E. L. Jones of Thomasville for nervousness, headaches and back pain. Plaintiff draws $270.00 per month from the Federal Government as social security.

4. Dr. Richard H. Ames, neurosurgeon of Greensboro, operated upon plaintiff on 12 August 1964 and removed a disc at L--5. Dr. Ames has examined plaintiff from time to time thereafter, the last examination being on 19 October 1966. Dr. Ames is of the opinion that the combination of plaintiff's physical condition and emotional instability makes plaintiff 100% Disabled. The doctor is further of the opinion that plaintiff's physical and mental condition is an outgrowth of plaintiff's injury by accident giving rise hereto and that he is unable to separate the physical and mental disability.

5. Dr. David D. Anderson, orthopedic surgeon of Winston-Salem, first examined plaintiff on 13 August 1965. Dr. Anderson felt that plaintiff should be rehospitalized with the idea of carrying out a lumbosacral fusion. However, plaintiff and his wife felt that if no guarantee could be given that plaintiff's condition would be improved that it would be too much of a risk to undergo further surgery and no operation was thus performed. Dr. Anderson rated plaintiff as having 25 to 30% Permanent disability of the back and felt that if a lumbosacral fusion was done at the best he would still rate plaintiff as having approximately 20% Permanent disability of the spine. Dr. Anderson last examined plaintiff on 30 January 1967 at which time he found no change in plaintiff's condition and was of the opinion that the previously given rating of 25 to 30% Permanent partial disability of the back still prevailed.

6. As a result of the injury by accident giving rise hereto plaintiff has no temporary total or temporary partial disability other than that for which he has already been paid compensation.

7. As a result of the injury by accident giving rise hereto plaintiff has a 50% Permanent partial disability or loss of use of the back.'

In his appeal and application for review by the full Commission the plaintiff alleged error on the part of the hearing Commissioner for that:

'Portions of the Findings of Fact, Conclusions of Law, and Award are contrary to, and not supported by, the evidence, in that:

Plaintiff should have been found to be totally and permanently disabled rather than having a 50% Permanent partial disability or loss of the use of the back, and should be compensated under the provisions of GS 97--29.'

In the opinion and award by the full Commission no additional findings of fact are made with respect to the condition of the plaintiff. In the opinion and award of the full Commission there appears the following:

'As stated in order filed by the Full Commission on July 6, 1967 counsel for the parties appeared before the Full Commission and ably presented their contentions in the matter, and as noted in said order counsel for the plaintiff contends that plaintiff is...