Pittman v. Thomas & Howard

• Decision Date: 02 April 1996
• Docket Number: No. 9410IC663,9410IC663
• Citation: 468 S.E.2d 283,122 N.C.App. 124
• Court: North Carolina Court of Appeals
• Parties: William PITTMAN, Plaintiff-Employee, v. THOMAS & HOWARD, Defendant-Employer, and Liberty Mutual Insurance Company, Defendant-Carrier.

Page 283

468 S.E.2d 283

122 N.C.App. 124

William PITTMAN, Plaintiff-Employee, v. THOMAS & HOWARD, Defendant-Employer, and Liberty Mutual Insurance Company, Defendant-Carrier.

No. 9410IC663.

Court of Appeals of North Carolina.

April 2, 1996.

Perry, Brown & Levin by Cedric R. Perry and Charles E. Craft, Rocky Mount, for plaintiff-appellant.

Cranfill, Sumner & Hartzog, L.L.P. by P. Collins Barwick, III, Raleigh, for defendant-appellees.

JOHN, Judge.

Plaintiff William Pittman appeals an Opinion and Award of the North Carolina Industrial Commission (the Commission) denying his claims for additional compensation and further medical treatment. He contends the Commission erred by: (1) concluding that one deputy commissioner possesses no authority to modify the previous order of another commissioner; and (2) failing to find that his current condition was attributable to a previous compensable injury. For the reasons set forth herein, we affirm the decision of the Commission.

Pertinent facts and procedural information are as follows: Plaintiff was employed by defendant Thomas & Howard, now operating under the name Nash-Finch, as a truck driver. While so employed on 25 August 1987, plaintiff sustained an injury to his back. Dr. Nelson T. Macedo, a neurosurgeon, indicated plaintiff suffered from congenital cervical spinal stenosis, a condition related to development of the spine, and that his difficulties following the injury resulted from "a combination of the accident plus the fact that he had that condition before."

On 1 March 1990, the parties entered into an Agreement of Settlement (the Agreement), which provided for a lump sum payment of $5,500.00 to plaintiff. The Agreement stated it was subject to approval of the Commission "by its award" and that it became binding on the parties upon such approval. The Agreement also provided:

[T]he parties herein agree that Employee shall retain his right to claim additional compensation benefits, subsequent to the date on which this agreement is approved by the North Carolina Industrial Commission, to the extent that he is allowed to do so pursuant to North Carolina [G]eneral Statute § 97-47, and, additionally, the parties herein agree that Employee shall retain his right to claim additional medical expenses, subsequent to the date on which this agreement is approved by the North Carolina Industrial Commission, to the extent that he is allowed to do so pursuant to North Carolina General Statute § 97-25.

On 26 March 1990, Commissioner J. Harold Davis (Davis) issued an order (the Davis order) approving the agreement. However, this order provided for payment of medical bills only through 1 March 1990 "and no further," and also stated:

Compliance with the agreement and the foregoing award shall fully acquit and discharge defendants from further liability under the Compensation Act by reason of the injury giving rise to this case.

None of the parties appealed the Davis order nor requested a hearing for purposes of resolving seeming inconsistencies between that order and the Agreement.

Plaintiff subsequently filed a "Request that Claim be Assigned for Hearing," alleging nonpayment of medical bills "on or about 19 March 1990." Defendants contended in response that plaintiff had not properly submitted the bills and agreed to payment of the bills upon submission to and approval by the Commission. Plaintiff thereupon withdrew his request for hearing.

In an 11 February 1991 order reciting plaintiff's withdrawal of the hearing request, Deputy Commissioner Lawrence B. Shuping, Jr. (Shuping), apparently sua sponte, also stated that Davis had "mistakenly treated" the Agreement as one releasing all rights of plaintiff to claim further compensation and/or medical benefits. Shuping thereupon ordered (the Shuping order) the last paragraph (quoted above) of the Davis order stricken so as to correct Davis' "clerical error." No appeal was taken from the Shuping order.

As a result of deterioration in his condition and a medical recommendation for surgery, plaintiff subsequently filed both a "Request that Claim be Assigned for Hearing," seeking payment for the recommended surgery and other medical expenses per N.C.G.S. § 97-25 (1991), as well as an "Application for Review of Award" pursuant to N.C.G.S. § 97-47 (1991). Following hearing on 10 June 1992, Deputy Commissioner John Charles Rush ruled "plaintiff did not experience a substantial change in condition in his back caused by the August 25, 1987 injury" and denied plaintiff's claims.

Plaintiff thereupon appealed to the Full Commission which on 22 March 1994 filed an Opinion and Award setting forth the following "Conclusions of Law":

1. A Deputy Commissioner is without authority to overrule or act in a contrary manner to any action taken by a Commissioner. See generally, Ivey v. Fasco Industries, 101 N.C.App. 371, 399 S.E.2d 153 (1991).

2. Deputy Commissioner Shuping's Order of 11 February 1991 was issued without the authority to amend the previous order of Commissioner Davis of 26 March 1990. Therefore, Commissioner Davis' Order of 26 March 1990 remains in full force and affect [sic]. Id.

3. As a result, plaintiff is not entitled to further compensation under the Act. Id.

The Commission also found as a fact that

[p]laintiff's worsening condition is due to severe lumbar spinal stenosis, which was not caused by the incident of 25 August 1987.

Plaintiff gave notice of appeal to this Court 11 April 1994.

We first consider plaintiff's assertion that the Commission "erred in its finding that the plaintiff's condition was not attributable to his injury of 25 August 1987." This contention is unfounded.

While Andrews v. Fulcher Tire Sales and Service, 120 N.C.App. 602, 605, 463 S.E.2d 425, 427 (1995) (this Court bound by Commission's findings if supported by "sufficient competent evidence"), may appear to state a new and different standard of review of Commission decisions at the appellate level, see Davis v. N.C. Dept. of Human Resources, 121 N.C.App. 105, 116, 465 S.E.2d 2, 9 (1995) (Judge Martin, Mark D., concurring) (emphasizing "need for the appellate division to articulate a consistent standard of review when considering the Commission's factual findings"), we believe the standard continues to be that adopted by our Supreme Court and repeatedly followed in appellate decisions thereafter. Over forty-five years ago, Justice Ervin wrote:

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 or not there was any competent evidence before the Commission to support its findings of fact; and (2) whether or not the findings of fact of the Commission justify its legal conclusions and decision.

Henry v. A.C. Lawrence Leather Co., 231 N.C. 477, 479, 57 S.E.2d 760, 762 (1950) (citation omitted)(emphasis added). See also Carroll v. Daniels and Daniels Construction Co., 327 N.C. 616, 620, 398 S.E.2d 325, 328 (1990)(Appellate court review is limited to "two questions of law: (1) whether any competent evidence exists before the Industrial Commission to support its findings of fact, and (2) whether the Commission's findings of fact justify its legal conclusions and decision."); Peoples v. Cone Mills Corp., 316 N.C. 426, 432-33, 342 S.E.2d 798, 803 (1986)(Commission's findings "will not be disturbed on appeal if supported by any competent evidence even if there is evidence in the record which would support a contrary finding."); Morrison v. Burlington Industries, 301 N.C. 226, 232, 271 S.E.2d 364, 367 (1980)(Court declines to abandon rule that exclusive authority to find facts rests with Commission, and that "such findings are conclusive on appeal when supported by any competent evidence."); Anderson v. Lincoln Construction Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)(Appellate court's "duty goes no further than to determine whether the record contains any evidence tending to support the finding."); Haponski v. Constructor's Inc., 87 N.C.App. 95, 97, 360 S.E.2d 109, 110 (1987)(This Court's review "limited to determining whether any competent evidence supported the Commission's findings and whether such findings are legally sufficient to support the Commission's conclusions of law."); Carrington v. Housing Authority, 54 N.C.App. 158, 159, 282 S.E.2d 541, 541-42 (1981)(Commission's findings "may be set aside on appeal only when there is a complete lack of competent evidence to support them.").

Our task in reviewing the Opinion and Award at issue herein, therefore, is to determine if there is any competent evidence in the record to support the Commission's findings of fact; in turn, those findings must support its conclusions of law. Moreover, the Commission, and not this Court, is "the sole judge of the credibility of witnesses" and the weight given to their testimony. Russell v. Lowes Product Distribution, 108 N.C.App. 762, 765, 425 S.E.2d 454, 457 (1993).

Bearing these principles in mind, we examine plaintiff's second assignment of error, i.e., that the Commission erred by failing to find that his current condition was attributable to the earlier injury for which he received compensation. Plaintiff advanced claims before the Commission for additional compensation under G.S. § 97-47 and for further medical treatment under G.S. § 97-25.

The former statute provides that, "on the grounds of a change in condition," the Commission may review any previously entered award and terminate, decrease, or increase compensation. Haponski v. Constructor's Inc., 87 N.C.App. at 104, 360 S.E.2d at 114. We assume arguendo that the original Agreement approved by the Commission constituted an award for purposes of G.S. § 97-47. See Weaver v. Swedish Imports Maintenance, Inc., 319 N.C. 243, 247, 354 S.E.2d 477, 480 (1987)(statute "inapplicable unless there has been a previous final award"); see also Wall v. N.C. Dept. of Human Resources, 99...