Pollard v. Krispy Waffle No. 1, 8210IC881

• Decision Date: 19 July 1983
• Docket Number: No. 8210IC881,8210IC881
• Citation: 63 N.C.App. 354,304 S.E.2d 762
• Parties: Beatrice L. POLLARD, Employee Plaintiff, v. KRISPY WAFFLE # 1, Employer, New Hampshire Ins. Co., Carrier, Defendants.
• Court: North Carolina Court of Appeals

Page 762

304 S.E.2d 762

63 N.C.App. 354

Beatrice L. POLLARD, Employee Plaintiff, v. KRISPY WAFFLE # 1, Employer, New Hampshire Ins. Co., Carrier, Defendants.

No. 8210IC881.

Court of Appeals of North Carolina.

July 19, 1983.

Staton, Perkinson, West & Doster by William W. Staton and Stanley W. West, Sanford, for plaintiff-appellee.

Teague, Campbell, Conely & Dennis by Richard B. Conely and Dayle A. Flammia, Raleigh, for defendants-appellants.

BRASWELL, Judge.

The issue to be resolved by this appeal is whether the Full Commission may reject the Deputy Commissioner's determinations of credibility of witnesses.

At the hearing plaintiff testified that she was injured when she bent over to pick up a box of french fries, lost her footing and fell down with the box. This account, however, was inconsistent with the history she gave to her physician and with a statement taken by an insurance adjuster and signed by plaintiff concerning the back injury. In both instances plaintiff stated that her injury occurred when she reached down to pick up the box and felt something pull in her back. This discrepancy is, of course, critical in that an injury which arises out of lifting objects in the ordinary course of an employee's business is not caused by accident so as to be compensable when the lifting is performed in the ordinary manner with no unusual circumstances existing. Rhinehart v. Market, 271 N.C. 586, 157 S.E.2d 1 (1967).

After hearing the evidence, Deputy Commissioner Rich found that "the testimony of plaintiff regarding a slip and fall prior to the onset of back pain is not accepted as credible," and denied plaintiff's claim for compensation. The Full Commission's majority opinion rejected the Deputy Commissioner's determination of plaintiff's credibility and allowed compensation.

Defendant contends that the Commission failed to consider all the competent evidence of record, that the evidence does not support the findings and the findings do not support the conclusions of law in that plaintiff failed to prove by the greater weight of the evidence that she suffered injury by accident arising out of and in the course of her employment.

The scope of our review of the Opinion and Award of the Full Commission is to determine whether there is evidence in the record to support the Commission's findings. The findings are conclusive on appeal when supported by competent evidence, even though there is evidence that would have supported a finding to the contrary. G.S. 97-86; Porterfield v. RPC Corp., 47 N.C.App. 140, 266 S.E.2d 760 (1980). The Commission's legal conclusions are subject to appellate review. Jackson v. Highway Commission, 272 N.C. 697, 158 S.E.2d 865 (1968).

The Full Commission made factual determinations of the credibility of witnesses without the benefit of live testimony. On review of the cold record of the evidentiary hearing before the Deputy Commissioner (who was the only official to see, hear, and observe the witnesses in person), the Full Commission in a 2-1 decision set aside the Deputy Commissioner's opinion, which rejected the plaintiff's claim for lack of credibility of her evidence, and made an award in favor of the plaintiff.

The majority opinion acknowledged the general rule that "the Commissioner or Deputy Commissioner who actually hears witnesses in a case is in the best position to decide questions pertaining to the credibility or truthfulness of witnesses." However, the majority wrote that failure to recognize exceptions to the rule would "shut off a statutory avenue of appeal for plaintiffs and defendants in cases decided purely on the basis of credibility at the hearing level." The majority opinion concluded that "the decision in the case at hand borders on--if it does not in fact amount to--an unintentional abuse of discretion by the Hearing Officer which should be adjudged an exception to the credibility rule."

The majority stated that the Deputy Commissioner had decided the case based solely upon a statement taken from plaintiff by an agent of the insurance carrier who had a direct interest in the outcome and who could have elicited certain answers by the way he asked questions. The Commission believed that the inconsistent statement was insufficient grounds to discredit plaintiff's version of the accident, since her testimony was supported by that of her supervisor.

In Chairman Stephenson's dissent he argued that the majority decision establishes a bad "precedent which could destroy the discretion our deputy commissioners have historically enjoyed to decide cases based on their distinct expertise in analyzing the evidence." Prior to 1951 the deputy had the duty to transmit all testimony to the Commission for its determination. In 1951 G.S. 97-84 was amended to require that the "deputy shall proceed to a complete determination of the matters in dispute, file his written opinion, and cause to be issued an award pursuant to such determination." Chairman Stephenson stated that in the 53-year history of the Commission this is the first time that "the original hearing officer has been reversed solely on the questions of credibility."

We find the reasoning expressed in Chairman...