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

Court of Appeals of North Carolina

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

373 S.E.2d 878, 92 N.C. App. 237, 1988 N.C. App. LEXIS 1021, 1988 WL 129243

CourtCourt of Appeals of North Carolina

DecidedDecember 6, 1988

DocketNo. 8810IC272

StatusPublished

Cited by4 cases

This text of 373 S.E.2d 878 (Fowler v. B. E. & K. Construction, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fowler v. B. E. & K. Construction, Inc., 373 S.E.2d 878, 92 N.C. App. 237, 1988 N.C. App. LEXIS 1021, 1988 WL 129243 (N.C. Ct. App. 1988).

Pincite

Opinion

PHILLIPS, Judge.

Without considering whether Dr. Glinski’s testimony as to the worker having a general bodily disability due to his musculo-skeletal 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 Commission may award proper and equitable compensation not to exceed twenty thousand dollars ($20,000);

[240]*240and has been construed not to require compensation, but to give the Commission discretion to award compensation when the conditions stated exist. Little v. Penn Ventilator Co., 317 N.C. 206, 218, 345 S.E. 2d 204, 212 (1986).

Affirmed.

Judges Eagles and Parker concur.

Free access — add to your briefcase to read the full text and ask questions with AI

PHILLIPS, Judge.

Without considering whether Dr. Glinski’s testimony as to the worker having a general bodily disability due to his musculo-skeletal 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 Commission may award proper and equitable compensation not to exceed twenty thousand dollars ($20,000);

[240]*240and has been construed not to require compensation, but to give the Commission discretion to award compensation when the conditions stated exist. Little v. Penn Ventilator Co., 317 N.C. 206, 218, 345 S.E. 2d 204, 212 (1986).

Affirmed.

Judges Eagles and Parker concur.

Cite This Page — Counsel Stack

Bluebook (online)

373 S.E.2d 878, 92 N.C. App. 237, 1988 N.C. App. LEXIS 1021, 1988 WL 129243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fowler-v-b-e-k-construction-inc-ncctapp-1988.

Opinion

Related

Cite This Page — Counsel Stack