Hunter v. Apac/Barrus Const. Co.

656 S.E.2d 652, 188 N.C. App. 723, 2008 N.C. App. LEXIS 274
CourtCourt of Appeals of North Carolina
DecidedFebruary 19, 2008
DocketNo. COA07-5.
StatusPublished
Cited by1 cases

This text of 656 S.E.2d 652 (Hunter v. Apac/Barrus Const. Co.) 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
Hunter v. Apac/Barrus Const. Co., 656 S.E.2d 652, 188 N.C. App. 723, 2008 N.C. App. LEXIS 274 (N.C. Ct. App. 2008).

Opinion

GEER, Judge.

Defendants appeal from an opinion and award of the North Carolina Industrial Commission concluding that plaintiff is entitled to permanent total disability benefits as a result of injuries he sustained during his employment with defendant employer. On appeal, defendants primarily argue that the Commission should have found that plaintiff was actively involved in the running of a family farm and that this activity established that plaintiff possessed wage-earning capacity. Based upon this Court's standard of review, we hold that the Commission's findings of fact otherwise are supported by competent evidence, and those findings in turn support the conclusions of law. We, therefore, affirm.

Facts

At the time of the hearing, plaintiff was 52 years old and had a high school diploma. He began working for the defendant construction company as a heavy equipment operator on 24 September 1990. In December 1992, plaintiff and his brother also began the Hunter Hog Farm ("the farm"). Prior to being injured, plaintiff was responsible for overseeing the day-to-day operations of the farm. His son grew up helping with the farm and also learning its day-to-day operations.

On 6 May 1996, plaintiff was injured while working for defendant employer when a road sign fell and hit him in the head, resulting in a life-threatening epidural hematoma. Plaintiff was taken to the hospital where he underwent an emergency craniotomy and was released on 10 May 1996. The parties ultimately entered into a Form 21 agreement that was approved by the Commission on 17 June 1996. Plaintiff has been receiving temporary total disability benefits at a rate of $390.00 per week since 6 May 1996.

As a result of his brain injury, plaintiff suffered a change in personality that caused him to become childish, forgetful, irrational, angry, and unexpectedly belligerent. Plaintiff *654also experienced headaches, tinnitus, diminished cognitive abilities, anxiety, and depression. He was seen by Dr. Antonio E. Puente, a neuropsychologist, on 84 occasions from 15 July 1996 through 9 December 2002. Dr. Puente continues to be plaintiff's treating doctor. Dr. Puente has diagnosed plaintiff as suffering from a closed head injury with PTSD/anxiety/reactive depression and a chronic organic personality disorder. According to Dr. Puente, plaintiff's brain injury resulted in cognitive and emotional limitations, impairing his memory, organizational skills, and ability to learn new skills and led to volatility, a hypersensitivity to noise, and an inability to perform repetitive tasks for extended periods of time.

Plaintiff was also seen, at defendants' request, by Dr. Margit Royal, a board-certified neurologist, and Dr. C. Thomas Gualtieri, a neuropsychiatrist. Dr. Royal ultimately concluded plaintiff was physically capable of working, but acknowledged that plaintiff may lack the cognitive function, especially with respect to organizational skills, necessary to perform consistently. Dr. Gualtieri diagnosed plaintiff as suffering a traumatic injury to the brain that had resulted in persistent problems, including headaches, tinnitus, cognitive problems, and emotional problems.

Subsequently, defendants requested a hearing to determine "whether Plaintiff is employable and whether Plaintiff is undermining Vocational Rehabilitation and medical diagnosis efforts." The hearing was conducted by the deputy commissioner on 17 October 2002 and 16 December 2003. As reflected in the stipulations set forth in the deputy commissioner's opinion and award, defendants contended "that the Plaintiffs ownership interest in and operation of [the farm] is suitable employment such that he is no longer entitled to receive ongoing total disability benefits." On 22 December 2005, the deputy commissioner awarded plaintiff permanent total disability compensation in the amount of $390.00 per week.

Defendants appealed to the Full Commission, which affirmed the deputy commissioner's opinion and award on 6 September 2006 with minor modifications. The Commission concluded that plaintiff's ownership of the farm was not sufficient to support a finding of wage earning capacity based on its factual findings that (1) plaintiff was not involved in the day-to-day operations of the farm; and (2) the skills plaintiff used on the farm would not allow him to be employable in the competitive market place, considering his physical limitations, age, education, and experience. The Commission further concluded that because of plaintiff's compensable brain injury-and the resulting cognitive and emotional conditions-plaintiff would never be able to return to work in competitive employment, and plaintiff was, therefore, entitled to permanent total disability benefits. Defendants timely appealed the opinion and award of the Full Commission to this Court.

Discussion

Appellate review of a decision of the Industrial Commission "is limited to determining whether there is any competent evidence to support the findings of fact, and whether the findings of fact justify the conclusions of law." Cross v. Blue Cross/Blue Shield, 104 N.C.App. 284, 285-86, 409 S.E.2d 103, 104 (1991). "The findings of the Commission are conclusive on appeal when such competent evidence exists, even if there is plenary evidence for contrary findings." Hardin v. Motor Panels, Inc., 136 N.C.App. 351, 353, 524 S.E.2d 368, 371, disc. review denied, 351 N.C. 473, 543 S.E.2d 488 (2000). The Commission's findings of fact may only be set aside if there is a "complete lack of competent evidence to support them." Young v. Hickory Bus. Furniture, 353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000). This Court reviews the Commission's conclusions of law de novo. Deseth v. LensCrafters, Inc., 160 N.C.App. 180, 184, 585 S.E.2d 264, 267 (2003).

Defendants first contend that the Commission erred in concluding that plaintiff had a presumption of permanent total disability.

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Bluebook (online)
656 S.E.2d 652, 188 N.C. App. 723, 2008 N.C. App. LEXIS 274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hunter-v-apacbarrus-const-co-ncctapp-2008.