Johnson v. SOUTHERN TIRE SALES AND SERVICE

567 S.E.2d 773, 152 N.C. App. 323, 2002 N.C. App. LEXIS 920
CourtCourt of Appeals of North Carolina
DecidedAugust 20, 2002
DocketCOA01-917
StatusPublished
Cited by4 cases

This text of 567 S.E.2d 773 (Johnson v. SOUTHERN TIRE SALES AND SERVICE) 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
Johnson v. SOUTHERN TIRE SALES AND SERVICE, 567 S.E.2d 773, 152 N.C. App. 323, 2002 N.C. App. LEXIS 920 (N.C. Ct. App. 2002).

Opinions

McGEE, Judge.

Willie B. Johnson (plaintiff) sustained a compensable injury to his back while employed at Southern Tire Sales and Service on 24 October 1996. Plaintiff was using a long iron pry bar while replacing a lower ball joint when the pry bar slipped. Defendants issued a form 63 payment of compensation and did not deny the claim within the 120-day time limitation provided in N.C. Gen. Stat. § 97-18 (1999). Plaintiff continued to work without seeking medical treatment until 27 November 1996, when plaintiff saw Dr. Bernard Bennett (Dr. Bennett).

Dr. Michael Gwinn (Dr. Gwinn) saw plaintiff on 12 March 1997. Dr. Gwinn stated plaintiff suffered from chronic mechanical back pain related to lumbar degenerative disk disease. After a meeting with plaintiff on 1 May 1998, Dr. Gwinn testified the pain plaintiff reported [325]*325was greater than the objective tests would indicate. Dr. Gwinn discontinued his treatment of plaintiff on 1 May 1998, stating he could no longer treat plaintiff due to plaintiffs attorney’s involvement. Plaintiff returned to Dr. Bennett.

Plaintiff began treatment with Dr. Charles A. Cook (Dr. Cook) on 13 July 1998. Dr. Cook testified that on this date plaintiff could not perform any physical activity that would require standing or sitting for periods of more than twenty minutes, bending or squatting, or lifting more than five pounds. Dr. Cook continued to be plaintiffs treating physician through the time of the hearing.

Plaintiff saw Dr. William Lestini (Dr. Lestini), a spinal surgeon, on 6 October 1998. Dr. Lestini made a presumptive diagnosis of symptomatic painful disc disease.

Plaintiff began meeting with Ronald Alford (Alford), a certified vocational rehabilitation specialist, in August 1997. Alford testified plaintiff repeatedly insisted he could not return to work, not only to Alford, but also to potential employers with whom plaintiff met. Alford secured approximately twelve job leads for plaintiff, but plaintiff was not offered a job by any of these employers.

A deputy commissioner entered an opinion and award in favor of defendants on 27 April 2000. The Industrial Commission reversed the deputy commissioner’s decision in an opinion and award entered on 6 February 2001. The Industrial Commission awarded plaintiff ongoing total disability, all medical expenses incurred by plaintiff as a result of the 24 October 1996 injury, and approved Dr. Cook as plaintiff’s treating physician. Defendants appeal from this opinion and award.

I.

Defendants first argue the Industrial Commission erred in concluding that plaintiff cooperated with vocational rehabilitation and is entitled to ongoing total disability. Defendants contend the Industrial Commission did not consider all of the pertinent and relevant evidence. We disagree.

On an appeal from an opinion and award from the Industrial Commission, the standard of review for this Court “is limited to a determination of (1) whether the Commission’s findings of fact are supported by any competent evidence in the record; and (2) whether the Commission’s findings justify its conclusions of law.” Goff v. [326]*326Foster Forbes Glass Div., 140 N.C. App. 130, 132-33, 535 S.E.2d 602, 604 (2000). “The facts found by the Commission are conclusive upon appeal to this Court when they are supported by competent evidence, even when there is evidence to support contrary findings.” Pittman v. International Paper Co., 132 N.C. App. 151, 156, 510 S.E.2d 705, 709, aff’d, 351 N.C. 42, 519 S.E.2d 524 (1999). Furthermore, the “ ‘findings of fact by the Industrial Commission are conclusive on appeal if supported by any competent evidence.’ ” Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (quoting Gallimore v. Marilyn’s Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977)).

The Industrial Commission made several relevant findings of fact:

14. Plaintiff has made a reasonable effort to locate suitable employment on his own and through leads provided to him by Mr. Alford since he was first medically removed from work by Dr. Adomonis on 27 January 1997.
18. Because no job was ever offered to plaintiff, it cannot be found that he unjustifiably refused suitable employment.
20. Dr. Gwinn’s opinion that plaintiff had “likely” reached maximum medical improvement is not given weight. This is so because it is clear from the evidence that plaintiff continues to experience debilitating pain as the result of his 24 October 1996 injury by accident.
21. The Full Commission gives greater weight to the testimony and opinions of Dr. Cook as opposed to testimony and opinions of Dr. Gwinn and Mr. Alford.

After a careful review of the record, we find these findings of fact are supported by competent evidence in the record. Defendants point this Court to no specific finding of fact that is without supporting evidence. Defendants contend plaintiff refused suitable employment, but they produce no evidence of any actual refusal. Defendants merely argue the Industrial Commission could have reached such a conclusion based on the rule of law that capacity to earn wages can be based on an employee’s ability to be hired if the employee had diligently sought work. However, the only evidence defendants offer to support plaintiff’s ability to diligently seek and obtain employment is [327]*327the “opinion” of Alford. The Industrial Commission specifically found that it gave less weight to the opinions of Alford and Dr. Gwinn, as opposed to Dr. Cook’s opinion. Defendants merely want this Court to weigh the opinions and testimony of the witnesses in a manner which benefits defendants. On an appeal from the Industrial Commission, this Court is unable to weigh evidence.

“Before making findings of fact, the Industrial Commission must consider all of the evidence. The Industrial Commission may not discount or disregard any evidence, but may choose not to believe the evidence after considering it.” Weaver v. American National Can Corp., 123 N.C. App. 507, 510, 473 S.E.2d 10, 12 (1996) (emphasis in original). We stress the Industrial Commission

“is the sole judge of the credibility of the witnesses and the weight to be given their testimony.” Thus, the Commission may assign more weight and credibility to certain testimony than other. Moreover, if the evidence before the Commission is capable of supporting two contrary findings, the determination of the Commission is conclusive on appeal.

Dolbow v. Holland Industrial, 64 N.C. App. 695, 697, 308 S.E.2d 335, 336 (1983), disc. review denied, 310 N.C. 308, 312 S.E.2d 651 (1984) (quoting Anderson v. Lincoln Construction Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)). This assignment of error is without merit.

II.

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Related

Johnson v. Southern Tire Sales & Service, Inc.
758 S.E.2d 19 (Court of Appeals of North Carolina, 2014)
Johnson v. Southern Tire Sales and Service
599 S.E.2d 508 (Supreme Court of North Carolina, 2004)
Johnson v. Herbie's Place
579 S.E.2d 110 (Court of Appeals of North Carolina, 2003)
Johnson v. SOUTHERN TIRE SALES AND SERVICE
567 S.E.2d 773 (Court of Appeals of North Carolina, 2002)

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Bluebook (online)
567 S.E.2d 773, 152 N.C. App. 323, 2002 N.C. App. LEXIS 920, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-southern-tire-sales-and-service-ncctapp-2002.