London v. Snak Time Catering, Inc.

525 S.E.2d 203, 136 N.C. App. 473, 2000 N.C. App. LEXIS 102
CourtCourt of Appeals of North Carolina
DecidedFebruary 1, 2000
DocketCOA99-342
StatusPublished
Cited by38 cases

This text of 525 S.E.2d 203 (London v. Snak Time Catering, 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
London v. Snak Time Catering, Inc., 525 S.E.2d 203, 136 N.C. App. 473, 2000 N.C. App. LEXIS 102 (N.C. Ct. App. 2000).

Opinion

HORTON, Judge.

Defendants first assign error to numerous findings of fact made by the Full Industrial Commission (Commission) regarding plaintiffs *475 need for attendant care services. Our review is limited to determining whether the findings of fact are supported by competent evidence and whether the conclusions of law are supported by the findings of fact. Barham v. Food World, 300 N.C. 329, 331, 266 S.E.2d 676, 678, reh’g denied, 300 N.C. 562, 270 S.E.2d 105 (1980). On appeal, so long as there is any competent evidence to support the facts found by the Commission, they are binding on appeal even though evidence to support a contrary finding exists. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998), reh’g denied, 350 N.C. 108, 532 S.E.2d 522 (1999). Although there is competent evidence in the record to support the findings made by the Commission, we will comment briefly on each of the findings about which defendants complain.

A.

Plaintiffs wife testified that she worked with plaintiff in his catering business from its inception until plaintiff’s accident, but had not worked outside the home since the accident. When asked how long she worked with plaintiff, his wife answered:

From day one until his accident. I was entirely over the inside, the commissary, all the food in the office and he took care of the trucks. He was on the outside.

Defendants rely on a portion of the deposition testimony of the disabled plaintiff in which he stated that, before the accident, his wife did not have a full-time job outside the home “that [he] kn[e]w of.” Although the Commission considered and weighed all the evidence and found that plaintiff’s wife did work in the catering business prior to the accident but not thereafter, defendants continue to argue that there was no evidence that plaintiff’s wife worked prior to the accident. This argument is clearly without merit and is overruled.

B.

Plaintiff’s wife further testified that she carefully supervises plaintiff’s daily activity in order to guard against harm to him or others and that plaintiff wanders about his home in the early hours of the morning. Based on competent medical evidence of record, the Commission found that “plaintiff also retains cognitive impairments which affect his personality and judgment, including obsessive/ compulsive behavior, difficulty recognizing danger, immature decision-making, spontaneous actions, lack of patience, frustration with changes to his routine, anger, and a child-like dependency on his wife.” The Commission further found that plaintiff’s impairments are *476 the result of his frontal lobe injury. Defendants offered evidence that plaintiff could do many tasks without constant supervision by other persons, including driving an automobile, using a lawnmower, using a microwave, making coffee, feeding and dressing himself, and taking care of his personal needs. There was medical evidence from a board-certified neuropsychologist, however, that persons with brain injuries do fairly well if in a “structured” setting, but problems arise when they are confronted by “novel” situations. Further, the two rehabilitation nurses who testified in this case have observed plaintiff in his usual environment and consider him a safety risk to himself and to other persons. There is ample evidence to support the Commission’s finding that plaintiffs wife must keep him under “supervision in order to keep him from being injured.”

C.

Defendant also argues that the Commission failed to make findings of fact on evidence which was offered with regard to plaintiff’s unsupervised attendance at a flea market during the work week. The Commission is not required, however, to find facts as to all credible evidence. Woolard v. N.C. Dept. of Transportation, 93 N.C. App. 214, 377 S.E.2d 267, cert. denied, 325 N.C. 230, 381 S.E.2d 792 (1989). That requirement would place an unreasonable burden on the Commission. Instead, the Commission must find those facts which are necessary to support its conclusions of law. Further, the questioned activities are cumulative of other evidence in this case which tends to show that plaintiff has the cognitive ability to perform simple tasks which are part of his routine activities. Even assuming the Commission erred in not making further findings of fact relative to plaintiff’s attendance at flea markets, such omission would not be prejudicially erroneous under the facts of this case.

D.

Defendants contend that there was no basis for the finding by the Commission that the plaintiff set fire to his home lawn on two occasions. Defendants argue that the only evidence of record about lawn fires was as a basis for the opinion testimony of Ms. Barbara Armstrong, and thus not a proper basis for findings of fact by the Commission. Again, defendants ignore the plain language of the transcript of testimony of plaintiff’s wife, in which she testified that her husband set the lawn on fire on three occasions. Further, Ms. Armstrong’s testimony tends to corroborate the testimony of plaintiff’s wife. This assignment of error is overruled.

*477 E.

The Commission’s findings that plaintiff is in need of 24-hour attendant care are supported by the testimony of Ms. Barbara Armstrong, a certified life care planner, registered nurse, certified disability management specialist, and certified case manager. A certified life care planner is specifically trained to assess the need for attendant care services and normally makes that assessment as part of preparation of a life care plan. Ms. Armstrong testified that in her opinion plaintiff needed 24-hour-per-day attendant care. Although defendants now question Ms. Armstrong’s expertise, it was for the Commission, not this Court, to assess her credibility and weigh her testimony in light of her experience and professional credentials.

F.

There was ample testimony that plaintiff needed supervision at intervals throughout the day. The neuropsychologist opined that plaintiff needed supervision every two or three hours. Dr. Gualtieri testified that, if something happened to plaintiff’s wife, plaintiff would need frequent supervision, someone checking in on him at least two to four times each day. Both Ms. Armstrong and Ms. Hill, the Commission’s rehabilitation nurse, were of the opinion that plaintiff needed around-the-clock attendant care. Ms. Hill also testified that it would not be practical to have a home health care agency provide attendant care services by monitoring plaintiff’s condition every two to four hours and that such care would be confusing to the plaintiff. Ms. Armstrong testified that many of the health care providers in North Carolina will not even go to a home unless guaranteed at least four hours of work.

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Bluebook (online)
525 S.E.2d 203, 136 N.C. App. 473, 2000 N.C. App. LEXIS 102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/london-v-snak-time-catering-inc-ncctapp-2000.