Myers v. Bbf Printing Solutions

645 S.E.2d 873, 184 N.C. App. 192, 2007 N.C. App. LEXIS 1318
CourtCourt of Appeals of North Carolina
DecidedJune 19, 2007
DocketNo. COA06-1298.
StatusPublished
Cited by1 cases

This text of 645 S.E.2d 873 (Myers v. Bbf Printing Solutions) 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
Myers v. Bbf Printing Solutions, 645 S.E.2d 873, 184 N.C. App. 192, 2007 N.C. App. LEXIS 1318 (N.C. Ct. App. 2007).

Opinions

TYSON, Judge.

BBF Printing Solutions ("defendant") appeals from the Full Commission of the North Carolina Industrial Commission's ("the Commission") opinion and award entered granting Billy Myers ("plaintiff") permanent total disability benefits. We affirm in part and reverse in part.

I. Background

On 4 June 1979, plaintiff began work for defendant at its plant in Rural Hall, North Carolina. Plaintiff's job duties included setting up and monitoring eleven units on a seventeen-inch printing press.

On 9 August 2001, plaintiff sustained a work-related injury to his non-dominant left hand and arm. Plaintiff was injured while energizing a printing press when a rewind shaft attached to the press rotated in a different direction than he anticipated. The press pulled his left arm toward it and twisted his left thumb and wrist. Plaintiff continued work until his thumb and wrist began to swell. Plaintiff went to a local medical facility, was given a splint, and returned to work the next day.

Plaintiff continued working for defendant in a limited capacity until 15 November 2001, when defendant notified its employees the Rural Hall plant was closing. Defendant laid off most of its employees, including plaintiff. Plaintiff had been employed as a printing press operator with defendant for twenty-two years.

On 4 December 2001, plaintiff filed a claim for workers' compensation benefits. On 20 November 2002, the matter was heard before Deputy Commissioner Nancy W. Gregory. On 15 July 2003, Deputy Commissioner Gregory entered an opinion and award that concluded plaintiff: (1) suffered an injury by accident to his left thumb, wrist, hand, and shoulder; (2) failed to prove he was incapable, because of the injury, to earn the same or greater wages he was receiving at the date of the injury in the same or any other employment; (3) was not entitled to receive temporary total or temporary partial disability; and (4) was entitled to additional medical treatment. Both plaintiff and defendant appealed to the Full Commission. Defendant failed to file a Form 44 Application for Review with the Commission and did not perfect its appeal.

On 20 January 2004, the matter was heard before the Full Commission. On 18 January 2005, plaintiff moved for an award of attorney's fees pursuant to N.C. Gen.Stat. § 97-88. On 13 July 2006, the Commission entered an opinion and award that concluded: (1) plaintiff suffered an injury by accident to his left thumb, arm, hand, and shoulder arising out of and in the course of his employment with defendant; (2) plaintiff was entitled to total disability compensation from 15 November 2001 and continuing each week for *875his lifetime; and (3) defendant shall pay all of plaintiff's medical expenses relating to the injury "as long as said treatment tends to effect a cure, give relief, or lessen the period of plaintiff's disability." The Commission also awarded plaintiff $2,000.00 in attorney's fees pursuant to N.C. Gen.Stat. § 97-88. Defendant appeals.

II. Issues

Defendant argues the Commission erred by: (1) concluding plaintiff is permanently and totally disabled and (2) awarding plaintiff attorney's fees.

III. Standard of Review

Defendant set out thirty-six assignments of error in the record on appeal. Defendant assigned error to all but three of the Commission's thirty-four findings of fact. "Assignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned." N.C.R.App. P. 28(b)(6) (2007) (emphasis supplied); see Animal Legal Defense Fund v. Woodley, ___ N.C.App. ___, ___, 640 S.E.2d 777, 779 (2007) ("[W]e will not review defendants' unargued assignments of error.").

Our Supreme Court has stated:

[W]hen reviewing Industrial Commission decisions, appellate courts must examine "whether any competent evidence supports the Commission's findings of fact and whether [those] findings . . . support the Commission's conclusions of law." The Commission's findings of fact are conclusive on appeal when supported by such competent evidence, "even though there [is] evidence that would support findings to the contrary."

McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 700 (2004) (emphasis supplied) (quoting Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000); Jones v. Myrtle Desk Co., 264 N.C. 401, 402, 141 S.E.2d 632, 633 (1965)). "The full Commission is the sole judge of the weight and credibility of the evidence[.]" Deese, 352 N.C. at 116, 530 S.E.2d at 553.

IV. Total Disability

A. Matters Preserved for Appellate Review

By defendant's first argument, it argues the Commission erred by concluding plaintiff was permanently and totally disabled because there was no competent evidence that: (1) he was incapable of earning wages in the same employment; (2) he was incapable of earning the same wages in any other employment; and (3) plaintiff's inability to earn the same wages is due to his work-related injury. Defendant's argument is the Commission's finding of fact number thirty is not supported by competent evidence. The Commission found as fact:

30. Beginning November 15, 2001, and thereafter, plaintiff has been unable to earn the wages he was earning at the time of his injury in the same or any other employment due to his accidental injuries of August 9, 2001.

Within this broad argument, defendant also specifically argues the Commission's findings of fact numbered 9, 28, and 34 are not supported by competent evidence. The Commission found as fact:

9. Plaintiff was unable to perform the required normal work duties of a pressman and a forklift operator for the defendant due to his August 9 injuries during the period August 9, 2001, through November 14, 2001, when he last worked for the defendant, which closed its plant on that date and laid off its employees.

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28.

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Bluebook (online)
645 S.E.2d 873, 184 N.C. App. 192, 2007 N.C. App. LEXIS 1318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/myers-v-bbf-printing-solutions-ncctapp-2007.