Smith v. Carolina Footwear, Inc.

274 S.E.2d 386, 50 N.C. App. 460, 1981 N.C. App. LEXIS 2135
CourtCourt of Appeals of North Carolina
DecidedFebruary 3, 1981
DocketNo. 8010IC544
StatusPublished
Cited by5 cases

This text of 274 S.E.2d 386 (Smith v. Carolina Footwear, 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
Smith v. Carolina Footwear, Inc., 274 S.E.2d 386, 50 N.C. App. 460, 1981 N.C. App. LEXIS 2135 (N.C. Ct. App. 1981).

Opinion

WELLS, Judge.

In her first and second assignments of error, plaintiff contends that the Commission erred in refusing to consider plaintiffs claim based on newly discovered evidence. In order to put these matters in proper perspective, we quote her motion in its entirety:

Now comes the plaintiff in the above-entitled cause and respectfully moves for a rehearing of her claim and for an examination by the Industrial Commission’s Medical Examiner, pursuant to G.S. 97-47;
In support of her motion, the plaintiff shows as follows:
1. That the testimony of Dr. Menno Pennick [s-ic] on October 12,1976, was contrary to prior verbal and written statements given to the plaintiff and third parties;
2. That she was surprised by the testimony of Dr. Pen-nick, [sic] on October 12,1976, and was afforded no opportunity to impeach his testimony with prior inconsistent statements;
3. That she has written statements submitted by Dr. Pennick, [sic] to the Industrial Commission and to Ritter Finance Company which state that she was disabled by her work-related accident of February 20,1974;
4. That the symptoms of her leg injury of February 20, 1974 are still present and, in fact, have worsened to the extent that same would be apparent upon examination by a competent physician;
5. That she has not experienced pain or other discomfort to her leg as a result of an automobile accident in which she was involved in 1975.
WHEREFORE based upon the foregoing, plaintiff through counsel respectfully requests that she be granted a rehearing of her claim for the reasons stated and that [463]*463she be examined by Dr. A. E. Harer, Medical Director of the Industrial Commission, and that his report be submitted to the Commission.

It would appear from the wording of the motion that plaintiff was seeking a hearing de novo on the merits of her claim. The reaction of the Commission indicates that they were uncertain as to plaintiffs intent. Their order of 28 July 1977 treated the motion disjunctively as one to re-open on grounds of newly discovered evidence, which they denied, and as one for a new hearing on change of condition, which they allowed.

We initially address the question of whether plaintiff was entitled to a hearing de novo. We hold that she was not. The record shows—and plaintiff admits—that she did not perfect an appeal from the Commission’s order of 10 February 1977. Under those circumstances, the only avenue of review open to plaintiff was an application for review based on a change of condition, pursuant to the provisions of G.S. 97-47.1 The Commission granted plaintiff a further hearing for the purpose of determining whether she had experienced a change of condition. At that hearing, plaintiff was allowed to present all the evidence she offered. This evidence consisted of her own testimony as to changes in her condition since her injury on 20 February 1974, the testimony of Dr. Sainz, the reports of Dr. Ahmad, and the x-ray and bone scan reports from Bladen and Cumberland County hospitals. Because it appears from the record before us that all of this evidence was generated after the Commission’s order was entered in the initial hearing, we must assume that at the hearing now under review, Commissioner Rush allowed plaintiff to present or introduce all her “newly discovered evidence.” These events and circumstances render plaintiff’s first two assignments of error moot or groundless, and they are therefore [464]*464overruled.

In two other assignments of error, plaintiff asserts that (1) the Commission erred in denying plaintiffs claim based on a change of condition; and (2) the Commission erred in finding facts which were not supported by competent evidence. We shall discuss these arguments in tandem, but in reverse order. It is not necessary for us to recite in detail the findings made by Commissioner Rush and adopted by the full Commission, but we will summarize them to the extent necessary to resolve the issues. Commissioner Rush accurately recapitulated the testimony and medical findings of Dr. Sainz, culminating in the opinion of Dr. Sainz that since her on-the-job injury, plaintiff had suffered a thirty to forty per cent loss of functional capacity, a thirty per cent loss of use of her right leg, and that these conditions could have been caused by her on-the-job injury. The Commissioner also accurately recapitulated the testimony of Dr. Pennink, whose testimony boils down to his opinion that plaintiff suffered no permanent damage from her on-the-job injury and that such pain or discomfort as she presently may suffer is a result of the disc problem caused by the automobile accident. Plaintiff does not argue that Dr. Pennink’s testimony was not competent evidence. On this point, she argues that his testimony was inconsistent and conflicting. We do not find it so; but however that may be, it is not for us to weigh the evidence. That is the function of the Commission, as the trier of fact. In an appeal from an award of the Industrial Commission, the scope of our review is limited. If the findings of fact made by the Commission are supported by competent evidence, we must accept those findings as final. Hollar v. Furniture Co., 48 N.C. App. 489, 490, 269 S.E. 2d 667, 668 (1980). It is clear that in the case subjudice, Commissioner Rush considered and weighed all the competent evidence and resolved such conflicts and inconsistencies as he may have seen in the evidence. We hold that his findings of fact were supported by competent evidence.

We next discuss whether plaintiff is entitled to an award of compensation. It is settled law that it is not the injury itself which is compensable under the Worker’s Compensation statute, rather it is the loss of capacity to earn resulting from the injury which entitled the worker to compensation. Ashley v. Rent-A-Car Co., 271 N.C. 76, 155 S.E. 2d 755 (1967). Where the findings of fact, supported by competent evidence, are that plaintiff did not in fact suffer any loss of capacity to work from her on-the-job injury and that such di-sabil[465]*465ity as she may presently suffer resulted from other causes not related to that injury, there can be no conclusion other than that reached by the Commission: Plaintiffs condition, as that term is used in G.S. 97-47, has not changed, and she is not entitled to compensation. We affirm the Commission’s conclusions and overrule these assignments of error.

Finally, plaintiff argues that the Commission erred in allowing Dr. Pennink to give opinion testimony, over plaintiff’s objections, as to the cause of plaintiff’s pain. Plaintiff argues that the facts on which an opinion is based which are not within the knowledge of the witness, such as results of x-rays routinely done to arrive at a diagnosis, must be framed in a hypothetical question. In order to put this issue in proper perspective, we will briefly review the plaintiff’s history following her on-the-job injury. Based on her testimony at the original hearing, it would appear that although plaintiff did not lose significant work time immediately following her on-the-job injury, she consulted Dr. J. E. Dunlap on 4 March 1974, about two weeks after her injury, and again on 4 April 1974. She was examined by Dr. O. A. Barnhill on 8 April, 3 June, 11 June and 27 August 1974.

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Bluebook (online)
274 S.E.2d 386, 50 N.C. App. 460, 1981 N.C. App. LEXIS 2135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-carolina-footwear-inc-ncctapp-1981.