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Hooker v. Stokes-Reynolds Hospital11/4/2003
termines "whether the record contains any evidence tending to support the finding." Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (citation and quotation marks omitted), reh'g denied, 350 N.C. 108, 532 S.E.2d 522 (1999). The 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. This means that the Commission's findings are binding if they are supported by any of the evidence, even if the evidence could also have supported a contrary finding. Id. at 115, 630 S.E.2d at 55253. Finally, in making these determinations, this Court must view the evidence in the light most favorable to plaintiff. Adams, 349 N.C. at 681, 509 S.E.2d at 414.
I.
Here, defendants first contend that plaintiff misrepresented her medical history when applying for the CNA job , and argue that the Commission failed to make a finding about whether plaintiff made misrepresentations during the interview process. The findings of the Commission indicate otherwise. Finding of fact 4 states that during the interview process, Karen Lawrence asked plaintiff about any injuries which might prevent her from performing the duties of a CNA, and " laintiff told Ms. Lawrence about plaintiff's fall as a truck driver." By implication, this finding indicates that the Commission found that plaintiff did not misrepresent her history to Ms. Lawrence.
The evidence before the Commission supports this finding. At the hearing, Lawrence and another nurse employed by defendants testified that plaintiff would not have been hired had they known that the truck accident had included a back injury as well as an ankle injury. Plaintiff testified that she told Lawrence about the truck accident and did not mention her back injury because her back was no longer troubling her at that time; Ms. Lawrence asked her about injuries that might limit her ability to perform the job . This evidence supports the Commission's finding that plaintiff disclosed her prior injury before being hired. We do not concern ourselves with whether the evidence might support some other finding, because this Court's "duty goes no further than to determine whether the record contains any evidence tending to support the finding." Adams, 349 N.C. at 681, 509 S.E.2d at 414. The Commission's finding of fact, in turn, adequately support its related conclusions of law.
Although the heading of argument I of defendants' brief refers to assignments of error 1 and 2, which challenge several findings of fact and all of the conclusions of law, they make no argument in the body of the brief regarding any of the individual findings of fact. Thus, we deem assignment of error 2 (challenging findings 12, 16, 17, and conclusions 1 through 5) abandoned. See N.C.R. App. P. 28(b)(6). Most of defendants' first argument consists of urging this Court to adopt a new rule of law regarding the effect of a plaintiff's misrepresentations in worker's compensation cases.
Because the Commission did not find any misrepresentation on the part of plaintiff, we need not reach the merits of defendants' contention that this Court should adopt a misrepresentation defense in worker's compensation cases. We do note, however, that neither the Industrial Commission nor this Court has the authority to adopt such a defense, if it is not found in the Worker's Compensation Act. Our Supreme Court "has warned against any inclination toward judicial legislation" in the construction of the Worker's Compensation Act. Johnson v. Southern Indus. Constructors, 347 N.C. 530, 536, 495 S.E.2d 356, 359 (1998).
II.
Defendants next argue that the Commission's award should be reversed because plaintiff
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