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Whitfield v. Laboratory Corporation of America6/17/2003
the only reasonable interpretation[, it] is for the Commission to determine the credibility of the witnesses, the weight to be given the evidence, and the inferences to be drawn from it. As long as the Commission's findings are supported by competent evidence of record, they will not be overturned on appeal."
Johnson, ___ N.C. App. at ___, 579 S.E.2d at 113 (quoting Rackley, 153 N.C. App. at 472, 570 S.E.2d at 124 (citation omitted)). There is conflicting evidence as to whether the injuries plaintiff complains of resulted from the fall on 5 June 1998. "The Commission's findings will not be disturbed on appeal if they are supported by competent evidence even if there is contrary evidence in the record." Hawley, 146 N.C. App. at 427, 552 S.E.2d at 272 (citations omitted). We find that there is sufficient evidence, in the form of deposition testimony of Dr. Huh, whose competence to testify we discussed above, and testimony by plaintiff to support the Commission's finding that plaintiff's injury was compensable. Defendants are essentially asking us to reverse the decision of the Commission on the basis of disputed testimony, which we cannot do. This argument is overruled.
IV.
Defendants next argue that even if plaintiff can show that she sustained a compensable injury on 5 June 1998, there is no evidence on which to base a finding and conclusion that her injury resulted in any compensable disability. Defendants argue that findings of fact 33 and 34 are not supported by competent evidence in the record, and thus conclusion of law number 2 and paragraph 1 of the award by the Commission are without support.
The challenged findings state as follows:
33. While defendants paid plaintiff some temporary disability benefits during the periods she was unable to work from June 9 - June 16, and June 19 - July 15, 1998, they have paid her no benefits from the period since July 20, 1998. As a result of her injury , plaintiff was unable to earn wages in any employment from July 20, 1998 through July 31, 1998.
34. As a result of her injury , plaintiff has sustained diminished wage earning capacity. Plaintiff's earning as a part-time bus driver are indicative of her wage earning capacity. Plaintiff has been partially disabled since August 1, 1998.
Defendants argue that no medical evidence indicated that plaintiff was unable to work during the period from 20 July 1998 to 31 July 1998. In fact, defendants argue that plaintiff's treating physician authorized plaintiff to return to work and that plaintiff's "wage loss" was due to her failure to return to work. However, the Commission found that plaintiff, after talking to her supervisor, remained home and either called in or had someone call on her behalf everyday until she was able to return to work with employer. The Commission found that plaintiff was informed by employer that this was a suitable course of action under the circumstances, and that it was not until 27 July 1998, the second day she came to work after this recovery period, that plaintiff learned she was being fired for staying home to recover. These findings were supported by competent evidence in the record, including testimony of employer's branch manager, plaintiff, plaintiff's mother, and plaintiff's friend. The Commission did not err in its determination that plaintiff did not refuse to return to work.
Defendants also argue that plaintiff has not shown any diminished earning capacity since the evidence shows plaintiff earned $5,516.00 in 1997, $9,253.00 in 1998, and $11,790.42 in 1999. However, in paragraph 5 of the pre-trial agreement entered into by the parties, the parties stipulated that plaintiff's average weekly
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