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Butler v. Dupont De Nemors & Co.3/19/2002
UNPUBLISHED
A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).
Appeal by defendants from Opinion and Award of the North Carolina Industrial Commission entered 26 January 2001. Heard in the Court of Appeals 20 February 2002.
The deciding issue in this workers compensation appeal from an award favoring the employee, George C. Butler, is whether the full Commission failed to consider the medical opinion of Dr. Ira Hardy who treated Butler's back injury . Because the record fails to showthat the Commission weighed and pondered the deposition testimony of Dr. Hardy, we remand this matter to the Commission for reconsideration.
Defendants are employer E.I. DuPont de Nemours & Company (DuPont) and its risk manager, Kemper Risk Management Services. Upon being fired by DuPont on 6 October 1997, Butler reported for the first time that he suffered an unwitnessed back injury three days earlier when he slipped while walking down a staircase at his job . Before that accident, Butler had received lower-back-pain treatment from an orthopaedic surgeon who diagnosed degenerative changes.
After his work-related injury , Butler saw various medical providers including Drs. Jack Koontz, Laddie Crisp, James Harvell, James Fulghum, Keith Kittleberger, Winston Lane; and the one that concerns this appeal, Dr. Hardy. Following a hearing on this matter, Deputy Commissioner Theresa B. Stephenson concluded that Butler was not entitled to reimbursement for medical expenses incurred after 29 October 1997 nor to any temporary total disability as a result of his injury on 3 October 1997. On appeal, the full Commission reversed Deputy Commissioner Stephenson's opinion and award with Commissioner Renee C. Riggsbee dissenting. Defendants appeal.
Defendants argue on appeal that the Commission failed to consider Dr. Hardy's deposition testimony as to Butler's medical condition and the causation of his back injury . We agree.
In reviewing an opinion and award from the full Commission,this Court must determine whether there is any competent evidence to support the Commission's findings of fact, and whether those findings support the Commission's conclusions of law. See Sidney v. Raleigh Paving & Patching, 109 N.C. App. 254, 426 S.E.2d 424 (1993). The Commission's findings are conclusive on appeal if supported by any competent evidence, even though there may be competent evidence to the contrary. See Morrison v. Burlington Industries, 304 N.C. 1, 282 S.E.2d 458 (1981). "Furthermore, the Commission is the sole judge of the credibility of the witnesses as well as how much weight their testimony should be given." Bailey v. Sears Roebuck & Co., 131 N.C. App. 649, 653, 508 S.E.2d 831, 834 (1998).
The Commission "may reject entirely the testimony of a witness if warranted by disbelief of the witness." Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993). However, " efore making findings of fact, the Industrial Commission must consider all of the evidence. The Industrial Commission may not discount or disregard any evidence, but may choose not to believe the evidence after considering it." Weaver v. American National Can Corp., 123 N.C. App. 507, 510, 473 S.E.2d 10, 12 (1996) (citing Harrell v. Stevens & Co., 45 N.C. App. 197, 205, 262 S.E.2d 830, 835, disc. review denied, 300 N.C. 196, 269 S.E.2d 623 (1980)). That is, the
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