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Boles v. U.S. Air2/5/2002
of fact are supported by any competent evidence in the record; and (2) whether the Commission's findings justify its conclusions of law." Goff v. Foster Forbes Glass Div., 140 N.C. App. 130, 132-33, 535 S.E.2d 602, 604 (2000). If there is competent evidence to support the findings, they are conclusive on appeal even though there is evidence to support contrary findings. Hedrick v. PPG Industries, 126 N.C. App. 354, 484 S.E.2d 853, disc. review denied, 346 N.C. 546, 488 S.E.2d 801 (1997). However, ". . . findings of fact by the Commission may be set aside on appeal when there is a complete lack of competent evidence to support them." Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000). We also emphasize that "' he Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.'" Dolbow v. Holland Industrial, Inc., 64 N.C. App. 695, 697, 308 S.E.2d 335, 336 (1983) (quoting Anderson v. Lincoln Construction Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)), disc. review denied, 310 N.C. 308, 312 S.E.2d 651 (1984). "Thus, the Commission may assign more weight and credibility to certain testimony than other." Id. at 697, 308 S.E.2d at 336. See also Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998).
Defendant argues that the Commission improperly relied on Dr. Branham's testimony in its determination that plaintiff remains totally disabled. Defendant specifically argues that Dr. Branham's opinion testimony is speculative and therefore incompetent evidence. Defendant notes that in 1993, Dr. Branham wrote plaintiff out of work to reduce stress, testified in 1995 that plaintiff was unable to work due to pain, impaired mental and cognitive abilities, and difficulty relating to other people, and testified in 1998 that plaintiff's impaired mental and cognitive abilities and plaintiff's difficulty with interpersonal relationships had resolved but that she was still unable to return to work due to pain and intermittent depression. Defendant argues that Dr. Branham's 1995 testimony that pain was largely a function of plaintiff's anatomical problem with which Dr. Curling was more familiar was inconsistent with his 1998 testimony that plaintiff is unable to perform as a reservationist because of the concentration and agility of movement required and because using the left arm could increase her pain. Defendant points out that Dr. Branham testified there were no tests to measure pain and therefore, defendant asserts Dr. Branham must be relying on plaintiff's perception of pain to determine when plaintiff can return to work.
There was competent evidence, from the testimony of Dr. Branham and from plaintiff's own testimony, supporting the Commission's finding that plaintiff continues to be totally disabled. This Court has previously held that an employee's own testimony as to pain and ability to work is competent evidence as to the employee's ability to work. See Matthews v. Petroleum Tank Service, Inc. 108 N.C. App. 259, 423 S.E.2d 532 (1992) (employee's own testimony concerning level of pain he suffered was competent evidence as to his ability to work); Niple v. Seawell Realty & Indus. Co., 88 N.C. App. 136, 362 S.E.2d 572 (1987), (employee's own testimony as to pain upon physical exertion competent evidence as to her ability to work), disc. review denied, 321 N.C. 744, 365 S.E.2d 903 (1988). Plaintiff testified that she believes that she is unable to handle calls as a reservationist because one must keep a lot of information in memory, it is stressful, and ". . . with the pain that I've got, I cannot think at times . . . . I have constant pain, and . . . when the pain overwhelms me, I am not able to keep my thoughts in line . . . at times
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