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Gilliam v. Perdue Farms11/2/1993
on specialist, determined that claimant's test results placed him in the range of mild mental retardation. Stephen D. Carpenter, a vocational rehabilitation consultant, completed a functional capacity assessment of claimant revealing that claimant is cognitively dysfunctional and appears to be mentally retarded. He testified that, in his opinion, claimant would have difficulty meeting critical vocational demands in the work place and is not employable.
The foregoing evidence was sufficient to support the Full Commission's findings (1) that, due to the injuries to claimant's lower back and the chronic incapacitating pain, claimant "is only capable of less than sedentary work not involving significant lifting, bending and stooping or prolonged standing or sitting," and (2) that there is no such work for "someone of . . . [claimant's] age, education, background and work experience."
Defendant supports his contention that plaintiff is capable of returning to work and is able to obtain employment by referring to statements made by Ms. Sedor, who testified that there are positions available in the job market which plaintiff could obtain and would be capable of performing. Offsetting that testimony, however, there was competent evidence that, given claimant's age, education, and experience, there is no sedentary work which would accommodate his inability to lift, bend, stoop, or be in prolonged sitting or standing positions.
The Industrial Commission found as fact that "as a result of his permanent back injury plaintiff is not able to return to his regular chicken catching job ." The Commission further found that because of "plaintiff's age, education, background, and work experience with the physical limitations that he has from his chronic pain," plaintiff will not be able to obtain employment. These findings, supported by competent evidence, satisfy the three-part test for disability set out in Hilliard, and, despite competent evidence to the contrary, are conclusive on appeal. Hilliard, 305 N.C. at 595, 290 S.E.2d at 684.
Finally, we address ex mero motu the issue of claimant's counsel's violation of the Rules of Appellate Procedure. In gross violation of N.C.R. App. P. 28(d), counsel attached to claimant's brief lengthy appendices comprised of two complete depositions, a vocational rehabilitation report, and all of the trial exhibits. In a case in which the outcome depended upon the identification of competent evidence supportive of the award in his client's favor, counsel further compounded the problem by referring to a whole appendix, rather than the particular pages that might contain the pertinent evidence. In our discretion, pursuant to Rule 35 of the Appellate Rules, we assess that portion of the costs of the appeal attributable to claimant's appendices to his brief against his counsel, with defendant to bear the remainder of the costs of the appeal.
In the appeal, we hold that there was competent evidence supporting the Industrial Commission's findings of fact and that these findings support the Commission's legal Conclusion. We affirm the award.
Affirmed.
Disposition
Affirmed.
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