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Rooker v. Food Lion10/18/2005
full Commission had no competent evidence of record that he was able to work in his job asassistant store manager, and therefore, the full Commission should be reversed. This argument is without merit as well.
Here, the record on appeal contains evidence that Dr. Tellis released Mr. Rooker from his care on 8 November 2000, because Mr. Rooker had reached maximum medical improvement with regard to his back injury and retained zero percent (0%) permanent partial disability. Dr. Tellis saw no reason Mr. Rooker could not have resumed being as active as possible. Accordingly, there is competent evidence of record that Mr. Rooker was able to return to his job as assistant store manager. Following Adams, we conclude that finding of fact thirty-one is supported by competent evidence. Therefore, finding of fact thirty-one is binding on appeal.
Having determined that the full Commission's findings of fact are supported by competent evidence, we turn to the full Commission's conclusions of law, which we review de novo. Snead v. Carolina Pre-Cast Concrete, Inc., 129 N.C. App. 331, 335, 499 S.E.2d 470, 472 (1998).
In his appeal, Mr. Rooker selects particular sentences from the full Commission's findings of fact 21, 22, 23, 24, and 25, and argues that if the full Commission accepts these findings as correct, then they misapprehended the law. This reliance is misplaced. Even assuming that the full Commission did find some facts favoring Mr. Rooker, this would not mandate a conclusion in favor of Mr. Rooker. Rather, Mr. Rooker bears the burden of proving his case by the "greater weight of the evidence." Bailey v. Sears Roebuck & Co., 131 N.C. App. 649, 654, 508 S.E.2d 831, 835(1998). Thus, even if the full Commission recited facts tending to support Mr. Rooker, the Commission has the duty to weigh the evidence and the authority to conclude that Mr. Rooker's evidence was outweighed by Food Lion's evidence. Hawley v. Wayne Dale Constr., 146 N.C. App. 423, 428, 552 S.E.2d 269, 272 (2001) (holding that the "Commission may weigh the evidence and believe all, none or some of the evidence") (citation omitted).
In sum, because "there is some competent evidence in the record to support" the Commission's findings of fact, "we hold that the full Commission's findings of fact conclusive on appeal." Adams, 349 N.C. at 682, 509 S.E.2d at 414. We also conclude that these findings of fact support the Commission's conclusions of law and award.
Affirmed.
Judges CALABRIA and LEVINSON concur.
Report per Rule 30(e).
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