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Metcalf v. MPW Carpentry and Construction8/16/2005
t has a "quite narrow" standard of review for workers' compensation cases. Calloway v. Memorial Mission Hosp., 137 N.C. App. 480, 484, 528 S.E.2d 397, 400 (2000). As the Commission is the "sole judge of the weight and credibility of the evidence," our review of the Commission's opinion and award is "limited to reviewing whether any competent evidence supports the Commission's findings of fact and whether the findings of fact support the Commission's conclusions of law." Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). "When there is any evidence in the record that tends to support a finding of fact, the finding of fact is supported by competent evidence and is conclusive on appeal." Cannon v. Goodyear Tire & Rubber Co., ___ N.C. App. ___, ___, ___ S.E.2d ___, ___ (July 5, 2005) (No. COA04-168) (citing Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414, (1998)).
Plaintiff argues that the Commission's opinion and award should be reversed because the Commission's findings that plaintiff was not disabled after 8 March 2002 and that he was not entitled to total disability compensation, are not supported by any competent evidence. We disagree.
The record shows there is competent evidence to support The Commission's findings that plaintiff was not totally disabled after 8 March 2002. Dr. Abraham released plaintiff to full work duty on that date. Dr. Tamadon noted that plaintiff was at maximum medical improvement on 11 June 2002 and that plaintiff had a zero percent permanent partial disability rating. Dr. Tamadon did not note any work restrictions for plaintiff. Furthermore, an FCE conducted on 8 October 2002 showed that plaintiff could perform "heavy work." This is competent evidence to support the Commission's findings of fact, and the Commission's conclusions of law are supported by its findings of fact. Plaintiff's argument is therefore without merit.
Plaintiff next argues that he is entitled to an ongoing presumption of disability due to his admitted disability from 19 May 2001 to 7 March 2002, and that defendants must rebut this presumption in order to deny plaintiff's benefits. We disagree.
A Form 21 agreement between an employer and an employee that has been approved by the Commission entitles employees to an ongoing presumption of disability. Kisiah v. W.R. Kisiah Plumbing, 124 N.C. App. 72, 76-77, 476 S.E.2d 434, 436 (1996). A Form 60 allows an employer to admit that the injury suffered by the employee is compensable and that the employer is liable for compensation. Sims v. Charmes/Arby's Roast Beef, 142 N.C. App. 154, 159, 542 S.E.2d 277, 281, disc. review denied, 353 N.C. 729, 550 S.E.2d 782 (2001). The Form 60 also serves as notification to the Commission that such action has taken place. Id.
Our Court has held that admitting compensability and liability, whether through notification of the Commission by the use of a Form 60 or through paying benefits beyond the statutory period provided for in G.S. ยง 97-18(d), does not create a presumption of continuing disability as does a Form 21 agreement entered into between the employer and the employee.
Sims, 142 N.C. App. at 159-60, 542 S.E.2d at 281-82. In the present case, defendants admitted liability by a Form 60, and not by a Form 21. Therefore, the burden of proving disability remains with plaintiff. Plaintiff has presented no evidence other than his own testimony that he is still disabled. The evidence shows that plaintiff was released to full work duty by Dr. Abraham on 8 March 2002, that Dr. Tamadon gave plaintiff a zero percent permanent partial disability rating on 11 June 2002, and that plaintiff's FCE results did not indicate a disability. Ac
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