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Ray v. Parlor3/15/2005
lly view plaintiff's disfigurement pursuant to Rule 701 (9) of the Workers Compensation Rules.
When reviewing an opinion and award of the Industrial Commission, we determine "(1) whether the Commission's findings 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). The Commission performs the "ultimate fact-finding" function under our Workers Compensation Act. Adams v. AVX Corp., 349 N.C. 676, 680-81, 509 S.E.2d 411, 413 (1998), reh'g denied, 350 N.C. 108, 532 S.E.2d 522 (1999) and a determination of serious facial disfigurement "is a question of fact to be resolved by the Commission." Russell v. Laboratory Corp. of Am., 151 N.C. App. 63, 68, 564 S.E.2d 634, 638, disc. review denied, 356 N.C. 304, 570 S.E.2d 111 (2002). When the Commission's findings are supported by competent evidence, they are conclusive on appeal, Hedrick v. PPG Industries, 126 N.C. App. 354, 357, 484 S.E.2d 853, 856, disc. review denied, 346 N.C. 546, 488 S.E.2d 801-02 (1997), and this Court "may set aside a finding of fact only if it lacks evidentiary support." Holley v. ACTS, Inc., 357 N.C. 228, 231, 581 S.E.2d 750, 752 (2003).
In this case, the Commission did not base its findings on competent evidence; rather, the Commission relied upon the "description given by the deputy commissioner" and photographs of plaintiff which had been excluded as evidence representative of plaintiff's disfigurement by the deputy commissioner. IndustrialCommission Rule 701 (9) requires that " plaintiff appealing the amount of a disfigurement award shall personally appear before the Full Commission to permit the Full Commission to view the disfigurement." Worker 's Comp. R. of N.C. Indus. Comm'n 701 (9), 2003 Ann. R. (N.C.) 844. By simply adopting the facts as found by the deputy commissioner, without viewing plaintiff or having a description of the disfigurement agreed upon by the parties, the Commission has failed to base its factual findings upon competent evidence. Because there was not competent evidence before the Commission on which to base its award, the Full Commission erred in awarding plaintiff compensation for facial disfigurement. Therefore, we must remand this matter to the Commission for a new hearing and award in accordance with the Commission's rules.
Remand for new hearing.
Judges CALABRIA and GEER concur.
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