 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Smith v. Goodyear Tire & Rubber Co.6/7/2005
On 15 March 2002, defendants filed a Form 24 "Application to Terminate Benefits" on grounds that plaintiff's current condition preventing him from being able to work was unrelated to his compensable workplace injury. On 17 April 2002, a Special Deputy Commissioner filed an order approving the termination of plaintiff's benefits effective 15 March 2002. In response to plaintiff's motion for reconsideration, an order dated 21 May 2002 was issued, affirming the Deputy Commissioner's prior decision. Plaintiff's Form 33 "Request for Hearing" before the Deputy Commissioner was filed on 25 July 2002. The parties obtained medical deposition testimony from Dr. Bruce Jaufmann prior to filing Form 24. On 25 September 2002, the parties presented stipulated medical records to the Deputy Commissioner.
At the hearing before the Deputy Commissioner, the sole issue was whether plaintiff was entitled to disability benefits as of 26 February 1999 and ongoing. After hearing live testimony, reviewingdeposition testimony, exhibits and other submissions of the parties, the Deputy Commissioner issued an Opinion and Award filed 30 April 2003 denying plaintiff's claim for ongoing total disability compensation benefits.
Plaintiff appealed to the Full Commission on 1 May 2003. At the pre-trial hearing, the parties stipulated to plaintiff having "suffered a compensable injury arising out of and in the course of his employment with defendant-employer" on 27 June 1994. In an Opinion and Award dated 31 March 2004, the Commission reversed the Opinion and Award of the Deputy Commissioner and found plaintiff to be totally disabled. The Commission ordered defendants to pay total disability compensation at the rate of $466.00 per week from "26 February 1999 and ongoing." In addition, defendants were ordered to pay all of plaintiff's medical expenses incurred, or to be incurred, as a result of his work related injury, reasonable attorney's fees and costs. Defendants appealed.
The dispositive issue on appeal is whether the Commission erred in concluding and awarding plaintiff total disability benefits after 26 February 1999 and finding and concluding plaintiff's compensable back injury (radiculopathy) is a contributing factor in his ongoing disability. " hen reviewing Industrial Commission decisions, appellate courts must examine 'whether any competent evidence supports the Commission's findings of fact and whether [those] findings . . . support the Commission's conclusions of law.'" McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 700 (2004) (quoting Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000)); Cox v. City of Winston-Salem,157 N.C. App. 228, 231, 578 S.E.2d 669, 673 (2003); Pernell v. Piedmont Circuits, 104 N.C. App. 289, 292, 409 S.E.2d 618, 619 (1991). The Commission's findings of fact are conclusive on appeal even where there is contrary evidence, and such findings may only be set aside where there is a "complete lack of competent evidence to support them." Johnson v. Herbie's Place,157 N.C. App. 168, 171, 579 S.E.2d 110, 113 (2003) (citation omitted); See also Adams v. AVX Corp.,349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998). It is the Commission's duty to judge the credibility of the witnesses and to determine the weight given to each testimony. Bailey v. Sears Roebuck & Co., 131 N.C. App. 649, 653, 508 S.E.2d 831, 834 (1998).
Disability under the Workers' Compensation Act is defined as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." N.C. Gen. Stat. ยง 97-2(9) (2003). Plaintiff may meet his burden of showing disability in one of four ways:
Page 1 2 3 4 5 6 7 North Carolina Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|