Opinion
No. 8610IC214
Filed 21 October 1986
Master and Servant 93.3 — workers' compensation — testimony by plaintiff's medical expert ruled incompetent — error In a workers' compensation case where plaintiff employee contended that he suffered a permanent disabling brain injury, the Industrial Commission erred in finding that testimony by plaintiff's psychology expert was not competent and in excluding it from consideration.
APPEAL by plaintiff from the North Carolina Industrial Commission. Opinion and award filed 6 March 1985. Heard in the Court of Appeals 21 August 1986.
James G. Gillespie, Jr. for plaintiff appellant.
Hedrick Eatman, Gardner Kincheloe, by Mel J. Garofalo, for defendant appellee.
Ennis, Friedman Bersoff, by Donald N. Bersoff; Tharrington, Smith Hargrove, by Ann L. Majestic, for Amicus Curiae.
Judge MARTIN concurs in the result.
Judge PHILLIPS dissenting.
Plaintiff appeals from an opinion and award of the Industrial Commission denying plaintiff an award for permanent, disabling brain injury. The claim was heard before Deputy Commissioner Lawrence A. Shuping. Shuping entered an opinion and award in which he found the following facts:
Plaintiff was employed as a truck driver by defendant employer. On 21 July 1980, while pulling down on a chain used to secure a load of logs on his vehicle, a log weighing approximately 1,000 pounds fell 14 1/2 feet striking plaintiff on the head. Plaintiff sustained injuries resulting in a 20 percent permanent partial disability of his back. Plaintiff also sustained permanent and disfiguring scars on his head for which he was awarded $2,500.00. Shuping found that plaintiff has not suffered any type of permanent, disabling brain injury and denied him compensation for a brain injury. Plaintiff appealed to the Full Commission which adopted the opinion of the Deputy Commissioner with one Commissioner dissenting. From the opinion and award of the Commission, plaintiff appeals.
Plaintiff contends that the denial of permanent partial disability was not based on substantial evidence, was not adequately supported and was in error as a matter of law. We disagree.
The well-established rule concerning the role of the appellate court in reviewing an appeal from the Industrial Commission is that the Court is limited to a determination of (1) whether the findings of fact are supported by competent evidence, and (2) whether the conclusions of law are supported by the findings. Guy v. Burlington Industries, 74 N.C. App. 685, 329 S.E.2d 685 (1985).
Dr. Robert Wilfong, qualified as an expert in neurosurgery, testified that plaintiff's neurological examination was normal and that there was no permanent disability to the brain. This is competent evidence sufficient to support the finding that plaintiff has not suffered disabling, permanent brain injury.
Plaintiff also contends that competent, credible evidence in the form of testimony by Dr. Antonio Puente was prejudicially excluded from consideration.
The case was heard before Deputy Commissioner Shuping. However, the testimony of Dr. Puente was heard by Deputy Commissioner Morgan Scott. Dr. Puente testified extensively but portions of his testimony were objected to by defendant and sustained by Deputy Commissioner Scott. After sustaining an objection to Dr. Puente's qualifications to render an opinion, Deputy Commissioner Scott stated, "It's not my case, however, and I will defer to what Deputy Commissioner Shuping wants to do with the response, and I will allow him to answer for the record." Although sustaining defendant's objections during the course of Dr. Puente's testimony, Deputy Commissioner Scott allowed Dr. Puente to testify for the record so that Deputy Commissioner Shuping could determine whether to admit the testimony.
It is clear that Deputy Commissioner Shuping considered the testimony and found it to be incompetent and incredible. Deputy Commissioner Shuping found that "to the extent that the testimony of Dr. Puente, which if believed, would tend to establish that he has [such an injury], said testimony is neither accepted as competent nor credible to do so but rather, is in direct conflict with the competent and credible medical testimony of Dr. Wilfong that no such permanent brain injury resulted." Deputy Commissioner Shuping erred in concluding that Dr. Puente's testimony was "incompetent." It reasonably could be argued that the Deputy Commissioner clearly considered this testimony, found it to be incredible, and simply chose not to believe it. However, since it was error to characterize Dr. Puente's testimony as incompetent, we remand the cause to the Industrial Commission for consideration of the credibility of said testimony.
The Industrial Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Mayo v. City of Washington, 51 N.C. App. 402, 276 S.E.2d 747 (1981). We express no opinion as to the credibility of Dr. Puente's testimony and leave that determination to the Commission.
Reversed and remanded.
Judge MARTIN concurs in the result.
Judge PHILLIPS dissents.