1. Workers' Compensation--disability--evidence and findings
Competent evidence supported the Industrial Commission's
findings of fact in a workers' compensation action where the
Commission, in the rightful exercise of its discretion, gave more
credibility to the opinions of three doctors who testified that
plaintiff suffered from a thoracolumbar strain, not fibromyalgia,
and was able to return to work; the finding that plaintiff has
not undergone a change of condition was supported by competent
evidence because the only evidence of a change of condition was
another doctor's testimony that plaintiff now has fibromyalgia;
and the finding that plaintiff's job search was not reasonable
was supported by competent evidence in that plaintiff testified
that he had gone to defendant-employer's job site without
identifying himself and been told that defendant was not hiring,
and had applied for work at about a dozen businesses during an
eight-day span.
2. Workers' Compensation--disability--position refused--brief
job search
The facts supported the Industrial Commission's conclusions
and justified its award where a Form 21 agreement was approved,
but the presumption of disability was rebutted because plaintiff
was offered a light duty position which he unjustifiably refused,
one doctor's opinion that plaintiff was unable to work was given
less credibility by the Commission than the opinion of three
other doctors, and plaintiff's unannounced visit to defendant's
job site and an eight-day job search in a two-year period did not
serve to meet his burden of supporting his claim of continuing
disability. The burden of proof never shifted back to defendant.
3. Workers' Compensation--testimony--consideration by
Commission--no findings
The Industrial Commission did not err in a workers'
compensation proceeding where plaintiff contended that the
Commission disregarded the testimony of three of his witnesses,
but there was no proof that the Commission disregarded the
testimony; rather, the Commission considered and evaluated the
testimony and chose not to make exhaustive findings and mention
the testimony in its opinion and award. It is not necessary for
the Commission to make exhaustive findings as to each statement
by a witness or to make findings rejecting specific evidence that
may be contrary to the evidence accepted by the Commission.
Here, plaintiff's witnesses were not physicians and the
Commission had before it the opinions and diagnoses of four
doctors, only one of which supported the claims of plaintiff's
witnesses.
4. Workers' Compensation--additional evidence--repetitive
The Industrial Commission did not abuse its discretion in a
workers' compensation action by denying plaintiff's motion for
the taking of additional evidence where plaintiff sought to admit
medical records and a diagnosis from another physician which
would have been repetitive, unnecessary, cumulative, and not
likely to produce a different result.
Beaver, Holt, Richardson, Sternlicht, Burge & Glazier, P.A.,
by Vickie L. Burge, for plaintiff-appellant.
Young Moore and Henderson P.A., by Jeffrey T. Linder, for
defendant-appellees.
HUNTER, Judge.
William C. Allen (“plaintiff”) appeals from an opinion and
award of the North Carolina Industrial Commission (“Commission”).
In its opinion and award, the Commission ordered Roberts Electrical
Contractors (“defendant-employer”) and Transportation Insurance
Company (collectively “defendants”) to pay plaintiff temporary
total disability compensation for three weeks, permanent partial
disability compensation for nine weeks -- but not additional
compensation for a continuing disability as contended by plaintiff,
and to provide only conservative medical treatment that is limited
to the use of non-addictive pain medications. The opinion and
award also denied plaintiff's request for approval of a change in
his treating physician and his motion for taking of additional
evidence. On appeal, plaintiff assigns error to (1) the
Commission's findings of fact, conclusions of law, and award, (2)
the Commission's alleged disregard of the testimony of three of his
witnesses, and (3) the Commission's alleged failure to exercisediscretion, or alleged manifest abuse of discretion, in denying his
motion for taking of additional evidence. After a careful review
of the record and briefs, the opinion and award of the Commission
is affirmed.
On 19 May 1994, plaintiff was employed by defendant-employer
as an electrician. On that date, plaintiff, in the course of his
employment, was walking backwards directing a backhoe driver when
he stepped into a ditch, fell, and injured his back and arm.
Subsequently, the parties entered into a Form 21 agreement for
disability compensation, which was approved on 29 August 1994.
Plaintiff was seen by Dr. Bruce P. Jaufmann who diagnosed
plaintiff as having sustained a thoracolumbar strain. On 9
September 1994, Dr. Jaufmann released plaintiff to return to light
duty work for up to six weeks and full duty work after six weeks.
Plaintiff sought a second medical opinion regarding his injury, and
upon the advice of counsel, he visited Dr. Glenn A. McCain. Dr.
McCain diagnosed plaintiff as having sustained chronic pain
syndrome, and he recommended plaintiff “be afforded the opportunity
of enrollment in a rehabilitation program aimed at restoring his
function . . . .”
Defendant-employer offered plaintiff a light duty position to
begin on 7 October 1994, but plaintiff never returned to work. A
Form 24 informal hearing was held, and plaintiff's benefits were
terminated as of 7 October 1994. Plaintiff requested a hearing,
which was held on 20 April 1995 before Deputy Commissioner Douglas
E. Berger. On 29 September 1995, Deputy Commissioner Berger filed
his opinion and award affirming the Form 24 application to stop
temporary total disability payments to plaintiff and concluding
that plaintiff's refusal to accept light duty work was notjustified. In his decision, Deputy Commissioner Berger found that
plaintiff had sustained chronic pain syndrome, and he ordered
plaintiff to participate in an inpatient chronic pain management
program selected and paid for by defendants. Plaintiff did not
appeal this first opinion and award.
Initially, defendants provided plaintiff the opportunity to
participate in an outpatient pain management program at Cape Fear
Valley Medical Center in Fayetteville, North Carolina. However,
plaintiff refused to participate in this program because it did not
involve inpatient treatment as ordered by Deputy Commissioner
Berger. After a conference call with Deputy Commissioner Berger,
the parties agreed to send plaintiff to the Spine Center at Bowman
Gray Baptist Hospital in Winston-Salem, North Carolina. At the
Spine Center, plaintiff attended a three-week functional
restoration program from 8 July to 26 July 1996. Upon completion
of the program, Dr. Walter Davis diagnosed plaintiff as having a
partial permanent impairment rating of three percent (3%) for
thoracolumbar strain, and he released plaintiff to return to work
in a medium physical demand classification with a lifting
restriction.
Upon discharge, plaintiff went to a job site of defendant-
employer unannounced and asked a person, whom he believed to be the
foreman, if defendant-employer was hiring. The person responded
no, and plaintiff departed without identifying himself. In an
eight-day span from 13 August to 20 August 1996, plaintiff also
applied for work with about a dozen businesses of varying types,
but he did not obtain employment.
On plaintiff's attorney's request, plaintiff was re-examined
by Dr. McCain on or about 19 August 1996. At that time, Dr. McCainchanged his initial diagnosis of plaintiff, and he diagnosed
plaintiff as having fibromyalgia and concluded that plaintiff was
unable to return to work in any occupation. In a letter to
plaintiff's attorney, Dr. McCain contradicted his earlier diagnosis
and recommendation, and reported that he “would not have
recommended a Functional Restoration Program for [plaintiff] since
there is no available medical evidence that this kind of an
approach really works for fibromyalgia.” Later in 1996, plaintiff
relocated to the state of Maryland.
Plaintiff requested a second hearing with the Commission
seeking additional benefits and approval of a change in treating
physician to Dr. McCain. A second hearing before Deputy
Commissioner Berger was held on 18 November 1997. Deputy
Commissioner Berger ordered plaintiff to undergo an independent
medical examination by Dr. Scott S. Sanitate. During his medical
examination, Dr. Sanitate performed a series of tests on plaintiff.
From the tests, Dr. Sanitate concluded that plaintiff did not
suffer from fibromyalgia and plaintiff's reports of pain were not
a reliable source for determining the extent of his injury.
On 30 September 1998, Deputy Commissioner Berger filed his
second opinion and award in this matter. In this decision, he
found that plaintiff did not have fibromyalgia and plaintiff was
intentionally exaggerating the extent of his pain. Moreover,
Deputy Commissioner Berger gave greater weight to the opinions of
Dr. Sanitate than to those of Dr. McCain. Additionally, Deputy
Commissioner Berger concluded that plaintiff failed to meet his
burden of proof showing that he had been disabled for any time
period following his termination of benefits on 7 October 1994,
except for the three-week period in 1996 that he was at the SpineCenter. Consequently, Deputy Commissioner Berger denied
plaintiff's request that Dr. McCain be approved as his treating
physician, and he ordered defendants to pay plaintiff temporary
disability compensation at a rate of $240.00 for the three-week
period that he was at the Spine Center, permanent partial
disability compensation at a rate of $240.00 for nine weeks for the
permanent partial disability to his back, and for conservative
treatment that is limited to the use of non-addictive pain
medications.
Plaintiff appealed Deputy Commissioner Berger's second opinion
and award to the Full Commission. On or about 12 March 1999,
plaintiff also filed a motion for taking of additional evidence
seeking the admission of medical records and diagnosis from
plaintiff's Maryland physician. The Full Commission reviewed the
matter and filed its opinion and award, with detailed findings and
conclusions, on 24 January 2000. In its decision, the Full
Commission affirmed the second opinion and award of Deputy
Commissioner Berger and denied plaintiff's motion for taking of
additional evidence. Significantly in its opinion and award, the
Commission concluded:
Plaintiff did not appeal Deputy Commissioner
Berger's Opinion and Award, filed 29 September
1995, affirming the Form 24 Application to
Terminate or Suspend Payment of Compensation
decision, which was filed 23 November 1994.
Plaintiff has the burden of proving that he
has been disabled for any time period
following this termination of benefits on 7
October 1994. Plaintiff has failed to show by
the greater weight of the evidence that he was
disabled during the time period beginning 7
October 1994 to the date of the hearing before
the Deputy Commissioner, with the exception of
the time period that plaintiff was in the
program at the Bowman Gray Baptist Hospital
Spine Center. . . .
Plaintiff now appeals to this Court.
[1]First, plaintiff assigns error to the Commission's
findings of fact, conclusions of law, and award. After a careful
review of the record, we find that competent evidence supports the
Commission's findings, and the Commission's findings support its
conclusions and award. Therefore, we reject this assignment of
error.
“The standard of review for an appeal from an opinion and
award of the Industrial Commission is limited to a determination of
(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).
Furthermore, “[t]he facts found by the Commission are conclusive
upon appeal to this Court when they are supported by competent
evidence, even when there is evidence to support contrary
findings.” Pittman v. International Paper Co., 132 N.C. App. 151,
156, 510 S.E.2d 705, 709, disc. review denied, 350 N.C. 310, 534
S.E.2d 596, aff'd, 351 N.C. 42, 519 S.E.2d 524 (1999). In other
words, “'[t]he findings of fact by the Industrial Commission are
conclusive on appeal if supported by any competent evidence.'”
Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998),
reh'g denied, 350 N.C. 108, 532 S.E.2d 522 (1999) (quoting
Gallimore v. Marilyn's Shoes, 292 N.C. 399, 402, 233 S.E.2d 529,
531 (1977)).
Specifically, plaintiff challenges the Commission's findings:
(1) giving greater weight to the opinions of Dr. Sanitate thanthose of Dr. McCain, (2) that Dr. McCain recommended a program
aimed at functional restoration, and that plaintiff (3) did not
have fibromyalgia, (4) intentionally exaggerated his pain, (5) is
physically able to return to work, (6) reached maximum medical
improvement with regards to his back and arm injury as of the date
of his release from the Spine Center in 1996, (7) only needed
conservative care that includes non-addictive pain medications, (8)
had not undergone a change of condition since his first examination
by Dr. McCain in 1994, and (9) had not conducted a reasonable job
search since being released from the Spine Center.
We stress that “'[t]he Commission is the sole judge of the
credibility of the witnesses and the weight to be given their
testimony.'” Dolbow v. Holland Industrial, 64 N.C. App. 695, 697,
308 S.E.2d 335, 336 (1983) (quoting Anderson v. Construction Co.,
265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965)). “Thus, the
Commission may assign more weight and credibility to certain
testimony than other.” Dolbow, 64 N.C. App. at 697, 308 S.E.2d at
336.
At bar, three doctors, Drs. Jaufmann, Davis, and Sanitate (the
independent examiner), opined that plaintiff suffered from a
thoracolumbar strain, not fibromyalgia, and was able to return to
work. Furthermore, after performing a series of tests on
plaintiff, Dr. Sanitate found no anatomical relationship between
plaintiff's reports of pain and his performance on these tests.
Consequently, Dr. Sanitate concluded that plaintiff had no organic
source for his pain and was not being truthful regarding his pain.
While there is contrary evidence to the Commission's findings
regarding these doctors' opinions and diagnosis, primarily in theform of Dr. McCain's opinions and diagnosis, the Commission, in a
rightful exercise of its discretion, gave more weight and
credibility to the opinions of Drs. Jauffman, Davis, and Sanitate.
As to Dr. McCain's recommendation that plaintiff participate in a
functional restoration program, evidence of this recommendation is
found in the record in a letter that Dr. McCain wrote dated 15
December 1994. Thus, competent evidence in the record supports the
Commission's findings giving more weight to the opinions of Dr.
Sanitate, that Dr. McCain recommended a program aimed at functional
restoration, plaintiff did not have fibromyalgia, plaintiff
intentionally exaggerated his pain, plaintiff reached maximum
medical improvement as of the date of his release from the Spine
Center, and plaintiff only needed conservative care that included
non-addictive pain medications.
Despite the fact that the Commission found that plaintiff had
not undergone a change of condition since his first examination by
Dr. McCain in 1994, plaintiff argues that he did undergo a change
of condition pursuant to N.C. Gen. Stat. § 97-47. Importantly, a
“'change in condition' can consist of either a change in the
claimant's physical condition that impacts his earning capacity, a
change in the claimant's earning capacity even though claimant's
physical condition remains unchanged, or a change in the degree of
disability even though claimant's physical condition remains
unchanged.” Blair v. American Television & Communications Corp.,
124 N.C. App. 420, 423, 477 S.E.2d 190, 192 (1996) (citations
omitted). “In all instances the burden is on the party seeking the
modification to prove the existence of the new condition and that
it is causally related to the injury that is the basis of the awardthe party seeks to modify.” Id.
Significantly, “[a] mere change of the doctor's opinion with
respect to claimant's preexisting condition does not constitute a
change of condition required by G.S. 97-47.” Shuler v. Talon Div.
of Textron, 30 N.C. App. 570, 577, 227 S.E.2d 627, 631 (1976),
overruled on other grounds, Hyler v. GTE Products Co., 333 N.C.
258, 425 S.E.2d 698 (1993). The only evidence that plaintiff
presents to show a change of condition is the change of his
doctor's (Dr. McCain) opinion that plaintiff had chronic pain
syndrome and now has fibromyalgia. Therefore, competent evidence
in the record supports the Commission's finding that plaintiff had
not undergone a change of condition.
As to the Commission's finding that plaintiff had not
conducted a reasonable job search since being released from the
Spine Center in 1996, the Commission only had the testimony of
plaintiff as to his actual job search. Plaintiff admits that
during this job search, he continued to utilize his cane. Again,
competent evidence supports the Commission's finding that
plaintiff's job search, consisting of his going to defendant-
employer's job site unannounced seeking employment and an eight-day
period in a span of two years, was not a reasonable job search.
Therefore, we hold that competent evidence supports the entirety of
the Commission's findings of fact, and thus, those findings are
conclusive on appeal.
[2]Next, plaintiff challenges the conclusions of law made by
the Commission. In particular, plaintiff argues that the
Commission erred (1) in concluding that he failed to meet his
burden of proof showing that he had been disabled for any timeperiod following his termination of benefits on 7 October 1994, and
(2) in failing to shift the burden of proof to defendant-employer
after he allegedly satisfied his burden of proving a continuing
disability. Again, we disagree with plaintiff.
As mentioned supra, the Commission concluded:
Plaintiff did not appeal Deputy Commissioner
Berger's Opinion and Award, filed 29 September
1995, affirming the Form 24 Application to
Terminate or Suspend Payment of Compensation
decision, which was filed 23 November 1994.
Plaintiff has the burden of proving that he
has been disabled for any time period
following this termination of benefits on 7
October 1994. . . .
Therefore, as plaintiff did not appeal the first opinion and award
of Deputy Commissioner Berger, the burden of proving a continuing
disability shifted to plaintiff. See Brown v. S & N
Communications, Inc., 124 N.C. App. 320, 331, 477 S.E.2d 197, 203
(1996).
“The Industrial Commission's conclusions of law are reviewable
de novo by this Court.” Lewis v. Sonoco Prods. Co., 137 N.C. App.
61, 68, 526 S.E.2d 671, 675 (2000). We note that the approval of
a Form 21 agreement establishes a presumption that the employee is
disabled, and the disability is considered to continue until the
employer shows that suitable jobs are available and that plaintiff
is capable of getting one of those jobs. See McCoy v. Oxford
Janitorial Service Co., 122 N.C. App. 730, 732-33, 471 S.E.2d 662,
664 (1996). However, if an employer presents evidence showing an
employee has unjustifiably refused suitable employment, the
presumption of disability is rebutted. Franklin v. Broyhill
Furniture Industries, 123 N.C. App. 200, 206, 472 S.E.2d 382, 386(1996); N.C. Gen. Stat. § 97-32. “If the employer offers
sufficient evidence to rebut the continuing presumption of
disability, . . . [t]he burden then switches back to the employee
to offer evidence in support of a continuing disability . . . .”
Brown, 124 N.C. App. 320, 331, 477 S.E.2d 197, 203. “The employee
can prove a continuing total disability by showing either that no
jobs are available, no suitable jobs are available, or that he has
unsuccessfully sought employment with the employer.” Id.
Here, a Form 21 agreement for disability compensation was
approved on 29 August 1994. The approval of the Form 21 agreement
gave rise to the presumption that plaintiff was disabled and had a
continuing disability. At the first hearing, defendant-employer
presented evidence that plaintiff was offered a light duty position
to begin on 7 October 1994, and plaintiff unjustifiably refused the
position. Thus, the deputy commissioner entered an order affirming
the Form 24 application to stop temporary total disability payments
to plaintiff. Since defendant-employer offered sufficient evidence
to rebut the continuing presumption of disability, the burden
switched back to plaintiff at the second hearing to offer evidence
supporting his claim of a continuing disability. Dr. McCain's
change of opinion, plaintiff's unannounced visit to defendant-
employer's job site seeking employment, and an eight-day job search
in a period of two years do not serve to meet his burden.
Plaintiff argues that he “satisfied his burden of disability
by showing his incapacity to earn wages during his three week
treatment at the Spine Center.” We find plaintiff's claim flawed.
Important to note, plaintiff never appealed the first opinion and
award of the deputy commissioner. Thus, to prove a continuingdisability after his release from the Spine Center, plaintiff
“ha[d] the burden of proving both the existence of his disability
and its degree.” Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595,
290 S.E.2d 682, 683 (1982). The only evidence that shows plaintiff
may have suffered from a continuing disability and was unable to
return to work in any capacity after his release from the Spine
Center came in the form of the opinion and diagnosis of Dr. McCain
-- who was contradicting his earlier opinion and diagnosis.
Nevertheless, the Commission gave more credibility and weight to
the opinions and diagnoses of Drs. Jaufmann, Davis, and Sanitate --
who concluded that plaintiff could return to work. From the
evidence before us, it is clear that plaintiff never proved the
existence and degree of any continuing disability after the
termination of his benefits on 7 October 1994, or after his release
from the Spine Center in 1996. Therefore, the burden of proof
never shifted back to defendant-employer. Hence, we find that the
Commission's conclusions of law in their entirety are supported by
the findings of fact.
Finally, “[w]hen called upon to review the findings of fact,
conclusions of law, and awards of the [Commission] in compensation
cases, the courts determine as a matter of law whether the facts
found support the Commission's conclusions, and whether they
justify the awards.” McRae v. Wall, 260 N.C. 576, 578, 133 S.E.2d
220, 222 (1963). Here, we find that as a matter of law the facts
support the Commission's conclusions and justify the award. Thus,
we affirm the Commission's findings of fact, conclusions of law,
and award.
[3]Next, plaintiff assigns error to the Commission's allegeddisregard of the testimony of three of his witnesses.
At the
hearing, the Commission heard plaintiff's sister and two brothers
testify as to their observations of plaintiff's pain and
inactivity. However, the Commission did not mention the testimony
in its opinion and award. After a review of this issue, we
overrule this assignment.
We note that, “[i]t is not, however, necessary that the Full
Commission make exhaustive findings as to each statement made by
any given witness or make findings rejecting specific evidence that
may be contrary to the evidence accepted by the Full Commission.”
Bryant v. Weyerhaeuser Co., 130 N.C. App. 135, 139, 502 S.E.2d 58,
62 (1998). At bar, plaintiff's three siblings testified before the
Commission at the hearing, and the testimony is included in the
record. There is no proof that the Commission disregarded this
testimony; on the contrary, the Commission, in a proper exercise of
its discretion, chose not to make exhaustive findings regarding the
testimony of these lay witnesses who were not medical experts.
Plaintiff relies on this Court's decision in Lineback v. Wake
County Board of Commissioners, 126 N.C. App. 678, 680, 486 S.E.2d
252, 254 (1997), for the supposition that “before finding the
facts, the Industrial Commission must consider and evaluate all of
the evidence.” Lineback is clearly distinguishable from the case
sub judice. Significantly in Lineback, the Commission failed to
consider the testimony of the plaintiff's orthopaedic surgeon. See
id. Here, plaintiff's siblings were not treating physicians; they
were lay witnesses, related to plaintiff, who were not competent to
testify as to plaintiff's medical condition or any disability hemay have. See Click v. Freight Carriers, 300 N.C. 164, 265 S.E.2d
389 (1980). The Commission considered and evaluated the testimony
at issue and chose not to make exhaustive findings and mention the
testimony in its opinion and award. Additionally, the Commission
had before it the opinions and diagnoses of four doctors, one of
which supported plaintiff's witnesses' claims. Therefore, we
reject plaintiff's second assignment of error.
[4]Finally, plaintiff assigns error to the Commission's
alleged failure to exercise discretion, or alleged manifest abuse
of discretion, in denying his motion for taking of additional
evidence. Plaintiff filed a motion for taking of additional
evidence seeking the admission of medical records and diagnosis
from plaintiff's Maryland physician, and the Commission denied the
motion. After reviewing this argument, we affirm the Commission's
denial of plaintiff's motion.
A plaintiff does not have a substantial right to require the
Commission to hear additional evidence, and the duty to do so only
applies if good ground is shown. See Eaton v. Klopman Mills, Inc.,
2 N.C. App. 363, 163 S.E.2d 17 (1968). Furthermore, plaintiff
concedes that, “[t]he question of whether to reopen a case for the
taking of additional evidence is addressed to the sound discretion
of the Commission, and its decision is not reviewable on appeal in
the absence of a manifest abuse of that discretion.” Pickrell v.
Motor Convoy, Inc., 82 N.C. App. 238, 243-44, 346 S.E.2d 164, 168
(1986), rev'd on other grounds, 322 N.C. 363, 368 S.E.2d 582
(1988).
Where, as here, “an issue has been fairly litigated, with
proof offered by both parties upon an issue, a claimant should notbe entitled to a further hearing to introduce cumulative evidence,
unless its character or force be such that it would be likely to
produce a different result.” Hall v. Chevrolet, Co., 263 N.C. 569,
577, 139 S.E.2d 857, 862 (1965). This Court in the past has held
that the Commission did not abuse its discretion in denying a
plaintiff's motion to present newly discovered evidence consisting
of physician's evaluations since such conclusions by such physician
were no different from conclusions of other physicians which were
in evidence. See Thompson v. Burlington Industries, 59 N.C. App.
539, 543, 297 S.E.2d 122, 125 (1982). At bar, evidence of Dr.
McCain's diagnosis of plaintiff as having fibromyalgia, plaintiff's
alleged pain, and plaintiff's alleged inability to work due to pain
was already before the Commission. Hence, the admission of the
testimony of plaintiff's Maryland physician would be repetitive,
unnecessary, cumulative evidence and would not likely produce a
different result. Therefore, we hold that plaintiff did not show
good grounds for the Commission to hear additional evidence, and
the Commission did not abuse its discretion or commit a manifest
abuse of discretion. Additionally, the due administration of
justice did not require the taking of additional evidence in this
matter. See Tindall v. Furniture Co., 216 N.C. 306, 311, 4 S.E.2d
894, 897 (1939). Accordingly, we reject this assignment.
Thus, the Commission's opinion and award is
Affirmed.
Judges WALKER and CAMPBELL concur.
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