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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
ROY RONALD HENSLEY, Employee, Plaintiff, v. INDUSTRIAL
OVERFLOW, Employer, and PMA INSURANCE GROUP, Carrier,
Filed: 21 September 2004
1. Workers' Compensation_total disability_outside income_skills not transferable
The Industrial Commission did not err by concluding that a workers' compensation
plaintiff was totally rather than partially disabled, even though he earned income from a tobacco
allotment and a mobile home park. There was evidence to support findings that plaintiff was
not actively involved in operating the tobacco allotment and that the skills he used to set up and
run the mobile home park were not transferable. Findings supported by competent evidence
must stand even if there is evidence to the contrary.
2. Workers' Compensation_findings showing that evidence considered_sufficient
The Industrial Commission did not err in a workers' compensation case by not giving a
reason for disregarding the opinion of plaintiff's treating physician and not making detailed
findings about defendant's surveillance videotape. The Commission made findings about the
doctor and the tape which showed that it considered all of the evidence; nothing more was
Appeal by defendants from Opinion and Award entered 5 May 2003
by the North Carolina Industrial Commission. Heard in the Court of
28 April 2004
David Gantt, for plaintiff-appellee.
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Neil P.
Andrews and Nadia Z. Schroth, for defendants-appellants.
In this appeal from
an Opinion and Award of the North Carolina
Industrial Commission, defendants
Industrial Maintenance Overflow
("Industrial") and Industrial's insurance carrier, the PMAInsurance Group, challenge the Commission's conclusion that
plaintiff Roy Ronald Hensley is totally disabled. Defendants
contend Mr. Hensley's income from a tobacco allotment and ownership
of a mobile home park established that he is only partially
disabled. Because the Commission made the findings of fact
required by Lanning v. Fieldcrest-Cannon, Inc., 352 N.C. 98, 107-
08, 530 S.E.2d 54, 61 (2000) and because those findings are
supported by competent evidence, we affirm the Commission's Opinion
At the time of the hearing, Mr. Hensley was 59 years old and
had a twelfth-grade education. He worked for Industrial as an
for 20 years
up cranes and rigging for the
installation of telephone towers and equipment.
On 30 October
1998, Mr. Hensley was injured at work
when a 20-ton dolly "broke
loose," struck him in the left knee, and smashed him against a
wall, hurting both knees.
Mr. Hensley went to St. Joseph's Urgent
Care the next day and was immediately referred to Blue Ridge Bone
and Joint Clinic, an orthopedic practice, for further evaluation.
Mr. Hensley was diagnosed with an ACL tear to his left knee,
and on 8 December 1998 underwent surgery to repair the knee.
Defendants accepted the claim pursuant to a Form 60 and paid
medical expenses and compensation benefits. After returning to
work for four weeks, Mr. Hensley sought medical treatment for painin his right knee. A 3 March 1999 MRI revealed a torn medial
meniscus in Mr. Hensley's right knee, and Dr. David Cappiello
performed surgery on 17 March 1999 to repair it.
In April 1999, Mr. Hensley returned to light duty work with
Industrial. Industrial did not require him to perform any climbing
or other duties that exceeded his existing restrictions, and
plaintiff was usually able to handle his responsibilities in this
light duty position. The Commission found that the position was an
accommodation not available to the general public. Defendants
dispute this finding.
On 10 November 1999, Mr. Hensley resigned from his light-duty
job after he was accused of stealing time by improperly filling out
time cards. Beginning on 22 November 1999, Mr. Hensley worked
part-time for Rogers and Son Welding for several weeks. Jerry
Rogers, who had previously worked with Mr. Hensley, testified that
Mr. Hensley could barely climb around the trucks and onto ladders
and had considerable problems walking and working on concrete. Mr.
Rogers noticed Mr. Hensley limping when he walked.
Mr. Hensley's right knee continued to bother him during his
employment with Rogers. On 18 January 2000, Dr. Cappiello
performed a total knee replacement of Mr. Hensley's right knee. On
18 December 2000, Dr. Cappiello reported that "patient appears to
be doing better since his last visit" and stated, "I would like him
to progress his activities as tolerated[.]" In handwriting at thebottom of the note appeared:
Please addendum this note to say[:]
Pt. was released to return to full duty in his
July visit. He has resigned from his prev job
but has been running his mobile home park. Pt
can continue to work.
Otherwise they say they have to continue his
w/c pay till he is fully released.
(Emphasis original) This request was apparently prompted, as the
Commission found, by an inquiry from the medical case manager in
this matter. In a 23 January 2001 addendum, Dr. Cappiello wrote:
"The patient was released to resume full duty at work in July,
2000. I have been informed that he has resigned from his previous
job, but is now running a mobile home park. Therefore, he is
working in some capacity at this time. He is now discharged from
treatment with 30 percent permanent partial disability of his right
lower extremity[.]" Dr. Cappiello also imposed a permanent
restriction of no climbing.
Dr. William L. Griffin, an orthopedic specialist, provided a
second opinion. Dr. Griffin assigned Mr. Hensley a 30% permanent
partial disability to his lower right extremity and a 40% permanent
partial disability to his left knee. Dr. Griffin indicated that
Mr. Hensley is limited to sedentary work with no lifting over 30
pounds; no repetitive lifting; no stooping, squatting, kneeling or
climbing; and no standing or walking for prolonged periods. Dr.Griffin stated that he believes Mr. Hensley will require
replacement of his left knee within five years and that both Mr.
Hensley's right and left knee problems resulted from his
Several witnesses, who had known Mr. Hensley for many years,
testified about substantial changes in Mr. Hensley's physical
capabilities following his injury, including his limited ability to
walk. Terry Sprouse, a contractor who had known Mr. Hensley for 25
years and observed him on job sites both before and after his
injury, testified that he would not be willing to employ Mr.
Hensley in his present condition because he would likely injure
himself further or cause accidents to other workers.
The Commission found, based on this evidence and Mr. Hensley's
testimony, that Mr. Hensley cannot stand or walk for any sustained
period of time and that he cannot climb or sleep for more than a
few hours at a time because of his continuous knee pain. In
addition, it found that Mr. Hensley has poor balance and that he
remains off his feet and resting more than half of the day.
Since leaving work with Industrial, Mr. Hensley's income has
been limited to his wages from Rogers and Son welding, income from
his mobile home park, and income from his tobacco allotment. Mr.
Hensley began developing a mobile home park in 1992 as a means of
securing retirement income. The first mobile home was placed in
the park in June 1999, approximately eight months after Mr.Hensley's injury. Mr. Hensley's activities in running the park
have primarily consisted of collecting rent; he has had others
perform most of the physical labor involved in the park's
development and maintenance. Mr. Hensley's income tax returns show
he received $5,572.00 in gross rental income in 1999 and $25,289.00
in gross rental income in 2000. Mr. Hensley, who also owns a
tobacco allotment, had previously raised tobacco himself, but after
his injury, he leased the allotment to others.
Mr. Hensley participated in job search activities with
defendants' vocational counselor. He worked with Manpower and
pursued all other leads provided by the counselor without success
in finding full or part-time employment. Mr. Hensley also
completed 15 to 20 job applications on his own without obtaining
work. Although N.C. Vocational Rehabilitation was consulted, the
only job possibility that it suggested
was piecework at a sheltered
workshop, earning $15.00 per day.
On 11 March 2002, Randy Adams, M.Ed., a Certified Vocational
Evaluator, evaluated Mr. Hensley and reported:
If Mr. Hensley's complaints of pain are
considered, it is my vocational opinion that
he would not be able to perform any
substantial gainful activity as it may be
found in the local, state or national economy.
He would be considered totally disabled from
Mr. Adams further testified that Mr. Hensley did not have any
skills from the management of his mobile home park that would betransferrable to other types of work and that he was "relegated to
sedentary type work." Mr. Adams further testified that Mr.
Hensley's verbal and math skills, as well as his digital dexterity
(in the bottom 10th percentile), rendered him unable to perform
most types of sedentary work.
On 5 March 2001, plaintiff filed a Form 90, reporting that he
had received earnings from work during the period between 30
October 1998 and 31 December 2000
. Defendants filed a Form 24
seeking to terminate Mr. Hensley's ongoing wage compensation and
seeking a credit for overpayment of wage compensation. On 4
September 2001, following a Form 24 telephonic informal hearing,
Special Deputy Commissioner Myra L. Griffin filed an order
disapproving defendant's application. Defendants requested a
On 18 September 2002, Deputy Commissioner W. Bain Jones, Jr.
filed an Opinion and Award, concluding that Mr. Hensley was totally
disabled as a result of a compensable injury to both of his knees
on 30 October 1998 , that defendants had not met their burden as to
termination of plaintiff's benefits, and that plaintiff was
entitled to total disability benefits until further order of the
Commission. Defendants appealed to the Full Commission, but on 5
May 2003 the Full Commission affirmed, with modifications, Deputy
Commissioner Jones' Opinion and Award. Defendants filed a timely
notice of appeal to this Court from the Full Commission's Opinionand Award.
Standard of Review
In reviewing an Opinion and Award from the Industrial
Commission, this Court is bound by the Commission's findings of
fact when they are supported by any competent evidence, but legal
conclusions are fully reviewable. Lanning v. Fieldcrest-Cannon,
352 N.C. 98, 106, 530 S.E.2d 54, 60 (2000). Determinations
of the weight and credibility of evidence are for the Commission;
this Court simply determines whether the record contains any
evidence tending to support the finding. Anderson v. Lincoln
Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965).
Findings of fact not assigned as error are conclusively established
on appeal. Robertson v. Hagood Homes, Inc., 160 N.C. App. 137,
140, 584 S.E.2d 871, 873 (2003).
 We first consider defendants' contention that the
Commission erred in concluding that Mr. Hensley is totally disabled
under N.C. Gen. Stat. § 97-29 (2003), as opposed to partially
N.C. Gen. Stat. §
97-30 (2003), given the income
that he receives from his ownership of a tobacco allotment and a
mobile home park. The Supreme Court in Lanning
set forth the test
to be applied in determining whether an employee's ownership of a
business supports a finding of earning capacity:
[T]he test for determining whether the self-employed injured employee has wage-earning
capacity is that the employee (i) be actively
involved in the day to day operation of the
business and (ii) utilize skills which would
enable the employee to be employable in the
competitive market place notwithstanding the
employee's physical limitations, age,
education and experience. In the instant
case, given plaintiff's exertional
limitations, education, and experience, would
he be hired to work in the competitive market
, 352 N.C. at 107, 530 S.E.2d at 61.
The Court stressed that questions regarding whether
plaintiff's self-employment involves marketable skills and whether
plaintiff is actively involved in the day-to-day operation of the
business "are questions of fact." Id
. at 108, 530 S.E.2d at 61.
, the Court held that this Court "usurped the fact-
finding role of the Commission" when it made these determinations.
The Supreme Court reversed this Court and directed that the
case be remanded to the Commission to make the necessary findings
of fact. See also Devlin v. Apple Gold, Inc.
, 153 N.C. App. 442,
448, 570 S.E.2d 257, 262 (2002) (finding that although the
Commission made adequate findings as to the employee's involvement
in day-to-day operation of his business, it
failed to make findings
as to whether the employee's management skills "are competitively
marketable in light of his physical limitations, age, education and
experience"). In this case, the Commission made the findings
required by Lanning
and, more recently, Devlin
. The issue onappeal is whether those findings are supported by any competent
With respect to the tobacco allotment, the Commission found
that "[a]fter working tobacco since 6th
grade, [Mr. Hensley] has
been forced by his compensable injuries to lease the allotment to
non-family members for the last two seasons. Prior to his knee
injuries, [Mr. Hensley] raised tobacco and put hay up, which he can
no longer do." Defendants did not assign error to this finding and
it is therefore binding on appeal. Koufman v. Koufman,
93, 97, 408 S.E.2d 729, 731 (1991). Because the Commission's
finding is binding, it conclusively establishes that Mr. Hensley
was not actively involved in the day-to-day operation of his
tobacco allotment. Lanning
352 N.C. at 108, 530 S.E.2d at 60. As
this finding of fact establishes that the tobacco allotment did not
meet one prong of the Lanning
two-prong test, we need not address
whether Mr. Hensley gained any marketable skills from his tobacco
allotment. Under Lanning
, the Commission's finding supports its
conclusion that Mr. Hensley's income from the tobacco allotment did
not establish wage-earning capacity.
The major focus of defendants' appeal is Mr. Hensley's
ownership of the mobile home park. With respect to the mobile home
park, the Commission found "that the skills shown by plaintiff in
setting up and running his mobile home park are not transferable to
a job for hire" and that "[t]here was no showing that there was ajob in the competitive environment consisting of the minimal things
that plaintiff did to collect income from [his trailer park and
(See footnote 1)
These findings are supported by the expert testimony of Mr.
Q: Okay. Would he have had any transferable
skills from that mobile home park work as
you understood it?
A: No. He was the owner of the mobile home
park by virtue that he, this is
investment for him. He saved his money
and he bought it. In other words, he's
kind of the self-appointed supervisor,
you know. In other words, there, there's
not any real skills that would've been
developed . . . from this job or sole
proprietorship that would be transferable
to a system performing other work.
Defendants urge that it can be "inferred from the record" that Mr.
Hensley's skills in owning the mobile home park would qualify him
for a number of jobs, such as trash collector or ticket collector,
but defendants offered no evidence to support this claim. Even if
defendants had, Mr. Adams' testimony would still comprise
sufficient evidence to support the Commission's finding that Mr.
Hensley's ownership of the mobile home park did not meet
the secondprong of the Lanning
Defendants argue that Mr. Adams' testimony is not competent
because he based his assessment on Dr. Griffin's opinions rather
than the opinions of Mr. Hensley's treating physician, Dr.
Cappiello. Defendants also urge that the Commission should not
have given greater weight to Dr. Griffin's opinion than Dr.
Cappiello. Defendants make no other argument regarding the
competency of Dr. Griffin and Mr. Adams.
Our Supreme Court has squarely held that only the Commission
may determine what weight to afford which evidence. Deese v.
Champion Int'l Corp.,
352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000)
("the [F]ull Commission is the sole judge of the weight and
credibility of the evidence"). The Commission was entitled to
choose, as it did, to give greater weight to Dr. Griffin than Dr.
Cappiello and it was entitled to determine that Mr. Adams'
testimony was credible even though he relied upon Dr. Griffin
rather than the treating physician. Johnson v. S. Tire Sales &
, __ N.C. __, __, 599 S.E.2d 508, 515 (2004) (Commission could
not be reversed for failing to give greater weight to the treating
physician's opinion); Drakeford v. Charlotte Express,
App. 432, 441, 581 S.E.2d 97, 103 (2003) (Commission entitled to
credit one doctor's testimony over a second doctor). Under our
standard of review, if there is competent evidence to support the
Commission's findings of fact, those findings must stand, even ifthere is evidence to the contrary. Dial v. Cozy Corner Rest.,
, 161 N.C. App. 694, 697, 589 S.E.2d 146, 149 (2003).
(See footnote 2)
 Defendants further challenge the Commission's conclusion
that Mr. Hensley is totally disabled on the grounds that the
Commission failed to make findings as to all the evidence
presented. Specifically, defendants contend that the Commission
erred (1) in giving no reason why it disregarded the opinion of the
treating physician and (2) in not making detailed findings about
defendants' surveillance videotape. We disagree.
Our Supreme Court has recently described the responsibilities
of the Industrial Commission:
The Commission, having exclusive original
jurisdiction over workers' compensation
proceedings, is required to hear the evidence
and file its award, "together with a statement
of findings of fact, rulings of law, and other
matters pertinent to the questions at issue."
N.C.G.S. § 97-84 (2003). While the Commission
is not required to make findings as to each
fact presented by the evidence, it must find
those crucial and specific facts upon which
the right to compensation depends so that a
reviewing court can determine on appeal
whether an adequate basis exists for the
__ N.C. at __, 599 S.E.2d at 511. As this Court has held,
the Commission need not make exhaustive findings as to eachstatement made by any given witness or make findings rejecting
Smith v. Beasley Enters., Inc.
, 148 N.C. App.
559, 562, 577 S.E.2d 902, 904 (2002).
Here, defendants do not point to any omission of "crucial and
specific facts upon which the right to compensation depends[.]"
__ N.C. at __, 599 S.E.2d at 511. Indeed, the Commission
made comprehensive findings of fact addressing each issue to be
Nor can defendants contend that the Commission failed to
indicate that it considered or weighed all the evidence. Beasley,
148 N.C. App. at 561, 577 S.E.2d at 904. The Commission made
specific findings about Dr. Cappiello and his treatment of Mr.
Hensley. It also included a finding of fact summarizing the
videotape surveillance report, including the dates and hours of the
surveillance and generally what was observed. These findings show
that it considered all the evidence. Nothing more was required.
352 N.C. at 116-17, 530 S.E.2d at 553 ("Requiring the
Commission to explain its credibility determinations . . . would be
inconsistent with our legal system's tradition of not requiring the
fact finder to explain why he or she believes one witness over
another or believes one piece of evidence is more credible than
another."); Bryant v. Weyerhaeuser Co.,
130 N.C. App. 135, 139, 502
S.E.2d 58, 62 (Commission not required to explain why it rejected
certain doctor's testimony), disc. review denied,
349 N.C. 228, 515
S.E.2d 700 (1998). Defendants asserted in oral argument that their remaining
contentions were dependent upon this Court's holding that the
Commission erred in concluding that Mr. Hensley is totally
disabled. Because of our disposition of this appeal, we need not
address those arguments.
Judges BRYANT and ELMORE
This latter finding was labeled a conclusion of law.
Findings of fact that are mislabeled conclusions of law are,
nonetheless, factual findings. Gainey v. N.C. Dep't of Justice,
121 N.C. App. 253, 257 n.1, 465 S.E.2d 36, 40 n.1 (1996) ("Although
denominated as a conclusion of law, we treat this conclusion as a
finding of fact because its determination does not involve the
application of legal principles.").
For the same reason, we find no merit to defendants'
contention that the Commission erroneously relied upon testimony by
Mr. Hensley's longtime friends. Only the Commission may decide
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