Appeal by plaintiff from opinion and award filed 19 February
2003 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 31 March 2004.
James A. Dickens for plaintiff-appellant.
Stiles Byrum & Horne, L.L.P., by Henry C. Byrum, Jr., for
defendant-appellees.
BRYANT, Judge.
Pauline Kelly (plaintiff) appeals an opinion and award of the
North Carolina Industrial Commission (the Commission) filed 19
February 2003, concluding plaintiff was not an incompetent adult at
the time of her accident and that the statute of limitation for
plaintiff to present her workers' compensation claim was not
tolled.
Procedural History
On 19 October 1999, plaintiff filed a Form 18 notice of
accident with her employer Advanced Home Care, Inc. (defendant) fora work-related injury she sustained to her lower back on or about
15 May 1995. Defendant filed a Form 19 employer's report of injury
on 20 July 2000, and subsequently denied plaintiff's claim on 25
August 2000. On 20 September 2000, plaintiff filed a Form 33
request for hearing, and defendant filed a Form 33R response to
request for hearing on 7 November 2000.
This matter came for hearing on 1 February 2002 before Deputy
Commissioner George T. Glenn, II. By opinion and award filed on 29
April 2002, the deputy commissioner concluded that the Industrial
Commission did not have jurisdiction to determine plaintiff's
competency at the time of her injury, and removed the claim from
the hearing docket until plaintiff's competency had been determined
by the clerk of superior court. Both plaintiff and defendant
appealed to the full Commission.
On 16 October 2002, this matter came before the full
Commission. By opinion and award filed 19 February 2003, the
Commission modified and reversed the opinion and award of the
deputy commissioner, concluding plaintiff was not incompetent at
the time of her injury, and her claim was barred by the statute of
limitations. Plaintiff appealed.
Facts
Plaintiff was born on 19 February 1956. In 1967, plaintiff
was diagnosed as “educable mentally retarded,” and was eventually
placed in special education classes. She graduated from high
school in 1974, although plaintiff did not know how to read, spell,
or do arithmetic. While in the tenth grade, plaintiff began work at Evergreen
Nursing Home. She worked at Evergreen for five years, then at
Carolina Nursing Home, and later in the dish room at Jonesbury
Elementary School. Plaintiff left her job at Jonesbury to work at
Greenhaven Nursing Home, and later returned to Evergreen. After
leaving Evergreen for the second time, plaintiff worked as a
private duty nurse with Medical Personnel Pool. In January 1994,
she began working for defendant as a certified nursing assistant
(CNA). Plaintiff allegedly sustained a work-related injury to her
lower back on or about 15 May 1995 while “[t]ransferring [a] male
patient from the bed to a wheelchair.”
_________________________
The issues are whether the Commission erred in failing to: (I)
conclude plaintiff was an incompetent adult at the time of her
injury; (II) address all of her assignments of error concerning the
deputy commissioner's rulings; and (III) grant plaintiff's motion
to take additional evidence.
I
First, plaintiff argues that the Commission erred in failing
to: (1) find as fact and conclude that plaintiff was an incompetent
adult as defined by N.C. Gen. Stat. § 35A-1101(7) at the time of
her injury, and (2) conclude that the statute of limitations
declared in N.C. Gen. Stat. § 97-24 was tolled until plaintiff was
informed of her right to file a workers' compensation claim in
1999.
Pursuant to N.C. Gen. Stat. § 97-24 of the Workers'Compensation Act, the right to compensation is barred if a claim is
not filed within two years of the injury. N.C.G.S. § 97-24 (2003).
However, “[n]o limitation of time provided in this Article for the
giving of notice or making claim under this Article shall run
against any person who is mentally incompetent.” N.C.G.S. § 97-50
(2003).
The Commission relied on N.C. Gen. Stat. § 35A-1101(7) in
making its determination that plaintiff was not an incompetent
adult at the time of the injury. N.C. Gen. Stat. § 35A-1101(7)
reads:
“Incompetent adult” means an adult or
emancipated minor who lacks sufficient
capacity to manage the adult's own affairs or
to make or communicate important decisions
concerning the adult's person, family, or
property whether the lack of capacity is due
to mental illness, mental retardation,
epilepsy, cerebral palsy, autism, inebriety,
senility, disease, injury, or similar cause or
condition.
N.C.G.S. § 35A-1101(7) (2003). Plaintiff contends the Commission
erred when it concluded plaintiff was not an incompetent adult, as
defined by N.C. Gen. Stat. § 35A-1101(7), at the time of her
injury.
Opinions and awards of the Commission are reviewed to
determine whether competent evidence exists to support the
Commission's findings of fact, and whether the findings of fact
support the Commission's conclusions of law. See Deese v. Champion
Int'l Corp., 352 N.C. 109, 114, 530 S.E.2d 549, 552 (2000). If
supported by competent evidence, the Commission's findings are
binding on appeal even when there exists evidence to supportfindings to the contrary. Allen v. Roberts Elec. Contr'rs, 143
N.C. App. 55, 60, 546 S.E.2d 133, 137 (2001). The Commission's
conclusions of law are reviewed de novo. Allen, 143 N.C. App. at
63, 546 S.E.2d at 139.
The Commission made the following findings of fact:
7. Plaintiff . . . began her employment
with defendant-employer in January 1994.
8. Plaintiff took job applications and
other required forms home and friends helped
her to complete them. Plaintiff then copied
the forms in her own handwriting.
9. Plaintiff began living outside her
parents' home when she turned 18. She has
lived alone most of the last 25 years.
Friends have helped plaintiff fill out lease
applications and set up utilities when she
changed residences. In the past, friends have
read and explained documents to her, but
plaintiff always made the final decisions
concerning her affairs.
10. Plaintiff obtained a driver's
license and drove herself to places of
employment. A friend drove a route with
plaintiff until she learned it, and then she
commuted to her job alone. She was considered
a safe driver by friends and understood
traffic signs. Plaintiff's driver's license
has never been restricted.
11. Plaintiff has always cared for
herself, cooked for herself, and cleaned and
maintained her own living space.
12. Plaintiff had difficulty balancing
her checkbook and sought assistance from
friends in making financial decisions.
Plaintiff had someone explain her options and
then she decided what to do. Plaintiff at
times wrote checks without any assistance.
13. Plaintiff maintained her own time
records in order to be paid from her
employment. She kept up with changing work
schedules and hourly wages.
. . . .
16. Plaintiff was good at her job and
considered competent by her supervisors. Her
position required her to be responsible for
the care, safety and welfare of elderly and
disabled patients. Plaintiff was familiar
with the limitations on care she could provide
as a CNA. She knew that she could not
administer medications or give shots, and she
never attempted to provide those services.
17. Plaintiff has never been adjudged
incompetent by any court or judicial agency.
Plaintiff never had a guardian appointed and
stated at the hearing before the Deputy
Commissioner that she never felt she needed a
guardian.
18. Plaintiff alleges that she sustained
an injury by accident arising out of and in
the course of her employment with defendant-
employer on [May] 15, 1995. Plaintiff did not
file a claim with the Commission until she
submitted a Form 18 on October 4, 1999. This
form was filed without an attorney.
19. . . . [T]he Full Commission reverses
the Deputy Commissioner's decision and finds
by the greater weight of the evidence that
plaintiff was competent to manage her own
affairs at the time of her injury and during
the two year period following. Plaintiff had
a history of twenty years of continuous
employment before the date of the accident,
held a valid driver's license, obtained
special state licensing as a Certified Nurses
Aide I, made financial and personal decisions
for herself, and lived alone and cared for
herself.
Based on these findings of fact, the Commission concluded:
5. In the case at bar the greater
weight of the evidence shows the plaintiff was
not incompetent at the time of her alleged
injury by accident or during the following two
years. N.C. Gen. Stat. §35A-1101(7); 94-24;
97-50. During the time period in question,
plaintiff was capable of managing her own
affairs, could exercise rational judgment and
was able to understand the consequences of heractions. . . . “[M]ere weakness of mind will
not be sufficient to put a person among those
who are incompetent to manage their own
affairs.”
Plaintiff assigned as error only findings of fact 9 and 12,
and conclusion of law 5. These findings of facts are supported by
competent evidence in that plaintiff testified that she began
living on her own when she turned 18 and had lived alone for most
of the last 25 years. She testified that friends helped her
complete lease applications and set up utilities when she changed
residences, read and explained documents to her, but she always
made the final decisions. In addition, Cornelia Raleigh, Christine
Boler, and Amy Smith testified that plaintiff needed help balancing
her checkbook and they assisted her in making financial decisions,
but plaintiff decided what to do and at times wrote checks without
any assistance.
The findings, both those assigned as error and those not
assigned as error, support the Commission's conclusion that
plaintiff was not an incompetent adult at the time of the injury
(conclusion of law 5), and the statute of limitations was not
tolled until plaintiff was made aware of her right to file a claim.
This assignment of error is overruled.
II
Second, plaintiff argues that the Commission erred in failing
to address her assignments of error concerning the deputy
commissioner's sustaining of defendant's objections to: (1)
testimony regarding whether plaintiff could understand information
or questions her friends read or explained to her; and (2)statements plaintiff made to a witness during plaintiff's alleged
period of incompetency. Plaintiff asserts that these rulings
significantly restricted her ability to present evidence regarding
the effects her mental retardation had on her mental competency.
“'[T]he exclusion of evidence, including the testimony of
witnesses, cannot be held prejudicial when the record fails to show
what evidence would have been introduced or what testimony would
have been given by the witness.'”
Thompson v. Lenoir Transfer Co.,
48 N.C. App. 47, 52, 268 S.E.2d 534, 537 (1980) (citation omitted).
“'The burden is on the appellant not only to show error, but that
the alleged error was prejudicial and amounted to the denial of
some substantial right.'”
Id. (citation omitted).
Here, the record is devoid of any indication that plaintiff
presented to the Commission an offer of proof concerning the
excluded testimony. Moreover, plaintiff has not presented to this
Court an offer of proof showing what evidence would have been
tendered if the excluded testimony had been allowed.
Our courts have consistently held that the Commission is
required to “make findings from which an appellate court may
reasonably infer that it gave proper consideration to all relevant
testimony.”
Smith v. Beasley Enters., 148 N.C. App. 559, 562, 577
S.E.2d 902, 904 (2002). In the instant case, however, the record
does not indicate that plaintiff presented the Commission with an
offer of proof from which it could make findings concerning the
admissibility, relevancy, or credibility of the excluded evidence;
nor determine whether exclusion of the evidence was prejudicial. Therefore, having failed to present the Commission with adequate
evidence for it to make a proper review, plaintiff cannot show the
Commission erred in not reviewing all of the assignments of error.
Moreover, without the necessary offer, plaintiff cannot meet her
burden to show prejudice. This assignment of error is overruled.
III
Last, plaintiff argues that the Commission erred in denying
plaintiff's motion to take additional evidence.
The decision to receive additional evidence is within the
sound discretion of the Commission.
Keel v. H&V, Inc., 107 N.C.
App. 536, 542, 421 S.E.2d 362, 366 (1992). Moreover, the
Commission's decision in this regard “will not be reviewed on
appeal absent a showing of manifest abuse of discretion.”
Keel,
107 N.C. App. at 542, 421 S.E.2d at 367.
At the hearing before the Commission, plaintiff attempted to
offer the affidavit of plaintiff's former supervisor Yvonne
Kirkwood to show that plaintiff, in fact, reported her accident to
her employer the day after the injury. The Commission refused to
accept the affidavit into evidence.
On appeal, plaintiff argues that defendant would not have been
prejudiced by admission of the affidavit. However, whether
defendant would have been prejudiced by admission of the affidavit
does not in itself demonstrate that the Commission erred in not
allowing the affidavit into evidence. This assignment of error is
overruled.
Affirmed. Judges McCULLOUGH and ELMORE concur.
Report per Rule 30(e).
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