Workers' Compensation--facial disfigurement--Commission's failure to personally view
The Industrial Commission erred in a workers' compensation case arising out of
plaintiff's face injury she sustained from a dog bite arising out of her employment as a dog
groomer by awarding plaintiff compensation for facial disfigurement, and the case is remanded
for a new hearing and award in accordance with the Commission's rules, because: (1) the
Commission failed to personally view plaintiff's disfigurement as required by Rule 701(9) of the
Workers' Compensation Rules; (2) the full Commission did not base its findings on competent
evidence, but instead relied on the description given by the deputy commissioner and
photographs of plaintiff which had been excluded as evidence representative of plaintiff's
disfigurement by the deputy commissioner; and (3) the parties did not agree on a description of
the disfigurement.
Wayne O. Clontz, for plaintiff-appellant.
Teague, Campbell, Dennis & Gorham, L.L.P., by Season D.
Atkinson, for defendant-appellants.
MARTIN, Chief Judge.
Plaintiff filed this workers' compensation claim to recover
for an injury to her face, sustained when she suffered a dog bite
arising out of her employment as a dog groomer. Defendants
admitted compensability and plaintiff received total temporary
compensation while she was out of work and underwent cosmetic
surgery “to correct misalignment of the vermillion border of
plaintiff's upper lip” due to the dog bite. Her plastic surgeon,Dr. Siciliano, determined that she had reached maximum medical
improvement on 21 May 2001.
The deputy commissioner found that plaintiff had a permanent
scar on her upper lip as a result of the 28 February 2000
compensable injury and that the scar was visible “from a distance
of six feet or less.” As a result of the scar, plaintiff's
philtrum, the area of the upper lip directly in the middle of the
nose that extends down to the bottom of the upper lip, is
approximately twice the normal width. The deputy commissioner
further found that plaintiff was embarrassed and self-conscious
about the scar, and that the scar caused her numbness and pain or
discomfort. The deputy commissioner determined that:
9. As a direct and proximate consequence of
plaintiff's February 28, 2000 compensable
injury, plaintiff has sustained serious and
permanent facial disfigurement which mars her
appearance to such an extent that it may
reasonably be presumed to lessen her future
opportunities for remunerative employment and
so reduce her future earning capacity. The
fair and equitable amount of compensation for
this loss under the Workers' Compensation Act
is $1,450.00.
Based on these findings, plaintiff was awarded compensation
for facial disfigurement in the amount of $1,450.00, to be paid in
a lump sum, subject to a reasonable attorney's fee of twenty-five
percent (25%). Defendants were ordered to “pay all medical[]
expenses incurred by plaintiff as a result of this injury by
accident” and costs.
Plaintiff appealed the deputy commissioner's award to the Full
Commission. Due to a mis-communication by the plaintiff'sattorney, “plaintiff was not present at oral arguments” scheduled
for 2 December 2002. The Commission specially scheduled a “viewing
of the plaintiff” for 7 May 2003, and defendants' counsel appeared
but neither plaintiff nor her attorney appeared. Upon being
contacted by the Commission, plaintiff's counsel advised that
plaintiff could not attend the viewing due to a lack of
transportation. Plaintiff's attorney apparently sought “a further
continuance” to which defendants objected.
The Commission proceeded to issue its Opinion and Award,
determining “that the pictures of plaintiff in evidence and
description given by the deputy commissioner are sufficient to
render a decision in this matter, especially in light of the
information from plaintiff's attorney that plaintiff has received
subsequently additional facial injuries from an unrelated
incident.” In the Opinion and Award, the Commission made, almost
verbatim, the same findings of fact and conclusions of law made by
the deputy commissioner and awarded plaintiff compensation for
disfigurement in the amount of $1,450.00, subject to an attorney's
fee of twenty-five percent (25%), and ordered defendants to pay all
medical expenses incurred by plaintiff as a result of the accident.
Both plaintiff and defendants appeal from the award of the Full
Commission.
_________________________
On appeal, plaintiff argues that the Commission's monetary
award for disfigurement is inconsistent with its findings with
respect to the severity of her facial disfigurement. Conversely, defendants contend the Commission erred by (1) granting plaintiff
any compensation because the disfigurement is not serious and (2)
failing to personally view plaintiff's disfigurement pursuant to
Rule 701 (9) of the Workers Compensation Rules.
When reviewing an opinion and award of the Industrial
Commission, we determine “(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). The Commission performs the “ultimate
fact-finding” function under our Workers Compensation Act. Adams
v. AVX Corp., 349 N.C. 676, 680-81, 509 S.E.2d 411, 413 (1998),
reh'g denied, 350 N.C. 108, 532 S.E.2d 522 (1999) and a
determination of serious facial disfigurement “is a question of
fact to be resolved by the Commission.” Russell v. Laboratory
Corp. of Am., 151 N.C. App. 63, 68, 564 S.E.2d 634, 638, disc.
review denied, 356 N.C. 304, 570 S.E.2d 111 (2002). When the
Commission's findings are supported by competent evidence, they are
conclusive on appeal, Hedrick v. PPG Industries, 126 N.C. App. 354,
357, 484 S.E.2d 853, 856, disc. review denied, 346 N.C. 546, 488
S.E.2d 801-02 (1997), and this Court “may set aside a finding of
fact only if it lacks evidentiary support.” Holley v. ACTS, Inc.,
357 N.C. 228, 231, 581 S.E.2d 750, 752 (2003).
In this case, the Commission did not base its findings on
competent evidence; rather, the Commission relied upon the
“description given by the deputy commissioner” and photographs ofplaintiff which had been excluded as evidence representative of
plaintiff's disfigurement by the deputy commissioner. Industrial
Commission Rule 701 (9) requires that “[a] plaintiff appealing the
amount of a disfigurement award shall personally appear before the
Full Commission to permit the Full Commission to view the
disfigurement.” Worker's Comp. R. of N.C. Indus. Comm'n 701 (9),
2003 Ann. R. (N.C.) 844. By simply adopting the facts as found by
the deputy commissioner, without viewing plaintiff or having a
description of the disfigurement agreed upon by the parties, the
Commission has failed to base its factual findings upon competent
evidence. Because there was not competent evidence before the
Commission on which to base its award, the Full Commission erred in
awarding plaintiff compensation for facial disfigurement.
Therefore, we must remand this matter to the Commission for a new
hearing and award in accordance with the Commission's rules.
Remand for new hearing.
Judges CALABRIA and GEER concur.
*** Converted from WordPerfect ***