ROBERT FARISS,
Employee,
Plaintiff,
v
.
North Carolina
Industrial Commission
I.C. No. 149131
STROH COMPANIES, INC.,
Employer,
AMERICAN MOTORISTS INSURANCE
COMPANY,
Carrier,
Defendants.
Walden & Walden, by Daniel S. Walden, for plaintiff-appellee.
Womble, Carlyle, Sandridge & Rice, P.L.L.C., by Craig D.
Cannon, for defendants-appellants.
GEER, Judge.
Defendants Stroh Companies, Inc. and American Motorists
Insurance Company appeal from an opinion and award of the
Industrial Commission that (1) denied disability compensation to
plaintiff Robert Fariss from 6 August 1999 until the date Fariss
first underwent shoulder surgery on 9 October 2002, and (2) granted
total disability compensation from 9 October 2002 until further
order of the Commission. Since, on appeal, defendants only
challenge findings of fact immaterial to the Commission's ultimatedecision or improperly ask this Court to revisit the Commission's
credibility determinations, we affirm.
In reviewing a decision by the Commission, this Court's role
"is limited to determining whether there is any competent evidence
to support the findings of fact, and whether the findings of fact
justify the conclusions of law." Cross v. Blue Cross/Blue Shield,
104 N.C. App. 284, 285-86, 409 S.E.2d 103, 104 (1991). The
Commission's findings of fact are conclusive on appeal if supported
by competent evidence, even if there is evidence to support a
contrary finding. Morrison v. Burlington Indus., 304 N.C. 1, 6,
282 S.E.2d 458, 463 (1981). Findings of fact may be set aside on
appeal only "when there is a complete lack of competent evidence to
support them." Young v. Hickory Bus. Furniture, 353 N.C. 227, 230,
538 S.E.2d 912, 914 (2000).
In this case, the Commission made the following findings of
fact. At the time of the hearing before the Deputy Commissioner,
Fariss was 57 years old and had earned a GED at Forsyth Technical
Community College in 1976. From 1964 through 1970, Fariss worked
as a laborer in a variety of jobs. In 1970, he began working for
Schlitz Brewery at a plant that ultimately became owned by Stroh
Companies, Inc. in 1986. Fariss continued to work as a brewer or
laborer until 6 August 1999 when the Winston-Salem brewery was
closed and the employees laid off.
Fariss' job duties at the brewery involved demanding physical
labor, including using his hands and arms to lift up to 75 pounds. Among his other tasks, Fariss spent about three hours per day
removing, changing, and replacing heavy brass elbows in the
brewery's pipe system. In order to loosen and tighten the elbows,
Fariss had to raise an eight-pound weight above his head and then
bring it down with great force to hammer at the fittings that
joined each elbow to the pipe. Fariss' job also required him to
lift heavy hoses to a height above his chest and drag them for
attachment to the necessary pipes.
In early 1998, Fariss began to experience bilateral shoulder
pain, with the pain becoming significant in early 1999. Despite
the pain, however, he continued to perform his work duties. After
he was laid off in August 1999, the pain in his shoulders continued
to worsen. He found that the pain was aggravated by any arm
activity, particularly movements of his arms away from his body.
Fariss did not, however, seek medical treatment until 2 February
2001, when he reported his symptoms to Dr. John B. Thomas, his
family physician. Dr. Thomas referred him to Dr. Michael King, an
orthopaedist who evaluated him on 5 March 2001. Dr. King diagnosed
Fariss with bilateral rotator cuff tears, right worse than left,
that he concluded were probably caused by his job duties at Stroh.
Dr. King recommended arthroscopic surgery to address the problem.
On 18 March 2002, Fariss sought treatment from Dr. Gary G.
Poehling of the Winston-Salem Orthopaedic Group. Dr. Poehling
diagnosed bilateral shoulder impingement syndrome, right worse than
left, which he also believed was caused by Fariss' work duties. Like Dr. King, Dr. Poehling recommended arthroscopic surgery on
both shoulders.
In August 2002, Fariss applied for a position as an armored
service technician with Loomis Fargo. He was offered the position,
but decided to turn it down after he realized that the job would
require lifting, carrying, and the ability to use a .38 revolver.
The Commission found that Fariss justifiably did not accept the job
offer.
On 9 October 2002, Dr. Poehling operated on Fariss' right
shoulder. The surgery, accompanied by eight weeks of followup
physical therapy, provided Fariss with some relief, but he
continued to experience moderate amounts of pain in his right
shoulder. On 21 May 2003, Dr. Poehling also operated on Fariss'
left shoulder. In a deposition taken soon after these surgeries,
Dr. Poehling testified that Fariss had reached maximum medical
improvement with respect to his right arm and shoulder, but not
with respect to his left. He expressed the opinion that Fariss was
incapable of returning to any employment.
On 14 April 2003, a vocational consultant, Gary L. Sigmon,
evaluated Fariss. Because of Fariss' physical limitations, coupled
with his inability to concentrate on tasks due to his pain, Mr.
Sigmon concluded that Fariss' injuries would prevent him from
seeking most types of work and that it was highly unlikely Fariss
would be able to procure suitable employment.
The Full Commission concluded that both of Fariss' shoulder
conditions were compensable occupational diseases. It determined,however, that Fariss had failed to prove he was disabled between
the time he was laid off by Stroh and the time of his first surgery
with Dr. Poehling on 9 October 2002. The Commission based this
conclusion on the fact that during this period of time, "no doctor
took plaintiff out of work, plaintiff was capable of some work but
did not make a reasonable effort to look for work, and there is
insufficient evidence of record that it would be futile for
plaintiff to seek employment." According to the Commission,
Fariss' total disability began as of the date of his first shoulder
surgery, 9 October 2002. He was entitled, therefore, to receive
total disability compensation at the rate of $560.00 per week
beginning 9 October 2002 and continuing until further order of the
Commission. Defendants have appealed that opinion and award.
Defendants' first argument is that the Full Commission erred
in determining that Fariss justifiably refused the offer of
employment with Loomis Fargo in August 2002. To warrant reversal,
the Industrial Commission's error must be material and prejudicial;
a reviewing court will not reverse for harmless error. Vaughn v.
N.C. Dep't of Human Res., 37 N.C. App. 86, 90, 245 S.E.2d 892, 894
(1978), aff'd on other grounds, 296 N.C. 683, 252 S.E.2d 792
(1979). Even though the Commission found Fariss' refusal of the
job justifiable, the Commission still concluded that "the greater
weight of the evidence of record fails to show that plaintiff was
disabled during the period from the date he was laid off, August 6,
1999, until his first surgery on October 9, 2002." Defendants have
made no argument explaining how the Commission's finding regardingFariss' rejection of the Loomis Fargo job is material in light of
the Commission's ultimate conclusion that Fariss did not become
disabled until after his surgery in October 2002, which was two
months after his rejection of the job. This assignment of error
is, therefore, overruled.
Defendants next argue that there was no competent evidence to
support the Full Commission's finding of fact that Fariss was
totally disabled starting 9 October 2002. While they acknowledge
that the Commission's determination is supported by the testimony
of Gary Sigmon, they nonetheless argue that "Mr. Sigmon's testimony
is simply not credible." It is well-established that "'[t]he
Commission is the sole judge of the credibility of the witnesses
and the weight to be given their testimony.'" Adams v. AVX Corp.,
349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998) (quoting Anderson v.
Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274
(1965)). This Court may not review the Commission's credibility
determinations. Deese v. Champion Int'l Corp., 352 N.C. 109, 116-
17, 530 S.E.2d 549, 553 (2000).
Here, Sigmon concluded _ based on Fariss' physical limitations
and inability to concentrate on tasks due to his pain, coupled with
his age, education, and work history _ that "it is highly unlikely
that suitable competitive employment opportunities exist in which
Mr. Fariss could be successful. . . . [H]is ability to find and
maintain employment is . . . impaired to the point that I don't
believe an occupation could be found that could meet that
criteria." Fariss' surgeon, Dr. Poehling, also expressed doubtsabout Fariss' ability to return to any employment, opining that "if
you go as an unemployed person to ask if you'll employ me, and they
ask you do you have any medical problems _ yeah, I'm being treated
for a rotator cuff tear, most employers will not accept you as an
employee." This evidence and the Commission's findings based on
that evidence are sufficient to support the conclusion that Fariss
was totally disabled as of 9 October 2002. See Russell v. Lowes
Prod. Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457
(1993) (holding that an employee may meet his burden of proving
disability by, among other methods, showing that "he is capable of
some work but that it would be futile because of preexisting
conditions, i.e., age, inexperience, lack of education, to seek
other employment" or that "he is physically or mentally, as a
consequence of the work related injury, incapable of work in any
employment").
Finally, defendants argue that "[e]ven if the Court finds Mr.
Sigmon's testimony to be credible, the Full Commission still erred
in awarding the plaintiff disability benefits from October 16, 2002
until April 13, 2003 . . . ." Defendants argue that Mr. Sigmon's
opinion cannot be a basis for a conclusion of disability between
the date of Fariss' recovery from the first surgery (a week after
the surgery) and 13 April 2003, because he did not meet with Fariss
until 14 April 2003.
We note that, even if we were to disregard Sigmon's opinions
as a basis for a conclusion of disability for any time period
before 14 April 2003, defendants have not addressed Dr. Poehling'stestimony, which also supports the finding of disability. Further,
defendants refer us to no authority, and we know of none, that
would bar the Commission from relying upon the opinions expressed
by Sigmon regarding Fariss' capacity to earn wages based on
Sigmon's understanding of Farris' physical limitations during the
relevant time frame and the pertinent vocational considerations.
The fact that Sigmon first evaluated Fariss on 14 April 2003 goes
to the weight and not the admissibility of Fariss' evidence. As we
have noted above, this Court "'does not have the right to weigh the
evidence and decide the issue on the basis of its weight. The
[C]ourt's duty goes no further than to determine whether the record
contains any evidence tending to support the finding.'" Deese, 352
N.C. at 115, 530 S.E.2d at 552 (quoting Adams, 349 N.C. at 681, 509
S.E.2d at 414). Defendants' final assignment of error is,
therefore, overruled.
Fariss has filed a motion in this Court, pursuant to Rule 34
of the North Carolina Rules of Appellate Procedure, seeking
attorneys' fees on appeal. "N.C.G.S. § 97-88 allows an injured
employee to move that its attorney's fees be paid whenever an
insurer appeals to the Full Commission, or to a court of the
appellate division, and the insurer is required to make payments to
the injured employee." Troutman v. White & Simpson, Inc., 121 N.C.
App. 48, 53, 464 S.E.2d 481, 485 (1995), disc. review denied, 343
N.C. 516, 472 S.E.2d 26 (1996). We find that Fariss has satisfied
the requirements of N.C. Gen. Stat. § 97-88 (2005) and that this
appeal is an appropriate case in which to exercise our discretionand grant Fariss' motion for attorneys' fees. We remand to the
Commission to determine the amount of reasonable attorneys' fees
incurred by Fariss on this appeal.
Affirmed and remanded.
Judges WYNN and McGEE concur.
Report per Rule 30(e).
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