ROBERT E. TIMMONS, JR.,
Employee
v.
NORTH CAROLINA DEPARTMENT OF TRANSPORTATION,
Employer, Self-Insurer
On discretionary review pursuant to N.C.G.S. § 7A-31 of
a unanimous decision of the Court of Appeals, 132 N.C. App. 377,
511 S.E.2d 659 (1999), affirming its holding in a prior decision
of this case reported at 130 N.C. App. 745, 504 S.E.2d 567
(1998), in which it affirmed in part and reversed in part a
decision of the Industrial Commission entered 29 July 1997.
Heard in the Supreme Court 20 September 1999.
Folger and Folger, by Fred Folger, Jr.; and Francisco
and Merritt, by George E. Francisco, for plaintiff-
appellant.
Michael F. Easley, Attorney General, by William H.
Borden and D. Sigsbee Miller, Assistant Attorneys
General, for defendant-appellee.
FRYE, Chief Justice.
This case arises from proceedings before the Industrial
Commission. Plaintiff requested that the Commission order
preparation of a life care plan to evaluate plaintiff's
condition and rehabilitative needs at defendant's expense
pursuant to N.C.G.S. § 97-25. Ultimately, the full Commission
found that the life care plan was necessary as a result of the
injuries suffered by plaintiff. For the reasons stated herein,we conclude that there is some competent evidence in the record
to support the Commission's findings, and accordingly, we reverse
the Court of Appeals' decision to the contrary.
Plaintiff was rendered paraplegic from a compensable
spinal cord injury in the course and scope of his employment on
3 July 1980. Pursuant to a Form 21 agreement approved by the
Industrial Commission, defendant paid plaintiff's disability
benefits and a majority of plaintiff's medical expenses.
Defendant also paid for modification of plaintiff's parents' home
to make it handicapped-accessible.
In 1992, plaintiff sought additional care and
rehabilitation services including independent handicapped housing
accommodations. He filed a Motion for Life Care Plan with the
Industrial Commission requesting an order for the preparation of
a life care plan at defendant's expense pursuant to N.C.G.S. §
97-25. Defendant thereafter sought to terminate plaintiff's
total disability benefits because plaintiff had returned to full-
time employment.
The deputy commissioner ordered plaintiff to present
to the defendant a definite outline of the Handicap Housing and
Life Care Plan being sought by the plaintiff. Plaintiff
submitted a life care plan prepared by Dr. Cynthia Wilhelm and
further moved that the Industrial Commission order defendant to
compensate Dr. Wilhelm $3,274.30 for preparing the plan.
The deputy commissioner entered an opinion and award
that denied defendant's motion to terminate plaintiff's
disability benefits; denied plaintiff's motion for a life careplan; but ordered that defendant bear the costs of handicapped
housing, attorney's fees, and Dr. Wilhelm's charges. Both
parties appealed to the full Commission.
The full Commission found that the life care plan was
necessary as a result of the injuries suffered by plaintiff. The
Commission decided that plaintiff was entitled to the life care
plan and, in all other respects, adopted the opinion and award of
the deputy commissioner. Defendant appealed to the Court of
Appeals.
The Court of Appeals affirmed in part the Commission's
order and remanded in part to the full Commission for
clarification of the question of payment of Dr. Wilhelm's fee.
Timmons v. N.C. Dep't of Transp., 123 N.C. App. 456, 461, 473
S.E.2d 356, 360 (1996), aff'd per curiam, 346 N.C. 173, 484
S.E.2d 551 (1997).
On remand, the full Commission made new findings of
fact and conclusions of law. The Commission entered an amended
opinion and award accepting the life care plan as a necessary
plan and ordering defendant to pay for the plan.
Defendant appealed, and the Court of Appeals found no
evidence to support the Commission's findings. Timmons v. N.C.
Dep't of Transp., 130 N.C. App. 745, 504 S.E.2d 567 (1998). The
Court of Appeals determined that there was no evidence that the
life care plan was a medical service or other treatment
reasonably necessary to effect a cure or give relief and thus
reversed the opinion and award insofar as it required defendantto pay for the preparation of the life care plan and services
mentioned therein.
On 30 December 1998, this Court allowed plaintiff's
petition for discretionary review for the limited purpose of
remanding the case to the Court of Appeals for reconsideration in
light of Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998).
Upon reconsideration, the Court of Appeals affirmed its prior
holding that there was no competent evidence to support the award
of the costs of preparation of the life care plan and services
therein. Timmons v. N.C. Dep't of Transp., 132 N.C. App. 377,
511 S.E.2d 659 (1999).
This Court allowed plaintiff's petition for
discretionary review solely to decide the issue of whether
defendant is required to pay Dr. Wilhelm for preparation of the
life care plan.
At the time of plaintiff's injury in 1980, N.C.G.S. §
97-31 provided in relevant part:
(17) The loss of . . . both legs . . . shall
constitute total and permanent
disability, to be compensated according
to the provisions of G.S. § 97-29
. . . .
. . . .
(19) Total loss of use of a member . . .
shall be considered as equivalent to the
loss of such member . . . .
N.C.G.S. § 97-31 (1979) (amended 1987). At that time, N.C.G.S. §
97-29 provided:
In cases of total and permanent disability,
compensation, including reasonable and
necessary nursing services, medicines, sick
travel, medical, hospital, and other
treatment or care or rehabilitative services
shall be paid for by the employer during the
lifetime of the injured employee.
N.C.G.S. § 97-29 (1979) (amended 1981). In addition, at that
time, N.C.G.S. § 97-25 required in pertinent part that the
employer provide
[m]edical, surgical, hospital, nursing
services, . . . rehabilitation services, and
other treatment including medical and
surgical supplies as may reasonably be
required to effect a cure or give relief
. . . .
N.C.G.S. § 97-25 (1979) (amended 1991). Citing N.C.G.S. § 97-25,
the full Commission accepted the life care plan as necessary as a
result of the injuries suffered by plaintiff and ordered
defendant to pay for the plan.
In its amended opinion and award, the Commission made
numerous findings of fact including:
6. From 1982, when he began to work
part-time for the defendant, until 1989, when
he began to work full-time, the plaintiff was
living alone in handicapped accessible
housing under circumstances of independence
in which he developed and became a
responsible working member of society.
Subsequent thereto upon returning to his
parents['] home, because of the rent increase
occurring at that time, his privacy as well
as that of his parents, has been jeopardized.
Although handicapped accommodations had
earlier, prior to 1982, been made there by
the defendant, the accommodations were no
longer appropriate to the plaintiff's more
independent and responsible lifestyle which
he had developed after returning to work
full-time. For that reason in January of
1991, plaintiff moved to an apartment which
provided privacy but which was not adapted to
his particular disability needs.
7. Plaintiff has now advanced to a
stage in life in which he needs a home and
the quality of life to be derived therefrom
and is requesting the help of the defendant
under the provisions of the North Carolina
Workers' Compensation Act to continue the
assistance therein provided.
. . . .
9. Dr. Cynthia L. Wilhelm, Ph.D.,
strongly recommended the development of a
Life Care Plan for plaintiff. . . .
. . . .
10. The Full Commission accepts this
plan as a necessary life care plan as a
result of the injuries suffered by plaintiff.
In Adams v. AVX Corp., this Court stated:
The findings of fact by the Industrial
Commission are conclusive on appeal if
supported by any competent evidence.
Gallimore v. Marilyn's Shoes, 292 N.C. 399,
402, 233 S.E.2d 529, 531 (1977). Thus, on
appeal, this Court does not have the right
to weigh the evidence and decide the issue on
the basis of its weight. The court's duty
goes no further than to determine 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)].
N.C.G.S. § 97-86 provides that an award
of the Commission upon such review, as
provided in G.S. § 97-85, shall be conclusive
and binding as to all questions of fact.
N.C.G.S. § 97-86 (1991). As we stated in
Jones v. Myrtle Desk Co., 264 N.C. 401, 141
S.E.2d 632 (1965), [t]he findings of fact of
the Industrial Commission are conclusive on
appeal when supported by competent evidence,
even though there be evidence that would
support findings to the contrary. Id. at
402, 141 S.E.2d at 633.
Adams, 349 N.C. at 681, 509 S.E.2d at 414. This Court must
accept the Commission's findings of fact if there is any
competent evidence to support those findings.
While preparation of a life care plan is not necessary
in all workers' compensation cases, the record before us contains
competent evidence to support the Commission's finding that a life care plan was necessary as a result of the injuries suffered
by plaintiff in this case.
Dr. Wilhelm, a rehabilitation expert who teaches at the
University of North Carolina School of Medicine, explained that a
life care plan is a plan to evaluate what [plaintiff's] needs
would be presently and what his needs would be in the future.
In her deposition, Dr. Wilhelm strongly recommended the
development of a life care plan to evaluate plaintiff's present
and future needs. She further testified that spinal cord
injuries require constant monitoring of bowel/bladder, skin,
orthopedic issues, neurological issues, and respiratory issues,
as well as physical therapy and occupational therapy, and that
plaintiff had not been examined by a neurologist or orthopedist
since his discharge from the rehabilitation center in 1980. She
further stated that plaintiff had not been followed on a regular
basis other than urologically, and even that was sporadic. We
believe this evidence was sufficient to support a finding by the
Commission that preparation of a life care plan was a
rehabilitative service necessary to give relief to the paraplegic
claimant within the meaning of N.C.G.S. § 97-25.
An appellate court does not weigh the evidence in order
to make new findings; rather, it is bound by the Commission's
findings of fact when there is any evidence to support those
findings, even though the evidence may well support contrary
findings. Here, the record contains some competent evidence to
support the Commission's finding that the life care plan was
necessary as a result of the injury to plaintiff in this case. Therefore, the Court of Appeals erred by rejecting this finding
and overruling the Commission.
REVERSED.
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