The undersigned have reviewed the prior Decision and Order based upon the record of the proceedings before Deputy Commissioner Jan Pittman. The appealing party has not shown good ground to reconsider the evidence, receive further evidence, rehear the parties or their representatives, or amend the Decision and Order.
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The Full Commission adopts the findings of fact found by the Deputy Commissioner as follows:
FINDINGS OF FACT
1. Plaintiff alleges that he was injured due to the negligence of defendant's employee, Sergeant David Cavanaugh, in that Sergeant Cavanaugh wrote plaintiff up when plaintiff failed to report for road squad duty.
2. Plaintiff alleges that he is unable to work on the work squad due to a knee injury which he sustained while incarcerated at another facility in 1988. However, a review of plaintiff's medical records which were received into evidence at the hearing as stipulated Exhibit One and defendant's Exhibit One reveal that when plaintiff was received into the Pender County facility on January 25, 1995, plaintiff was in Grade A health status.
3. In April 1995, while at the Pender County facility, plaintiff was seen by the nurse, and his prior medical records were obtained. Following receipt of said records, plaintiff was seen by a physician at the facility, Dr. Deere, whose examination revealed no evidence of residual disability from plaintiff's 1988 injury. Plaintiff exhibited a full range of right knee motion without the evidence of any enlargement, tenderness, or instability, and plaintiff was kept on Grade A work status.
4. Plaintiff has failed to show that he was entitled to be removed from the road squad because of a medical problem. Therefore, plaintiff has failed to show negligence on the part of Sergeant Cavanaugh for writing him up for his refusal to participate on the road squad duty.
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Based upon the findings of fact, the Full Commission concludes as follows:
CONCLUSIONS OF LAW
Plaintiff did not prove by the greater weight of the evidence that there was negligence on the part of defendant's employee, Sergeant Cavanaugh, while acting within the scope of his employment which proximately caused plaintiff an injury, and plaintiff is entitled to no damages. N.C.G.S. § 143-291et seq.
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Based on the foregoing findings of fact and conclusions of law, the Full Commission affirms the holding of the Deputy Commissioner and enters the following:
ORDER
1. This claim is HEREBY DENIED.
2. Each side shall pay its own costs.
S/ _____________________ BERNADINE S. BALLANCE COMMISSIONER
CONCURRING:
S/ _________________ J. RANDOLPH WARD COMMISSIONER
S/ _________________ J. HOWARD BUNN, JR. CHAIRMAN
BSB/cnp/rst 2/7/97