Jenkins v. Public Service Co. of NC

Judge Wynn

dissenting in part.

I disagree with the majority’s holding that the Full Commission erred in assigning no weight to Dr. Hicks’ testimony. In essence, the majority failed to consider whether competent evidence existed to support the Commission’s finding that Dr. Hicks’ conversation with the rehabilitation nurse gave “at least” the appearance of undue influence.

In Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998), our Supreme Court reiterated the limited role of this Court in reviewing decisions of the Industrial Commission. There, the Supreme Court instructed us that the Industrial Commission is the fact-finding body, and is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. See id. Thus, the findings of fact made by the Commission are conclusive on appeal when supported by competent evidence, even when there is evidence to support a finding to the contrary. See Plummer v. Henderson Storage Company, 118 N.C. App. 727, 456 S.E.2d 886 (1995).

*416Further, the Supreme Court stated that this Court “ ‘does not have the right to weigh the evidence and decide the issue on the basis of its weight. [In fact,] [t]he court’s duty goes no further than to determine whether the record contains any evidence tending to support the finding.’ ” Adams, 349 N.C. at 681, 509 S.E.2d at 414 (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)).

Here, the pertinent findings that relate to Dr. Hicks’ conversation with the rehabilitation nurse are:

18. The Commission gives great weight to the opinions of Drs. Rodger and Grobler in their treatment of plaintiff because their treatment accomplished the most toward solving plaintiff’s medical problem. The Full Commission gives no weight to the evidence of Dr. Hicks who left at least the appearance of undue influence by the rehabilitation nurse by stepping outside the presence of the plaintiff and into the presence of the rehabilitation nurse before saying whether or not he would sign the Form 28U.
19. ... The Deputy Commission also erred in not considering the possibility of undue influence upon Dr. Hicks by the medical rehabilitation nurse, who had apparently had a private conversation with Dr. Hicks just prior to his initial refusal to sign the Form 28U. . . .

These findings state that the Full Commission considered the opinions of Drs. Rodger, Grobler, and Hicks, but chose not to give any weight to Dr. Hicks’ testimony. The evidence shows that neither Dr. Rodger nor Dr. Grobler consulted with the rehabilitation nurse prior to making their medical decisions. Their medical conclusions favoring the plaintiff indeed are some evidence supporting the Commission’s findings that there was “left at least” a “possibility of undue influence upon Dr. Hicks by the medical rehabilitation nurse.”

Moreover, Dr. Hicks testified that the plaintiff informed him that two physicians in Statesville had seen “something on [the plaintiff’s] x-ray that would explain his pain.” According to plaintiff’s testimony, Dr. Hicks refused to review the accompanying x-rays at the time that the plaintiff presented the Form 28U for his approval. This again is some evidence to support the Commission’s findings.

Further, the plaintiff testified that he thought that Dr. Hicks was going to sign the form prior to his conversation with the rehabilitation *417nurse. He testified that following this conversation, Dr. Hicks handed the plaintiff the form and informed him that he could not sign it. This, too, is some evidence supporting the Commission’s findings.

Despite Dr. Hicks’ refusal to sign the Form 28U, he testified that in his opinion the plaintiff would be expected to live with some form of pain for the rest of his life which would limit certain jobs that he could perform. Additionally, Dr. Hicks admitted that he had no reason not to believe the plaintiff’s complaints of pain that he experienced while walking, standing, and sitting — which are all activities the plaintiff was required to perform in his position as a meter reader.

Finally, the Commission is the fact-finding body for matters arising under the Workers Compensation Act. As such, it considers numerous claims involving rehabilitation nurses. The Commission, not this Court, best understands the function of those specialists and their roles.

As long as there was any competent evidence to support the possibility of undue influence upon Dr. Hicks, the Commission’s findings on this basis are conclusive on appeal. See Plummer, 118 N.C. App. at 730, 456 S.E.2d at 888. And while contrary evidence existed, competent evidence supported the finding that Dr. Hicks’ consultation with the rehabilitation nurse prior to agreeing to sign the Form 28U created “at least the appearance of undue influence.” Accordingly, I dissent.