Court: Court of Appeals of North Carolina; March 2, 1999; North Carolina; State Appellate Court
The Court of Appeals of North Carolina addressed the appeal from Carolina Marble and Tile Company and American States Insurance Company regarding an Industrial Commission ruling that awarded Jimmy D. Foster continuing compensation for temporary total disability due to work-related hearing issues. Foster, employed since the late 1980s, developed tinnitus and hearing loss after exposure to jackhammer noise in December 1991, leading to ongoing treatment with Dr. Ann Bogard, who diagnosed him with these conditions and indicated he was unlikely to improve or return to work. A Form 21 Agreement in 1992 established the defendants' obligation to provide temporary total disability benefits for Foster’s conditions. The defendants later sought to terminate these benefits, but the Full Commission reversed a deputy commissioner's decision to allow the cessation of payments, affirming Foster’s entitlement to benefits until he finds suitable employment or until further notice. The defendants contended that the Commission did not give adequate weight to the opinions of two physicians regarding Foster’s employability. However, the court noted that its review is limited to whether there is competent evidence supporting the Commission's findings and whether those findings justify the conclusions of law, emphasizing that the Commission is the sole arbiter of evidence weight and credibility.
Plaintiff cites Sanders v. Broyhill Furniture Indus. to assert that the Full Commission must defer to a deputy commissioner's credibility findings. However, the North Carolina Supreme Court has overruled Sanders, clarifying that N.C.G.S. 97-85 assigns ultimate credibility determinations to the Full Commission, regardless of whether the review is based on live testimony or a cold record. Therefore, the Full Commission is not obligated to show it considered the deputy commissioner's firsthand observations when reversing credibility findings.
Defendants contend the Commission erred by not voiding the Form 21 Agreement, arguing that the plaintiff is ineligible for compensation for tinnitus or hearing loss under G.S. 97-53(28)(c), which prohibits such awards. To invalidate a contract, there must be a mutual mistake regarding a material fact. G.S. 97-17 grants the Commission authority to set aside a Form 21 Agreement due to mutual mistake, while a mistake of law does not affect contract validity unless accompanied by fraud or similar issues. The court, referencing Swain, determined that mistakes regarding average weekly wage calculations were legal, not factual, thus upholding the agreement.
The court applied this reasoning to conclude that the question of the plaintiff's entitlement to compensation for tinnitus or hearing loss was also a legal issue. Without evidence of fraud or similar misconduct, the Commission's decision to affirm the Form 21 Agreement stands. Lastly, defendants argue that the Commission incorrectly found they failed to rebut the presumption of the plaintiff's continued disability, established by the approved Form 21 Agreement.
Once a presumption of continuing disability is established, the employer must prove the plaintiff's employability. The Commission's factual findings on this matter are binding on appeal if supported by any competent evidence. While evidence existed that could indicate the plaintiff regained the ability to work, there was also sufficient evidence supporting the Commission's conclusion that the plaintiff remains disabled. Specifically, Dr. Bogard testified against the plaintiff's return to work as a tile setter, citing ongoing issues such as tinnitus and hearing loss, compounded by medication requirements that hinder the plaintiff's ability to work. The Commission is responsible for evaluating this testimony, which bolsters its findings that the employer did not adequately rebut the presumption of disability. Consequently, the Industrial Commission's decision is affirmed.
