Mebane v. General Electric Co.

WELLS, Judge. Defendants cross-assign error to the Industrial Commission’s failure to grant dismissal of plaintiffs appeal to the Full Commission because plaintiff failed to comply with Rule XXI of the Rules of the North Carolina Industrial Commission. Rule XXI(2) states that: [T]he Commission will supply to the ■ appellant proper form upon which he must state the particular grounds for his appeal. This form must be filed with the Commission, copy to appellee, within ten (10) days of appellant’s receipt of [755] transcript of the record, unless the use of such forms shall, in the discretion of the Commission, be waived. The transcript of the hearing before Commissioner Roney was filed on 16 December 1982. On 23 March 1983, defendants filed the motion to dismiss. On 12 May 1983, plaintiff filed an application for review in accordance with Rule XXI(b). The record on appeal is devoid of information showing whether or not the Industrial Commission considered defendant’s motion. It is apparent the Full Commission waived defendant’s motion by hearing plaintiffs appeal. Rule XXIV of the Rules of the North Carolina Industrial Commission provide that “[i]n the interest of justice, any procedural rule may be waived. . . .” In Hyatt v. Waverly Mills, 56 N.C. App. 14, 286 S.E. 2d 837 (1982), we held that “[t]he exercise of [the Commission’s] . . . discretion in such matters is not reviewable by the courts, absent a showing of manifest abuse of that discretion.” Defendant has made no showing of abuse of discretion. This assignment of error is overruled. Plaintiff contends that the Deputy Commissioner erred in finding that (1) the plaintiffs blackout spells and dizziness are not the result of the employment accident; (2) the resulting incapacity to earn wages was not the result of that accident; and (3) the Full Commission erred in adopting the Deputy Commissioner’s finding of fact and conclusion of law that plaintiffs incapacity to earn wages was not the result of the accident. Our courts have consistently held that workers injured in compensable accidents are entitled to be compensated for all disability caused by and resulting from the compensable injury. Giles v. Tri-State Erectors, 287 N.C. 219, 214 S.E. 2d 107 (1975); accord Perry v. Furniture Co., 296 N.C. 88, 249 S.E. 2d 397 (1978); Little v. Food Service, 295 N.C. 527, 246 S.E. 2d 743 (1978); Roper v. J. P. Stevens & Co., 65 N.C. App. 69, 308 S.E. 2d 485 (1983), disc. rev. denied, 310 N.C. 309, 312 S.E. 2d 652 (1984). In this case, the parties stipulated that plaintiff was entitled to compensation for medical expenses and temporary permanent disability from the date of the employment accident until 1 June 1980. The issue presented is whether or not plaintiff is entitled to disability benefits beyond that date. The pivotal question in each of plaintiffs assignments of error is whether plaintiffs disabling seizures are the result of her employment related injury or the congenital brain disorder. [756] We first note that jurisdiction of appellate courts in reviewing a decision of the Industrial Commission is limited to the questions (1) whether there was competent evidence before the Commission to support its findings and (2) whether such findings support its legal conclusions. Perry v. Furniture Co., supra. The Industrial Commission’s findings of fact “are conclusive on appeal when supported by competent evidence even though there is evidence to support contrary findings. . . .” Dowdy v. Fieldcrest Mills, 308 N.C. 701, 304 S.E. 2d 215 (1983), reh. denied, --- N.C. ---, 311 S.E. 2d 590 (1984). We find that Commissioner Roney’s findings cited above, and adopted by the Full Commission, are supported by competent evidence of Dr. Love even though contradicted by Dr. Kiser. The findings of fact, in turn, support the legal conclusions of the Commission. Dr. Love, a neurologist qualified as an expert witness, treated plaintiff from 31 August 1979 until December 1980. He performed extensive diagnostic tests in treating plaintiff. In his opinion, plaintiffs blackout spells were caused by either the arteriovenous malformation or the physiological changes resulting from the corrective surgery. He ruled out post-traumatic epilepsy resulting from plaintiffs fall, but admitted that absolute certainty was impossible. Dr. Robinson, plaintiffs neurosurgeon and qualified as an expert witness, testified that the cause of plaintiffs seizures could be either the brain malformation or the trauma produced by the fall. It is his experience that where the dura mater surrounding the brain is punctured, as in plaintiffs surgery, the chance of resulting seizure disorder exceeds sixty percent compared to a five percent probability of such disorder associated with a closed head injury, as in plaintiffs fall. Dr. Kiser, a neurologist and qualified as an expert witness, treated plaintiff since 16 January 1981 in an attempt to control her seizures, dizziness, and headaches. He thoroughly reviewed the previous medical history and performed numerous diagnostic tests. His opinion is that plaintiffs seizures may have manifested themselves prior to surgery and were attributable to plaintiffs accident. His diagnosis is that her condition will not improve. Plaintiff contends that Dr. Love and Dr. Robinson’s evidence is incompetent to find that plaintiffs disability is related to the congenital brain malformation. Plaintiff argues that both physi [757] cians based their testimony on statistical probabilities that patients with penetration of the dura mater will suffer seizures more frequently than patients with closed head trauma. Both doctors, especially Dr. Robinson, relied on statistical probabilities. The record discloses, however, that Dr. Love, also based his opinion on numerous specific findings relating to this plaintiff that are not based on mere statistical comparisons. Defendants argue that because of the conflicting medical evidence the determination of this case must be based on statistical probabilities. We reject this assertion. We agree with that part of Commissioner Charles Clay’s reasoned statement in dissent from the Full Commission that “the decision in this case should be based not on general ‘medical probabilities’ but upon the medical evidence in this specific case. . . .” We hold that competent, albeit conflicting, evidence was introduced by plaintiff and defendants on the issue of causation of plaintiffs disability. The Industrial Commission’s findings are supported by that evidence and are conclusive on appeal, Dowdy v. Fieldcrest Mills, supra. The findings support the Commission’s legal conclusions, Perry v. Furniture Co., supra. The decision of the Industrial Commission must be and is hereby Affirmed. Judges Arnold and Hill concur.