Ganey v. S. S. Kresge Co.

PARKER, Judge. The scope of review of a worker’s compensation award by the Industrial Commission is limited to (i) whether there was competent evidence to support the findings of fact, and (ii) whether such findings support the conclusions of law. Perry v. Hibriten Furniture Company, 296 N.C. 88, 249 S.E. 2d 397 (1978). This is the case even if there is sufficient evidence to support a contrary finding. Morrison v. Burlington Industries, 304 N.C. 1, 282 S.E. 2d 458 (1981). The plaintiff has the burden of proving both the existence of his disability and its degree. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E. 2d 682 (1982). Plaintiff assigns error to the Commission’s finding that he sustained 25% permanent partial disability to his back and no other permanent impairment. Plaintiff contends the Commission erred in not finding that he was disabled in his arms and legs as a result of his injury, or that he was permanently totally disabled under G.S. 97-29. The Commission’s finding was, however, supported by competent evidence. Dr. Parker testified that, in his opinion, plaintiff had permanent partial disability of approximately 25% of the spine. According to Dr. Parker, plaintiff reached maximum medi [304] cal improvement with respect to his cervical spinal injury in January 1980, and he reached maximum medical improvement with regard to his lumbar injury in the summer of 1980. Dr. Parker further testified that, in his opinion, plaintiff did not suffer any disability to his arms and legs. Dr. John Azzato, an orthopedic surgeon, testified that in his opinion plaintiff reached maximum medical improvement on 25 March 1982. He also testified that he was of the opinion that plaintiff could work because, objectively, he had no evidence of muscle weakness and plaintiff “would not harm himself by standing, sitting, stooping, lifting, bending, or pushing.” Clearly this evidence supports the Commission’s finding that “plaintiff sustained a 25 percent permanent partial disability to his back. He has no other permanent impairment except to his back.” Defendant argues that as there was extensive evidence regarding his loss of function of his arms and legs, there should be a finding as to his disability in his arms and legs. To support this proposition defendant cites Little v. Anson County Schools Food Service, 295 N.C. 527, 246 S.E. 2d 743 (1978) and Fleming v. K-Mart Corp., 312 N.C. 538, 324 S.E. 2d 214 (1985). These cases do not, however, support plaintiffs argument. In Little, the uncon-tradicted medical testimony was that the injury to plaintiffs spinal cord resulted in weakness in all her extremities, numbness throughout her body, diminished mobility and difficulty with position sense and with recognition of things in her hands. The Full Commission had affirmed the Deputy Commissioner’s finding that plaintiff suffered permanent partial disability of 45% of her back. Our Supreme Court reversed, holding as the uncontradicted medical evidence showed disability to compensable parts of plaintiffs body other than her back, if, on rehearing, the Commission determined that plaintiff in fact suffered these impairments, the award must take them into account. Little clearly does not support plaintiffs argument because in Little, the uncontradicted medical testimony showed disability to other parts of plaintiffs body. In the instant case, there was medical testimony that plaintiff did not suffer any disability to his arms or legs, but only to his back. In Fleming, the plaintiff injured his back while lifting heavy boxes of paint in the course of his employment with defendant. [305] The Commission found that plaintiffs orthopedic surgeon and neurologist had concluded that plaintiff had developed arachnoid-itis as a result of the treatment for his occupational injury, and the arachnoiditis was responsible for plaintiffs disabling pain in his back and leg. The Commission found that plaintiff was totally unable to pursue work of any kind and was incapable of earning any wages. The Commission concluded that plaintiff was totally disabled and awarded compensation for permanent total disability. Our Supreme Court reviewed the entire record, found that all the Commission’s findings of fact were supported by the evidence, and affirmed the Industrial Commission’s opinion and award. Fleming does not support plaintiffs argument; in Fleming, unlike the instant case, there was medical testimony that plaintiffs ar-achnoiditis caused his disabling back and leg pain, and this was found by the Commissioner. Plaintiff further argues that he should be compensated for his disabling emotional and psychological problems and the Commissioner’s finding that “[h]is psychological problems were not in themselves disabling, and he reached maximum medical improvement with respect to these problems by June 18, 1982” was not supported by the evidence. We do not agree. Plaintiffs psychiatrist, Dr. Robert Weinstein, testified that when he last saw plaintiff on 18 June 1982, plaintiff had reached maximum medical improvement. Plaintiff was “functioning better. He decided to stop treatment. He had gotten what he wanted from therapy.” Plaintiff presented no evidence that he was disabled from psychological problems. As the Commission’s finding was supported by the evidence, this assignment of error is overruled. In his last assignment of error plaintiff argues that the Commission erred in failing to award him attorney’s fees. An award of attorney’s fees is within the Commission’s discretion. Taylor v. J P. Stevens Co., 307 N.C. 392, 298 S.E. 2d 681 (1983). This assignment of error is overruled. For the reasons stated the Opinion and Award of the Industrial Commission is Affirmed. Judges Arnold and Eagles concur.