Strickland v. Central Service Motor Co.

EAGLES, Judge. Plaintiff assigns as error the Commission’s findings of fact that decedent did not regain consciousness at the scene and that decedent was unconscious before the collision. Plaintiff also challenges the Commission’s conclusion that death was not accelerated and that decedent’s condition was not aggravated by the collision. Finally, plaintiff asserts that the Commission erred in allowing Dr. Freedman, a neurologist, to testify as an expert. We hold that the Commission’s findings of fact are supported by the evidence and that the conclusions of law are supported by the findings. Additionally, the Commission did not err in allowing a neurologist to testify as an expert. Accordingly, we affirm the opinion and award. The Commission’s findings of fact are conclusive on appeal if supported by competent evidence. This is so even though there may be evidence which would support findings to the contrary. Hansel v. Sherman Textiles, 304 N.C. 44, 283 S.E. 2d 101 (1981). The Workers’ Compensation Act vests the Commission with full authority to find facts. The Commission is the sole judge of credibility and the weight to be given the witnesses’ testimony. Anderson v. Lincoln Construction Co., 265 N.C. 431, 144 S.E. 2d 272 (1965). Here, our function is not to weigh the evidence but is to determine whether the record contains any competent evidence tending to support the findings. Id. The Commission found that “[t]he deceased employee plaintiff did not . . . regain consciousness from the time of the accident until he was in the . . . Emergency Room some thirty minutes later.” Plaintiff contends that there was no evidence presented by defendant regarding decedent’s state of unconsciousness for a [83] few minutes at the scene of the accident. Because of this “gap” in evidence, plaintiff argues there is no competent evidence on which the Commission could base its finding that decedent never regained consciousness at the scene. Further, defendant argues that this was a critical finding, necessary to support the hypothetical situation that was the basis of expert opinion given by defendant’s witness. Plaintiff also contends that there is uncontroverted evidence that decedent was conscious for a brief time at the scene. We do not agree with plaintiff’s argument. Although there is a gap in firsthand testimony about decedent’s state of consciousness, inferences of fact from circumstances when reasonably drawn are permissible. The fact that other reasonable inferences could have been drawn by the trier of fact is no indication of error. If there is any evidence of substance which directly or by reasonable inference tends to support the Commission’s findings, this court is bound by the finding. Porterfield v. RPC Corp., 47 N.C. App. 140, 266 S.E. 2d 760 (1980). There was evidence before the Commission to support its finding that decedent was never conscious at the scene. Although plaintiff presented evidence to the contrary, the Commission has full authority to weigh the evidence and find the facts. The Commission also found that decedent was unconscious prior to the collision. Plaintiff asserts that there was no positive proof of decedent’s state of consciousness prior to impact since he was alone in the car. Plaintiff relies on Sloan v. Light Co., 248 N.C. 125, 102 S.E. 2d 822 (1958), and contends there is a presumption that decedent was conscious prior to the accident since he was conscious when he left home. In Sloan, the Court stated that “a factual situation once proven is presumed to continue in existence unless there is proof to the contrary.” Id. at 133, 102 S.E. 2d at 828. Plaintiff also relies on Pickrell v. Motor Convoy, Inc., 322 N.C. 363, 368 S.E. 2d 582 (1988) to argue that the presumption of compensability applies. We are not persuaded. Even if decedent is presumed to have remained conscious until proven otherwise, there was evidence from which the Commission could find that decedent was unconscious prior to the collision. Evidence that supports this finding consists of Ms. Grimes’ testimony regarding decedent’s initial inattentiveness, her unsuccessful attempts to attract his attention and that decedent was “looking down.” In addition, the state trooper testified that there was no indication decedent applied his brakes or otherwise attempted to avoid the collision. [84] Plaintiff’s reliance on Pickrell is misplaced. The presumption of compensability is applicable only where there is no evidence indicating that decedent died other than by a compensable cause. Id. at 371, 368 S.E. 2d at 587. In the present case there is evidence that decedent died other than by a compensable cause, i.e., ruptured anterior aneurysm. Therefore, the compensability presumption does not apply here. The Commission concluded that decedent’s death “was not the direct and natural result nor was it accelerated or aggravated by the injury he sustained as a result of the accident,” i.e., abrasions and lacerations of his left temple. Plaintiff assigns error to this conclusion. The question before us is whether the Commission’s findings of fact justify the legal conclusion. Hansel, supra; Byers v. Highway Comm., 275 N.C. 229, 166 S.E. 2d 649 (1969). We hold that the findings support the conclusion that death was not accelerated or aggravated by the injury. There was ample evidence presented and findings made regarding the rupture of decedent’s aneurysm prior to the collision. Additionally, there was evidence that as a result of the collision decedent suffered no broken bones and only superficial abrasions on his forehead. Plaintiff relies heavily on the evidence that the windshield of the car in which decedent was traveling was broken. However, there was no evidence nor finding that the cause of the break was contact with decedent’s head. In light of the uncontroverted evidence presented regarding the lack of any deep bruising or swelling of decedent’s head, it is unlikely that the broken windshield was caused by contact with decedent’s head. Plaintiff’s assignment of error is overruled. Finally, plaintiff asserts the Commission erred in allowing a neurologist to give opinion testimony. First, plaintiff argues that the neurologist was not found to be an expert in the field of ruptured berry aneurysms and was therefore not competent to offer opinions in conflict with those of the treating neurosurgeon. Second, plaintiff argues the opinion testimony must be stricken from the record because it was based on assumptions not supported by the evidence. We find no merit to plaintiff’s arguments. “A medical witness need not, as a matter of law, be a specialist in a particular subject to give an opinion on it.” Robinson v. J. P. Stevens and Co., Inc., 57 N.C. App. 619, 624, 292 S.E. 2d 144, 147 (1982). It was entirely proper for the Commission to include the testimony of a neurologist in its determination of the facts and evidence. Plaintiff’s assertion that the neurologist’s opinion was based on as [85] sumptions not supported by the evidence depends on our disapproving the Commission’s findings that decedent was unconscious prior to the collision and remained unconscious until he was at the hospital. Based on our disposition of those arguments, we find no merit here. Because plaintiff has failed to argue the remaining seven assignments of error listed in the record, they are deemed abandoned. Rule 28(b), N.C. Rules App. Pro. For the reasons stated, we affirm the opinion and award of the Industrial Commission. Affirmed. Judges COZORT and GREENE concur.