{ "id": 8527978, "name": "JAMES BLANKLEY v. WHITE SWAN UNIFORM RENTALS, CINCINNATI INSURANCE COMPANY", "name_abbreviation": "Blankley v. White Swan Uniform Rentals", "decision_date": "1992-10-20", "docket_number": "No. 9110IC1236", "first_page": "751", "last_page": "755", "citations": [ { "type": "official", "cite": "107 N.C. App. 751" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "283 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "104", "parenthetical": "findings of fact conclusive on appeal if supported by competent evidence" }, { "page": "104" } ], "opinion_index": 0 }, { "cite": "304 N.C. 44", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565283 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "49", "parenthetical": "findings of fact conclusive on appeal if supported by competent evidence" }, { "page": "49" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0044-01" ] }, { "cite": "144 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "265 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575582 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/265/0431-01" ] }, { "cite": "312 S.E.2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 308", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2403756, 2395921, 2403313, 2394261, 2401497 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0308-03", "/nc/310/0308-01", "/nc/310/0308-04", "/nc/310/0308-05", "/nc/310/0308-02" ] }, { "cite": "308 S.E.2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "336" } ], "opinion_index": 0 }, { "cite": "64 N.C. App. 695", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527561 ], "year": 1983, "pin_cites": [ { "page": "697" } ], "opinion_index": 0, "case_paths": [ "/nc-app/64/0695-01" ] }, { "cite": "338 S.E.2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "321" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 793", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524334 ], "year": 1986, "pin_cites": [ { "page": "795" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0793-01" ] }, { "cite": "418 S.E.2d 503", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "appellate courts only review errors of law; credibility and weight of evidence determined by Industrial Commission" } ], "opinion_index": 0 }, { "cite": "332 N.C. 78", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2505309 ], "year": 1992, "pin_cites": [ { "parenthetical": "appellate courts only review errors of law; credibility and weight of evidence determined by Industrial Commission" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0078-01" ] }, { "cite": "404 S.E.2d 183", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "185" }, { "page": "185" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 45", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519429 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "47" }, { "page": "47" }, { "page": "47" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0045-01" ] }, { "cite": "64 S.E.2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1951, "pin_cites": [ { "page": "268", "parenthetical": "citation omitted" }, { "page": "268" }, { "page": "268" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 497, "char_count": 9206, "ocr_confidence": 0.76, "pagerank": { "raw": 2.6463113037134653e-07, "percentile": 0.8236273620585601 }, "sha256": "d7056a53bbe1a36b942ba8ce5355720403a3327579ef214de184efad1b47bc12", "simhash": "1:6a214a823cba6e5e", "word_count": 1429 }, "last_updated": "2023-07-14T14:52:31.872261+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge Wynn concurs.", "Chief Judge HEDRICK concurs in the result only." ], "parties": [ "JAMES BLANKLEY v. WHITE SWAN UNIFORM RENTALS, CINCINNATI INSURANCE COMPANY" ], "opinions": [ { "text": "LEWIS, Judge.\nPlaintiff was a 36 year old high school graduate employed by defendant White Swan as a sales/delivery person. In 1979, prior to his employment with defendant, plaintiff sustained an injury to the lumbar area of his back which left him with a 25% permanent partial disability. On 7 December 1987, plaintiff sustained an injury to his head, neck and back in the course of his employment with defendant. Dr. Adams, who treated plaintiff for both back injuries, rated the 1987 injury as 25% functional impairment of the spine. At the insurance company\u2019s insistence, plaintiff was examined by another orthopedic surgeon, Dr. Serene.\nPlaintiff reached maximum medical improvement on 10 November 1988. Dr. Adams recommended that plaintiff resume work without driving or heavy lifting. According to plaintiff, defendant offered him one of two positions: an in-house job at the rate of $4.50 per hour or a sales/delivery route virtually identical in pay to his previous job. Plaintiff declined these offers and accepted a job as a car salesman on 12 December 1988. Plaintiff\u2019s average monthly wage with defendant was $1,680 and is between $1,800 and $2,000 with the car dealership.\nPlaintiff received 41 6/7 weeks of compensation for temporary total disability from 24 January 1988 until 11 November 1988, but sought to recover additional compensation for permanent disability. Following a hearing, a deputy commissioner denied his claim for additional compensation because plaintiff refused, without justification, employment suitable to his capacity procured for him by his employer pursuant to N.C.G.S. \u00a7 97-32. Without additional findings, the Full Commission adopted the deputy commissioner\u2019s opinion and affirmed the award. Plaintiff appeals.\nPlaintiff assigns as error the Industrial Commission\u2019s (Commission) failure to consider evidence of his physical condition before and after the work related accident. He also assigns as error the Commission\u2019s giving undue weight to the testimony of the employer\u2019s physician over the testimony of plaintiff\u2019s treating physician.\nThe crux of plaintiff\u2019s arguments is that the only medical opinion which should be accorded any weight is that of the treating physician. Having treated both of plaintiff\u2019s back injuries, it is undisputed that Dr. Adams would be more familiar with plaintiff\u2019s medical history. However, it is not his medical history, but his present medical condition which is at issue. The Worker\u2019s Compensation Statute (statute) refers to the examination of the injured employee by a \u201cqualified physician or surgeon.\u201d N.C.G.S. \u00a7 97-27 (1991). It does not compel the defendant employer, nor the Commission, to rely upon one source of medical information, that provided by the injured plaintiff. The statute specifically suspends an injured employee\u2019s right to compensation should he or she refuse to submit to examination by a physician designated and paid by the employer. N.C.G.S. \u00a7 97-27. \u201cMoreover, the notion that it is obligatory for the Commission to accord an involuntary or unquestioned credence to any particular testimony runs counter to the statute which confers upon it full fact-finding authority.\u201d Anderson v. Northwestern Motor Co., 233, N.C. 372, 376, 64 S.E.2d 265, 268 (1951) (citation omitted); N.C.G.S. \u00a7 97-84 (1991) (Commission determines disputes). See Evans v. AT&T Technologies, 103 N.C. App. 45, 47, 404 S.E.2d 183, 185 (1991), rev\u2019d on other grounds, 332 N.C. 78, 418 S.E.2d 503 (1992) (appellate courts only review errors of law; credibility and weight of evidence determined by Industrial Commission). Because the statute requires a plaintiff to submit to a medical examination by a physician of the employer\u2019s choice, unlikely to be the treating physician, and because the Commission is the statutorily designated fact-finder, plaintiffs argument that the Commission erred by failing to adopt the treating physician\u2019s position fails.\nPlaintiff argues that the Commission erred in finding that he refused suitable employment offered by his employer without justification. Plaintiff claims that the jobs offered were either significantly lower paying or were beyond the post-injury physical limits set by Dr. Adams. Though both physicians testified that plaintiff sustained a 10\u00b0/o permanent partial disability, as set out in North Carolina Industrial Commission guidelines, their opinions differed as to plaintiff\u2019s post-injury physical capabilities. Plaintiff\u2019s physician, Dr. Adams, testified that plaintiff would be unable to resume his past position with defendant employer because it exceeded the recommended weight lifting restrictions. Defendant\u2019s physician, Dr. Serene, testified that plaintiff could resume his prior job without any additional weight lifting restrictions.\nThe Commission is the \u201csole judge of the credibility of the witnesses, and of the weight to be given to their testimony[;] ... it may accept or reject the testimony of a witness ... in whole or in part. . . .\u201d Anderson, 233 N.C. at 376, 64 S.E.2d at 268; see Evans, 103 N.C. App. at 47, 404 S.E.2d at 185. The Commission has the \u201cduty and authority to resolve conflicts in the testimony . . ., and the conflict should not always be resolved in favor of the complainant.\u201d Cauble v. Macke Co., 78 N.C. App. 793, 795, 338 S.E.2d 320, 321 (1986). \u201c[I]f the evidence before the Commission is capable of supporting two conflicting findings, the determination of the Commission is conclusive on appeal.\u201d Dolbow v. Holland Industrial, Inc., 64 N.C. App. 695, 697, 308 S.E.2d 335, 336 (1983), disc. rev. denied, 310 N.C. 308, 312 S.E.2d 651 (1984). It is not the function of an appellate court to weigh the evidence. Evans, 103 N.C. App. at 47, 404 S.E.2d at 185 (citing Anderson v. Lincoln Constr. Co., 265 N.C. 431, 144 S.E.2d 272 (1965)). \u201cInasmuch as the findings of fact of the Full Commission are supported by legal evidence, they cannot be disturbed.\u201d Anderson, 233 N.C. at 376, 64 S.E.2d at 268; see N.C.G.S. \u00a7 97-86 (1991) (award conclusive as to facts); Hansel v. Sherman Textiles, 304 N.C. 44, 49, 283 S.E.2d 101, 104 (1981) (findings of fact conclusive on appeal if supported by competent evidence).\nIn the present case, the conflict in the medical testimony was resolved by the Commission by a finding of fact that plaintiff was physically able to return to his former job. The Commission also made findings that defendant-employer offered plaintiff a sales/ delivery route similar to the one he had, paying approximately the same amount, in which he could lift as little or as much weight as he desired, as well as jobs working in the plant or making only sales calls. These findings are supported by competent evidence in the record and thus are binding. See Hansel, 304 N.C. at 49, 283 S.E.2d at 104. These findings amply support a conclusion that his refusing the offers of employment was unjustified. Plaintiff\u2019s assignments of error are overruled and the opinion and award of the Commission is affirmed.\nAffirmed.\nJudge Wynn concurs.\nChief Judge HEDRICK concurs in the result only.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Franklin Smith for plaintiff-appellant.", "Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog, hy P. Collins Barwick, III, for defendants-appellees." ], "corrections": "", "head_matter": "JAMES BLANKLEY v. WHITE SWAN UNIFORM RENTALS, CINCINNATI INSURANCE COMPANY\nNo. 9110IC1236\n(Filed 20 October 1992)\n1. Master and Servant \u00a7 65.2 (NCI3d)\u2014 workers\u2019 compensation\u2014 back injury \u2014medical opinion \u2014employer\u2019s physician\nThe Industrial Commission did not err in a workers\u2019 compensation hearing by failing to adopt the position of plaintiff\u2019s treating physician rather than the employer\u2019s physician on plaintiff\u2019s physical condition before and after the accident. Plaintiff is required by N.C.G.S. \u00a7 97-27 to submit to a medical examination by a physician of the employer\u2019s choice, who is not likely to be the treating physician, and the Commission is the statutorily designated fact-finder. The issue is plaintiff\u2019s. present medical condition, not his medical history.\nAm Jur 2d, Workers\u2019 Compensation \u00a7 504.\n2. Master and Servant \u00a7 65.2 (NCI3d)\u2014 workers\u2019 compensation \u2014 back injury \u2014suitable employment refused \u2014conflicting medical opinions\nThe Industrial Commission did not err by finding that plaintiff refused suitable employment offered by his employer without justification where plaintiff claimed that the jobs offered were either significantly lower paying or beyond the post-injury physical limits set by his treating physician and the employer\u2019s physician testified that plaintiff could resume his prior job without any additional weight lifting restrictions. The conflict in the medical testimony was resolved by the Commission by a finding that plaintiff was physically able to return to his former job and by findings that defendant-employer offered plaintiff a sales/delivery route similar to the one he had, paying approximately the same, in which he could lift as little or as much weight as he desired, as well as jobs working in the plant or making only sales calls.\nAm Jur 2d, Workers\u2019 Compensation \u00a7 399.\nAppeal by plaintiff from opinion and award of the North Carolina Industrial Commission filed 24 September 1991. Heard in the Court of Appeals 24 August 1992.\nFranklin Smith for plaintiff-appellant.\nPatterson, Dilthey, Clay, Cranfill, Sumner & Hartzog, hy P. Collins Barwick, III, for defendants-appellees." }, "file_name": "0751-01", "first_page_order": 779, "last_page_order": 783 }