{
  "id": 8524589,
  "name": "CHARLES IVEY, Employee/Plaintiff v. FASCO INDUSTRIES, Employee, and NATIONWIDE MUTUAL INSURANCE CO., Carrier/Defendants",
  "name_abbreviation": "Ivey v. Fasco Industries",
  "decision_date": "1993-02-16",
  "docket_number": "No. 9210IC112",
  "first_page": "123",
  "last_page": "127",
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
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      "category": "reporters:state",
      "reporter": "N.C. App.",
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        8527213
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  "last_updated": "2023-07-14T20:43:31.464788+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges COZORT and LEWIS concur."
    ],
    "parties": [
      "CHARLES IVEY, Employee/Plaintiff v. FASCO INDUSTRIES, Employee, and NATIONWIDE MUTUAL INSURANCE CO., Carrier/Defendants"
    ],
    "opinions": [
      {
        "text": "WELLS, Judge.\nIn his first argument, plaintiff contends that the Full Commission\u2019s second opinion fails to follow the Court of Appeals\u2019 directives in that it fails to adequately address inconsistencies between the Haigh and Taylor opinions, but rather merely affirms the Haigh opinion. Plaintiff asserts that an unaddressed inconsistency exists, in that the Taylor opinion found that plaintiff suffered a compensable injury on 18 August 1982 to his neck, and the Haigh opinion stated in the \u201cComment\u201d section that \u201cplaintiff\u2019s disability beginning in August, 1982 and continuing thereafter is due to the injury by accident which plaintiff sustained in February, 1978.\u201d The statements made in the \u201cComment\u201d section of the Haigh opinion do not diminish Deputy Commissioner Haigh\u2019s findings with regard to any entitlements to plaintiff for temporary total disability or permanent partial disability after 16 February 1983.\nWe find that the Full Commission sufficiently addressed any inconsistency. The Taylor opinion found that plaintiff was entitled to temporary total disability compensation for the period between 27 August 1982 and 16 February 1983 due to the August 1982 injury. Based on Dr. Wilkins\u2019 deposition, evidence not available to Deputy Commissioner Taylor, Deputy Commissioner Haigh found that any disability plaintiff suffered after 16 February 1983 was not a result of the 1982 accident, but rather a change of condition of the February, 1978 injury. In essence, while the Haigh opinion found that plaintiff was entitled to no compensation for the 1982 accident after 16 February 1983, it in no way altered the Taylor opinion. Therefore, we find no inconsistency between the two opinions. To the extent that the Haigh opinion\u2019s \u201cComment\u201d section seems inconsistent with the Taylor opinion, we agree with the Full Commission that the Taylor opinion does not act as res judicata as to the Haigh opinion where the Taylor opinion reserved judgment for the period following 16 February 1983. Therefore, we find plaintiff\u2019s first argument to be without merit.\nNext, plaintiff contends that the Full Commission erred in affirming the Haigh opinion because Deputy Commissioner Haigh\u2019s findings of fact were outside the limited scope of his inquiry. We do not agree. Deputy Commissioner Haigh heard this case to determine what disability compensation, if any, plaintiff was due after 16 February 1983. Based on plaintiff\u2019s testimony and Dr. Wilkins\u2019 deposition, he found plaintiff was not due any further compensation, arising out of the August 1982 accident. Thus, Deputy Commissioner Haigh acted within his scope of inquiry.\n[3J Next, plaintiff contends that the findings of the Full Commission are not supported by competent evidence. The Industrial Commission is vested with exclusive authority to find facts and, on appeal, this Court is bound by the Commission\u2019s findings when they are supported by direct evidence or by reasonable inferences drawn from the record. Kennedy v. Duke University Medical Center, 101 N.C. App. 24, 398 S.E.2d 677 (1990). Thus, the issue becomes whether the record contains evidence from which a fact-finder could reasonably conclude that plaintiff was not due any disability compensation after 16 February 1983. After a careful review, we find that the record contains evidence which supports the findings of the Full Commission. Dr. Wilkins\u2019 testimony was to the effect that plaintiff\u2019s continuing disability after 1983 was due to his 1978 back injury and supports the Haigh opinion\u2019s findings.\nNext, plaintiff contends that the Full Commission erred in denying plaintiff\u2019s Rule 701 motion. As plaintiff acknowledges in his brief, the Rule 701 motion is addressed to the sound discretion of the Commission. Plaintiff has failed to demonstrate that the Commission abused its discretion in denying plaintiffs motion and, accordingly, we affirm.\nLastly, plaintiff reasserts its first argument, contending that the Full Commission made insufficient findings to support its denial of plaintiff\u2019s Rule 701 motion and its decision to affirm the Haigh opinion. For the reasons stated previously in this opinion, we disagree and find no merit in plaintiff\u2019s last argument.\nThe Full Commission\u2019s Opinion and Award is affirmed.\nJudges COZORT and LEWIS concur.",
        "type": "majority",
        "author": "WELLS, Judge."
      }
    ],
    "attorneys": [
      "Reid, Lewis, Deese & Nance, by James R. Nance, Jr., for employee-appellant.",
      "Marvin Schiller for employer/carrier-appellees."
    ],
    "corrections": "",
    "head_matter": "CHARLES IVEY, Employee/Plaintiff v. FASCO INDUSTRIES, Employee, and NATIONWIDE MUTUAL INSURANCE CO., Carrier/Defendants\nNo. 9210IC112\n(Filed 16 February 1993)\n1. Master and Servant \u00a7 55.1 (NCI3d)\u2014 workers\u2019 compensation \u2014 remanded opinion \u2014correction of inconsistencies\nThe Industrial Commission did not fail on remand to follow the Court of Appeals\u2019 directives to address inconsistencies in opinions by Deputy Commissioners. Although plaintiff asserts that an unaddressed inconsistency exists in that the Taylor opinion found that plaintiff suffered a compensable injury on 18 August to his neck and the subsequent Haigh opinion stated in the \u201cComment\u201d section that \u201cplaintiffs disability beginning in August, 1982 and continuing thereafter is due to the injury by accident which plaintiff sustained in February, 1978,\u201d there was no inconsistency because the Haigh opinion in no way altered the Taylor opinion. The Taylor opinion found that plaintiff was entitled to temporary total disability for the period between 27 August 1982 and 16 February 1983 due to the August 1982 injury and Haigh found, based on evidence not available to Taylor, that any disability plaintiff suffered after 16 February 1983 was not a result of the 1982 accident, but of a change of condition of the February 1978 accident.\nAm Jur 2d, Workers\u2019 Compensation \u00a7 613.\n2. Master and Servant \u00a7 93 (NCI3d)\u2014 workers\u2019 compensation \u2014 hearing by second Deputy Commissioner \u2014scope of inquiry\nDeputy Commissioner Haigh acted within the scope of his inquiry in a workers\u2019 compensation proceeding where another deputy commissioner had previously determined that plaintiff was entitled to temporary total disability for the period between 27 August 1982 and 16 February 1983 due to an August 1982 injury, but reserved judgment for the period following 16 February 1983; Deputy Commissioner Haigh heard this case to determine what disability compensation, if any, plaintiff was due after 16 February 1983; and Haigh found that plaintiff was not due any further compensation arising out of the August 1982 accident.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 602, 607, 616.\n3. Master and Servant \u00a7 96.5 (NCI3d|\u2014 workers\u2019 compensation \u2014 findings of fact \u2014supported by evidence\nThe findings of the full Industrial Commission in a workers\u2019 compensation action were supported by the evidence. The Court of Appeals is bound by the Industrial Commission\u2019s findings when they are supported by direct evidence or by reasonable inferences drawn from the record.\nAm Jur 2d, Workers\u2019 Compensation \u00a7 612.\n4. Master and Servant \u00a7 93 (NCI3d)\u2014 workers\u2019 compensation\u2014 Rule 701 motion \u2014discretion of court\nThe plaintiff in a workers\u2019 compensation action failed to demonstrate that the Industrial Commission abused its discretion in denying plaintiff\u2019s Rule 701 motion.\nAm Jur 2d, Workers\u2019 Compensation \u00a7 614.\nAppeal by employee/plaintiff from an Opinion and Award by the Full Industrial Commission entered 10 December 1991. Heard in the Court of Appeals 6 January 1993.\nPlaintiff sustained an injury to his back on 2 February 1978 arising out of and in the course of his employment. After surgery, his condition improved and he returned to work with some restrictions on 23 March 1982. On 18 August 1982, plaintiff injured his neck in the course of his employment.\nOn 30 April 1986, plaintiff\u2019s neck injury claim was heard by Deputy Commissioner Henry Burgwyn. Mr. Burgwyn left the Commission before entering a decision. The case was rescheduled for 15 June 1987 and was heard by Deputy Commissioner Scott M. Taylor. Prior to the newly scheduled hearing, the parties agreed to have the issues decided on the basis of the record and transcript of the 1986 hearing. On 25 November 1987, Deputy Commissioner Taylor entered an Opinion and Award finding that plaintiff suffered an injury as a result of an accident while in the course of his employment on 18 August 1982. Temporary total disability payments were ordered through 16 February 1983 and the matter was rescheduled for a determination of plaintiff\u2019s entitlement to compensation for any temporary total disability and permanent partial disability beyond 16 February 1983.\nOn 23 June 1988, Deputy Commissioner William L. Haigh presided over a second evidentiary hearing. At this hearing, the employee was the sole witness. The deposition of Dr. Robert H. Wilkins, taken on 17 October 1988, was also entered into evidence. On 3 February 1989, Deputy Commissioner Haigh entered an opinion denying plaintiff any further disability from and after 16 February 1983. Plaintiff appealed to the Full Commission and simultaneously filed a Rule 701 motion to present additional evidence to the Full Commission. On 3 April 1990, the Full Commission affirmed Deputy Commissioner Haigh\u2019s opinion but did not rule on the Rule 701 motion. Plaintiff appealed to the Court of Appeals.\nIn Ivey v. Fasco Industries, 101 N.C. App. 371, 399 S.E.2d 153 (1991), this Court reversed and remanded this case to the Full Commission with instructions to rule upon plaintiff\u2019s Rule 701 motion and to address any inconsistencies between the Taylor and Haigh opinions. Upon remand, the Full Commission denied plaintiff\u2019s Rule 701 motion and, without disturbing Deputy Commissioner Taylor\u2019s opinion, again affirmed Deputy Commissioner Haigh\u2019s opinion. From this decision, plaintiff appeals.\nReid, Lewis, Deese & Nance, by James R. Nance, Jr., for employee-appellant.\nMarvin Schiller for employer/carrier-appellees."
  },
  "file_name": "0123-01",
  "first_page_order": 151,
  "last_page_order": 155
}