{ "id": 11916972, "name": "HENRY ANDREWS, Employee, Plaintiff v. FULCHER TIRE SALES AND SERVICE, Employer; and UNITED STATES FIDELITY AND GUARANTY COMPANY, Carrier, Defendants", "name_abbreviation": "Andrews v. Fulcher Tire Sales & Service", "decision_date": "1995-11-07", "docket_number": "No. COA94-1416", "first_page": "602", "last_page": "607", "citations": [ { "type": "official", "cite": "120 N.C. App. 602" } ], "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": "298 S.E.2d 681", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "685" } ], "opinion_index": 0 }, { "cite": "307 N.C. 392", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562490 ], "year": 1983, "pin_cites": [ { "page": "399" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0392-01" ] }, { "cite": "186 S.E. 252", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1936, "pin_cites": [ { "page": "257", "parenthetical": "Commission constitutes special tribunal in compensation case and must perform judicial functions" } ], "opinion_index": 0 }, { "cite": "210 N.C. 312", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626165 ], "year": 1936, "pin_cites": [ { "page": "319-20", "parenthetical": "Commission constitutes special tribunal in compensation case and must perform judicial functions" } ], "opinion_index": 0, "case_paths": [ "/nc/210/0312-01" ] }, { "cite": "273 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "258" }, { "page": "259" } ], "opinion_index": 0 }, { "cite": "301 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569785 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "580" }, { "page": "581" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0561-01" ] }, { "cite": "139 S.E.2d 857", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1965, "pin_cites": [ { "page": "862-63" } ], "opinion_index": 0 }, { "cite": "263 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572007 ], "year": 1965, "pin_cites": [ { "page": "577" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0569-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-85", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "163 S.E. 569", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1932, "pin_cites": [ { "page": "570" } ], "opinion_index": 0 }, { "cite": "202 N.C. 500", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627293 ], "year": 1932, "pin_cites": [ { "page": "504" } ], "opinion_index": 0, "case_paths": [ "/nc/202/0500-01" ] }, { "cite": "408 S.E.2d 519", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "defining \"sufficient\"" } ], "opinion_index": 0 }, { "cite": "329 N.C. 787", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2557060, 2554055, 2556786, 2555379, 2555903 ], "year": 1991, "pin_cites": [ { "parenthetical": "defining \"sufficient\"" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0787-02", "/nc/329/0787-03", "/nc/329/0787-04", "/nc/329/0787-05", "/nc/329/0787-01" ] }, { "cite": "404 S.E.2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "884", "parenthetical": "defining \"sufficient\"" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 259", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520346 ], "year": 1991, "pin_cites": [ { "page": "262", "parenthetical": "defining \"sufficient\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0259-01" ] }, { "cite": "305 N.C. 296", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567798 ], "year": 1982, "pin_cites": [ { "parenthetical": "making factual correction only" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0296-01" ] }, { "cite": "285 S.E.2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "827", "parenthetical": "making factual correction only" } ], "opinion_index": 0 }, { "cite": "304 N.C. 670", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570404 ], "year": 1982, "pin_cites": [ { "page": "678", "parenthetical": "making factual correction only" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0670-01" ] }, { "cite": "425 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "457" }, { "page": "457" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 762", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525626 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "765" }, { "page": "765-66" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0762-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-88", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-83", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-22", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-86", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 571, "char_count": 11261, "ocr_confidence": 0.749, "pagerank": { "raw": 3.5239868329806506e-07, "percentile": 0.883956168873166 }, "sha256": "eb17139bd35d65d920a19f58d7929c3470967de6add62d0c333b6e39ec4bcf25", "simhash": "1:69df61822467607a", "word_count": 1819 }, "last_updated": "2023-07-14T16:17:04.771230+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge ARNOLD and Judge SMITH concur." ], "parties": [ "HENRY ANDREWS, Employee, Plaintiff v. FULCHER TIRE SALES AND SERVICE, Employer; and UNITED STATES FIDELITY AND GUARANTY COMPANY, Carrier, Defendants" ], "opinions": [ { "text": "GREENE, Judge.\nPursuant to N.C. Gen. Stat. \u00a7 97-86, Fulcher Tire Sales and Service and United States Fidelity and Guaranty Company (defendants) appeal from the Opinion and Award of the Industrial Commission (Commission), filed 3 August 1994, awarding Henry Andrews (plaintiff) $406 per week during the period of his disability, medical expenses and attorney fees.\nPlaintiff was employed as a mechanic, by Fulcher Tire Sales and Service (Fulcher). Plaintiff alleges that he was injured at work on 13 September 1991 and, it is not disputed in this appeal that he reported this injury to Fulcher, pursuant to N.C. Gen. Stat. \u00a7 97-22. Because there was a dispute regarding compensation, United States Fidelity and Guaranty Company (Fidelity), Fulcher\u2019s insurance carrier, requested a hearing, pursuant to N.C. Gen. Stat. \u00a7 97-83. In its appeal from the deputy commissioner\u2019s award, defendants requested alternatively that the Commission consider new evidence. In support of their motion, defendants submitted an affidavit from Chris Baggett, a private investigator, which stated that on several occasions from 28 April 1993, through 3 June 1993, he observed plaintiff \u201cwalking without a limp and in no apparent distress\u201d and driving automobiles and in one instance someone \u201cwho appeared to be\u201d plaintiff underneath a car.\nThe Commission denied defendants\u2019 request to consider new evidence and filed its Opinion and Award. It concluded that \u201cplaintiff [had] sustained an injury by accident arising out of and in the course of his employment\u201d and that plaintiff is \u201centitled to compensation for temporary total disability\u201d of $406 per week and payment of all his medical expenses arising out of the injury by accident. The Commission also approved \u201cattorney\u2019s fee in the amount of twenty-five percent of the compensation awarded.\u201d This fee was to be deducted by the defendants \u201cfrom the lump sum awarded to plaintiff.\u201d After the defendants filed notice of appeal, the Commission approved an additional award of attorney fees and costs pursuant to N.C. Gen. Stat. \u00a7 97-88 in a 9 November 1994 Order.\nIn support of its Opinion and Award, the Commission found as a fact that plaintiff sustained an injury by accident on 13 September 1991 and further found the following with regard to plaintiffs disability:\n6. As a result of this injury by accident, plaintiff was unable to perform his work duties for defendant-employer from September 14, 1991 through at least the date of the hearing on August 26, 1992.\n7. At the time of this injury, plaintiff operated a garage at his home. . . .\n8. . . . Following his injury, plaintiff performed some work at his garage within limitations, but the nature and amount of the work cannot be determined. His testimony to the contrary was not accepted as credible by the deputy commissioner, and the Full Commission declines to overrule that assessment. In any event, plaintiff would not have been able to perform work at the same level as before the injury due to the impairment from the injury. Accordingly, it is presumed his earnings from his garage were reduced after his injury.\nThe evidence in this record, relevant to the above findings of fact, reveals a stipulation that the plaintiff \u201chas a herniated disc at C4-5 and a bulging disc at 5-6.\u201d He was treated by Dr. Wilfong and Dr. Ballenger. Ballenger\u2019s notes, which are from the fall of 1991, indicate that plaintiff can sit down and stand up, but that plaintiff is in pain when he does so and that plaintiff was on complete bed rest for some time during the fall of 1991. Ballenger also prescribed many different pain medications for plaintiff during the fall of 1991. Wilfong\u2019s office notes indicate that plaintiff has a fairly significant disc bulging at 4-5 and is \u201cbeside himself in pain.\u201d In a 31 December 1991 letter to Ballenger, Wilfong states that plaintiff \u201cis . . . not able to function\u201d and that Wilfong has scheduled plaintiff for back surgery. Prior to the injury the plaintiff, in addition to his work with his employer worked part time in a garage behind his house. The plaintiff testified that since the injury he was unable to work. There was also testimony by private investigator Todd Goodson that, in August 1992, plaintiff was observed moving \u201cin a fluid [and] natural motion,\u201d leaning under the hoods of vehicles on two separate occasions, and \u201csquatting\u201d on another occasion.\nThe issues are whether (I) the Commission\u2019s finding that \u201cplaintiff sustained an injury by accident on 13 September 1991\u201d is supported by the evidence; (II) the Commission\u2019s finding of fact that plaintiff has been unable to perform work \u201cat the same level as before the injury\u201d is supported by the evidence; (III) the Commission should have considered defendants\u2019 evidence regarding plaintiff\u2019s disability; and (IV) the Commission had jurisdiction to enter its 9 November award of attorney fees.\nI\nDefendant argues that the witnesses who testified that plaintiff sustained his injury while working at Fulcher on 13 September were \u201cdisgruntled ex-employees of\u2019 Fulcher who made a \u201csuspicious cast of characters\u201d and that their \u201ctestimony should be construed against [plaintiff\u2019s credibility\u201d rendering the finding without support. This argument questions entirely the credibility of the witnesses, however, and we are bound by the Commission\u2019s determination of their credibility and the weight to be afforded their testimony. Russell v. Lowes Prod. Distrib., 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993).\nII\nThis Court is also bound by the findings entered by the Commission if they are supported by sufficient competent evidence. Walston v. Burlington Indus., 304 N.C. 670, 678, 285 S.E.2d 822, 827, reh\u2019g granted, 305 N.C. 296, \u2014 S.E.2d \u2014 (1982) (making factual correction only); Russell, 108 N.C. App. at 765-66, 425 S.E.2d at 457. The evidence is sufficient if it is such that a reasonable mind might accept as adequate to support the finding. 3 Arthur Larson & Lex K. Larson, The Law of Workmen\u2019s Compensation \u00a7 80.10(c) (1995); Garrett v. Overman, 103 N.C. App. 259, 262, 404 S.E.2d 882, 884, disc. rev. denied, 329 N.C. 787, 408 S.E.2d 519 (1991) (defining \u201csufficient\u201d); Aycock v. Cooper, 202 N.C. 500, 504, 163 S.E. 569, 570 (1932).\nThe defendants argue that there is not sufficient competent evidence in this record to support the findings of the Commission that the plaintiff was unable to work \u201cat the same level as before the injury.\u201d We disagree.\nThe only evidence relevant to this finding is the plaintiff\u2019s own testimony that he was unable to work after the injury and the language from the notes of Wilfong that the plaintiff was \u201cnot able to function\u201d after the injury. The testimony of the plaintiff with regard to his post-injury work ability was rejected by the Commission as not credible and thus cannot support the finding. The testimony of Wilfong that the plaintiff was \u201cunable to function,\u201d however, is such that a reasonable mind might accept as adequate to support a finding that the plaintiff was unable \u201cto perform work at the same level as before the injury.\u201d\nIII\nWe disagree with defendants\u2019 argument that the Commission erred in its final Opinion and Award because it did not consider defendants\u2019 new evidence, pursuant to N.C. Gen. Stat. \u00a7 97-85. Whether the Commission considers new evidence is a matter within its sound discretion. Hall v. Chevrolet Co., 263 N.C. 569, 577, 139 S.E.2d 857, 862-63 (1965). In determining whether to accept new evidence, the Commission must consider the relative prejudices to the parties, the reasons for not producing the evidence at the first hearing, \u201cthe nature of the testimony, and its probable effect upon the conclusion reached.\u201d Id. In this case, the new evidence, testimony by a private investigator, was the same type of evidence that defendants introduced at the first hearing. The testimony did not provide any new revelations regarding plaintiff\u2019s disability and thus would \u201cprobably not affect the outcome.\u201d Defendants\u2019 suffered no prejudice by the Commission\u2019s denial of their motion to consider the new evidence and thus, the Commission did not abuse its discretion.\nIV\nDefendants finally argue that its notice of appeal to this Court divested the Commission of jurisdiction to enter its 9 November 1994 Order which awarded plaintiff\u2019s request for attorney fees. We agree. Generally, an appeal suspends the lower tribunal\u2019s jurisdiction, pending the appeal. N.C.G.S. \u00a7 1-294 (1983); Lowder v. All Star Mills, Inc., 301 N.C. 561, 580, 273 S.E.2d 247, 258 (1981); see Hanks v. Southern Public Utils. Co., 210 N.C. 312, 319-20, 186 S.E. 252, 257 (1936) (Commission constitutes special tribunal in compensation case and must perform judicial functions). This general rule applies to an award of \u201cfees and costs\u201d which is entered subsequent to the appeal. Lowder, 301 N.C. at 581, 273 S.E.2d at 259. Once the appeal is complete, however, the Commission is again vested with the authority to determine an amount and to award attorney fees for work performed in furtherance of an appeal from a deputy commissioner to the Commission or an appeal from the Commission to this Court. N.C.G.S. \u00a7 97-88 (1991); Taylor v. J.P. Stevens Co., 307 N.C. 392, 399, 298 S.E.2d 681, 685 (1983). Because the defendants\u2019 notice of appeal was entered prior to the 9 November order, the Commission was without jurisdiction to enter that award and it is vacated. The issue of attorney fees is remanded to the Commission.\nAffirmed in part, vacated in part and remanded.\nChief Judge ARNOLD and Judge SMITH concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Kennedy W. Ward, P.A., by Kennedy W. Ward, for plaintiff - appellee.", "Ward and Smith, P.A., by S. McKinley Gray, III and William Joseph Austin, Jr., for defendant-appellants." ], "corrections": "", "head_matter": "HENRY ANDREWS, Employee, Plaintiff v. FULCHER TIRE SALES AND SERVICE, Employer; and UNITED STATES FIDELITY AND GUARANTY COMPANY, Carrier, Defendants\nNo. COA94-1416\n(Filed 7 November 1995)\n1. Workers\u2019 Compensation \u00a7 230 (NCI4th)\u2014 inability to work \u2014evidence supporting finding\nThe Industrial Commission\u2019s finding that plaintiff was unable to \u201cwork at the same level as before the injury\u201d was supported by a doctor\u2019s testimony that plaintiff was \u201cunable to function.\u201d\nAm Jur 2d, Workers\u2019 Compensation \u00a7 395.\n2. Workers\u2019 Compensation \u00a7 416 (NCI4th)\u2014 Commission\u2019s refusal to consider new evidence\nOn appeal of a deputy commissioner\u2019s award of benefits, the Industrial Commission did not err by refusing to consider defendants\u2019 new evidence consisting of the testimony of a private investigator that he observed plaintiff \u201cwalking without a limp and in no apparent distress and driving automobiles\u201d where this was the same type of evidence introduced by defendants at the first hearing.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 686, 687.\n3. Workers\u2019 Compensation \u00a7 103 (NCI4th)\u2014 order of attorney fees entered after notice of appeal \u2014 no jurisdiction of Industrial Commission\nDefendants\u2019 notice of appeal to the Court of Appeals divested the Industrial Commission of jurisdiction to enter its order granting plaintiff\u2019s request for attorney fees.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 56, 699, 724.\nAppeal by defendants from Opinion and Award for the Full Commission entered 3 August 1994. Heard in the Court of Appeals 2 October 1995.\nKennedy W. Ward, P.A., by Kennedy W. Ward, for plaintiff - appellee.\nWard and Smith, P.A., by S. McKinley Gray, III and William Joseph Austin, Jr., for defendant-appellants." }, "file_name": "0602-01", "first_page_order": 636, "last_page_order": 641 }