{ "id": 11914978, "name": "CHARLES R. ADAMS, Employee, Plaintiff-Appellee v. KELLY SPRINGFIELD TIRE COMPANY, Employee; TRAVELERS INSURANCE COMPANY, Carrier, Defendants-Appellants", "name_abbreviation": "Adams v. Kelly Springfield Tire Co.", "decision_date": "1996-09-03", "docket_number": "No. COA95-844", "first_page": "681", "last_page": "685", "citations": [ { "type": "official", "cite": "123 N.C. App. 681" } ], "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": "32 ALR2d 1447", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1991, "pin_cites": [ { "page": "(9)" } ], "opinion_index": 0 }, { "cite": "456 S.E.2d 847", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "850", "parenthetical": "discussing presumptions of disability" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 624", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11920169 ], "year": 1995, "pin_cites": [ { "page": "627", "parenthetical": "discussing presumptions of disability" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0624-01" ] }, { "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. 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App. 593", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555207 ], "year": 1976, "pin_cites": [ { "page": "596" } ], "opinion_index": 0, "case_paths": [ "/nc-app/30/0593-01" ] }, { "cite": "296 S.E.2d 456", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "458" } ], "opinion_index": 0 }, { "cite": "307 N.C. 99", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560726 ], "year": 1982, "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0099-01" ] }, { "cite": "380 S.E.2d 550", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "551-52" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 541", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527544 ], "year": 1989, "pin_cites": [ { "page": "543" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0541-01" ] }, { "cite": "266 S.E.2d 696", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "697-98" } ], "opinion_index": 0 }, { "cite": "47 N.C. App. 196", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548926 ], "year": 1980, "pin_cites": [ { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/nc-app/47/0196-01" ] } ], "analysis": { "cardinality": 556, "char_count": 9475, "ocr_confidence": 0.748, "pagerank": { "raw": 2.718899536846965e-07, "percentile": 0.830019240503983 }, "sha256": "68142925467c67cc03682ba4f71d0cfc9b27368c9a37eda352f24a79f85304ba", "simhash": "1:033c672a8e7b6847", "word_count": 1532 }, "last_updated": "2023-07-14T18:05:31.519627+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge ARNOLD and Judge MARTIN, John C., concur." ], "parties": [ "CHARLES R. ADAMS, Employee, Plaintiff-Appellee v. KELLY SPRINGFIELD TIRE COMPANY, Employee; TRAVELERS INSURANCE COMPANY, Carrier, Defendants-Appellants" ], "opinions": [ { "text": "SMITH, Judge.\nThis appeal is flawed by numerous and substantial errors of appellate procedure. Our Rules of Appellate Procedure are mandatory and subject an appeal to dismissal. N.C.R. App. P. 10 (1996); Marsico v. Adams, 47 N.C. App. 196, 197, 266 S.E.2d 696, 697-98 (1980). Defendants have brought forward eleven assignments of error (AOE), none of which state the page of the record where the alleged error occurred. An assignment of error must \u201cdirect[] the attention of the appellate court to the particular error about which the question is made, with clear and specific record or transcript references.\u201d N.C.R. App. P. 10(c)(1) (emphasis added).\nDefendants\u2019 brief fares no better. Following defendants\u2019 argument (question) headings, assignments of error appear without any reference whatsoever to the record or transcript. Assignments of error must be \u201cidentified by their numbers and by the pages at which they appear in the printed record on appeal.\u201d N.C.R. App. P. 28(b)(5). Despite these errors we do not elect to dismiss. See Symons Corp. v. Insurance Co. of North America, 94 N.C. App. 541, 543, 380 S.E.2d 550, 551-52 (1989).\nWe are asked to review this appeal from the opinion and award of the Full Commission (Commission) based on defendants\u2019 ten assignments of error (AOE\u2019s 1-10), which address Findings of Fact Nos. 5, 6, 9, 10, 11, 12, 13, 14, 15, 16. All ten of these findings of fact are error, defendant contends, because they are \u201ccontrary to the greater weight of competent evidence in the record.\u201d (Emphasis added.) This is not the standard of review we apply to opinions and awards rendered by the Industrial Commission. This Court\u2019s review is limited to a consideration of whether there was any competent evidence to support the Commission\u2019s findings of fact and whether these findings of fact support the Commission\u2019s conclusions of law. McLean v. Roadway Express, 307 N.C. 99, 102, 296 S.E.2d 456, 458 (1982).\nDefendants have apparently confused the civil standard of proof, sometimes referred to as \u201cby the greater weight of the evidence,\u201d with the standard applied to review of opinions arising from the Commission. See, e.g., In re Wadsworth, 30 N.C. App. 593, 596, 227 S.E.2d 632, 633, disc. review denied, 291 N.C. 175, 229 S.E.2d 692 (1976). The \u201cany competent evidence standard\u201d is a longstanding rule, which provides that findings of fact made by the Commission are conclusive on appeal if supported by any competent evidence. Hansel v. Sherman Textiles, 304 N.C. 44, 49, 283 S.E.2d 101, 104 (1981). This is so even if there is evidence which would support a finding to the contrary. Id. Hence, on appeal, this Court is limited to two inquiries: (1) whether any competent evidence exists before the Commission to support its findings of fact; and (2) whether the findings of fact of the Commission justify its legal conclusions and decision. Id.\nDefendants have thus failed to state a legal basis upon which this Court can properly review the Full Commission\u2019s findings of fact, or the evidentiary basis thereof. Furthermore, defendants\u2019 characterization of the Full Commission\u2019s findings of fact, as being \u201ccontrary to the greater weight of the evidence,\u201d does not comport with our Supreme Court\u2019s mandate that the Industrial Commission and the courts are to construe the Workers\u2019 Compensation Act liberally in favor of the injured worker. Cates v. Hunt Construction Co., 267 N.C. 560, 563, 148 S.E.2d 604, 607 (1966). Applying the \u201cgreater weight standard\u201d instead of the \u201cany competent evidence standard\u201d would not favor the worker and would be in discord with settled law regarding the proper standard of review. Thus, all of defendants\u2019 assignments of error relating to the Commission\u2019s findings of fact are deemed abandoned. Bustle v. Rice, 116 N.C. App. 658, 659, 449 S.E.2d 10, 11 (1994).\nThe remaining assignment of error, No. 11, reads as follows: \u201cThe Full Commission\u2019s finding that defendants shall pay plaintiff temporary total disability compensation commencing on December 4, 1992, and continuing until plaintiff returns to work or until further orders of the Industrial Commission and Item Number 1 of the Award. Conclusion of Law Number 1 of the Opinion and Award for the Full Commission. Record pp.[we note the page number(s) are missing.]\u201d It seems apparent, though, that defendants intended for AOE No. 11 to address an error of law by the Commission.\nStanding alone, as AOE No. 11 must, it is manifest that this assignment is also fatally flawed. An assignment of error must independently \u201cstate plainly and concisely and without argumentation the basis upon which error is assigned.\u201d Kimmel v. Brett, 92 N.C. App. 331, 334, 374 S.E.2d 435, 436 (1988); N.C.R. App. P. 10(c). Examples of the proper way to state assignments of error in the record on appeal can be found in Appendix C, Table 4, of our appellate rules. Not only does AOE No. 11 purport to address a \u201cfinding\u201d of the Full Commission, it does not in and of itself point out the legal error it purports (we think) to address.\nWe assume, for the sake of this discussion, that defendants\u2019 preamble to its listed AOE\u2019s was meant to give substance to AOE No. 11. That preamble states: \u201cDefendants-Appellants assign the following as error and contrary to the greater weight of competent evidence in the record.\u201d As previously addressed in this opinion, we do not recognize such a standard of review from the Industrial Commission. Thus, ascribing this standard to a conclusion of law made by the Full Commission is not \u201ca sufficient basis upon which to assign error.\u201d Kimmel, 92 N.C. App. at 334, 374 S.E.2d at 437. This assignment is therefore overruled.\nNotwithstanding the stark errors committed by defendant in presenting this appeal, we exercise our discretion, pursuant to N.C.R. App. P. 2, to suspend the rules and decide this case on the merits. Defendants argue in their brief that \u201c[p]laintiff has failed to prove he was disabled after December 4, 1992 within the meaning of the North Carolina Workers\u2019 Compensation Act and most recent interpretative case law.\u201d We disagree.\nBoth parties cite Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993), as setting forth a methodology by which a worker may prove that he is disabled within the meaning of our Workers\u2019 Compensation Act (Act). But see Moore v. Davis Auto Service, 118 N.C. App. 624, 627, 456 S.E.2d 847, 850 (1995) (discussing presumptions of disability). We note that Russell provides for at least four separate and independent ways by which an employee may demonstrate that he is disabled. Russell, 108 N.C. App. at 765, 425 S.E.2d at 457. Disability is defined by the Act as \u201cthe impairment of the injured employee\u2019s earning capacity [as a result of a workplace injury] rather than physical disablement.\u201d Id.; see N.C. Gen. Stat. \u00a7 97-2(9) (1991).\nWe have reviewed the record in light of Russell, and conclude that plaintiff presented plenary competent evidence proving his inability to earn the same wages he earned prior to his injury. Competent evidence was presented to the effect that, although plaintiff is capable of some work, most employment would be futile due to plaintiff\u2019s pre-existing conditions, i.e., his lack of education, manic depressive disorder, limitations on lifting due to his back and lack of rehabilitative success. The evidence pertinent to these factors was duly noted and accounted for in the Full Commission\u2019s findings of fact. The Full Commission\u2019s findings of fact were based on competent evidence, and the conclusions of law derived therefrom were correct. Thus, the instant opinion and award of the Full Commission is\nAffirmed.\nChief Judge ARNOLD and Judge MARTIN, John C., concur.", "type": "majority", "author": "SMITH, Judge." } ], "attorneys": [ "Cranfill, Sumner & Hartzog, L.L.P., by Samuel H. Poole, Jr., and Nicholas P. Valaoras, for defendant appellants.", "Douglas E. Ganders for plaintiff appellee." ], "corrections": "", "head_matter": "CHARLES R. ADAMS, Employee, Plaintiff-Appellee v. KELLY SPRINGFIELD TIRE COMPANY, Employee; TRAVELERS INSURANCE COMPANY, Carrier, Defendants-Appellants\nNo. COA95-844\n(Filed 3 September 1996)\n1. Workers\u2019 Compensation \u00a7 452 (NCI4th)\u2014 review of Commission award \u2014 standard of proof\nDefendants failed to state a legal basis upon which the Court of Appeals could properly review the Industrial Commission\u2019s findings where they confused the civil standard of proof, \u201cby the greater weight of the evidence,\u201d with the standard applied to review of opinions arising from the Commission, \u201cby any competent evidence.\u201d\nAm Jur 2d, Appellate Review \u00a7 670.\n2. Workers\u2019 Compensation \u00a7 252 (NCI4th)\u2014 inability to earn same wages \u2014 sufficiency of evidence \u2014 award of temporary total disability proper\nPlaintiff presented plenary competent evidence proving his inability to earn the same wages he earned prior to his injury, and such evidence was sufficient to support the Commission\u2019s award of temporary total disability compensation, where the evidence was to the effect that, although plaintiff was capable of some work, most employment would be futile due to plaintiff\u2019s preexisting conditions, including his lack of education, manic depressive disorder, limitation on lifting due to his back, and lack of rehabilitative success.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 380-382.\nPleading aggravation of pre-existing conditions. 32 ALR2d 1447.\nAppeal by defendants from opinion and award entered by the North Carolina Industrial Commission on 7 June 1995. Heard in the Court of Appeals 27 March 1996.\nCranfill, Sumner & Hartzog, L.L.P., by Samuel H. Poole, Jr., and Nicholas P. Valaoras, for defendant appellants.\nDouglas E. Ganders for plaintiff appellee." }, "file_name": "0681-01", "first_page_order": 715, "last_page_order": 719 }