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    "judges": [
      "Judges WYNN and McGEE concur."
    ],
    "parties": [
      "MICHAEL T. BESS, Plaintiff-Employee v. TYSON FOODS, INCORPORATED, SELF-INSURED, Defendant-Employer"
    ],
    "opinions": [
      {
        "text": "JOHN, Judge.\nPlaintiff appeals an Opinion and Award of the North Carolina Industrial Commission (the Commission), contending the Commission should have treated his permanent loss of the sense of taste and the sense of smell as two separate compensable injuries under G.S. \u00a7 97-31(24) (1991). We affirm the Commission.\nPertinent facts and procedural information are as follows: Plaintiff was injured in the course of employment with defendant when struck by a forklift and thrown against a concrete floor. Plaintiff\u2019s left ankle was fractured and he suffered multiple fractures of his facial skeleton, the latter requiring surgery. As a result either of the facial injury or the corrective surgery, plaintiff sustained damage to his olfactory organ causing permanent loss of the senses of taste and smell. Plaintiff subsequently returned to full employment with defendant.\nUpon hearing and order by a deputy commissioner and review by the full Commission, plaintiff was awarded benefits based upon a three percent permanent partial disability to his left foot, and also received $20,000 for \u201closs of an important organ.\u201d The latter amount was granted pursuant to N.C.G.S. \u00a7 97-31(24), which provides:\nIn case of the loss of or permanent injury to any important external or internal organ or part of the body for which no compensation is payable under any other subdivision of this section, the Industrial Commission may award proper and equitable compensation not to exceed twenty thousand dollars ($20,000).\nOur task in reviewing the decision of the Commission is twofold. First, we determine whether there is any competent evidence in the record to support the Commission\u2019s findings of fact; if so, we then must decide whether such findings are legally sufficient to support the Commission\u2019s conclusions of law. Pittman v. Thomas & Howard, 122 N.C. App. 124, 129, 468 S.E.2d 283, 286, disc. review denied, 343 N.C. 513, 472 S.E.2d 18 (1996). In the former regard, we must bear in mind that the Commission, and not this Court, adjudges the credibility of witnesses and assigns the weight to be given their testimony. Id.\nThe Commission found as a fact that plaintiff\u2019s loss of his senses of taste and smell was caused.by permanent damage to his olfactory organ. Competent evidence in the record supports this finding. Plaintiff\u2019s physician, Dr. Erwin R. Elber (Dr. Elber), testified by deposition that plaintiff\u2019s loss of the sense of smell was due entirely to damage to his olfactory organ, and stated in an 11 October 1993 letter introduced into evidence that \u201cthe loss of [plaintiff\u2019s] sense of taste is basically the result of his loss of sense of smell.\u201d Dr. Elber defined the olfactory organ as\nall the structures collectively concerned with the perception of odors comprising the olfactory epithelium, the olfactory nerve, the olfactory center, and the brain.\nThe physician further indicated that while loss of taste could also be due to damage to the lingual nerve, he did not know whether plaintiff\u2019s loss was due to such damage.\nCompetent evidence in the record therefore supports the Commission\u2019s finding that plaintiff\u2019s loss of the senses of taste and smell was attributable to damage to one organ \u2014 the olfactory organ. That finding likewise supports, under the terms of G.S. \u00a7 97-31(24), the Commission\u2019s conclusion of law that \u201cplaintiff sustained the permanent . . . loss of an important organ for which no compensation is payable under any other subdivision\u201d of the statute. See Pittman, 122 N.C. App. at 129, 468 S.E.2d at 286.\nWe note this Court has stated, \u201c[w]e believe the loss of sense of taste and smell is compensable as the loss of an important internal organ.\u201d Cloutier v. State, 57 N.C. App. 239, 245, 291 S.E.2d 362, 366, cert. denied, 306 N.C. 555, 294 S.E.2d 222 (1982) (emphasis added). While defendant maintains Cloutier has foreclosed a holding by this Court that loss of the senses of taste and smell may be separately compensated under G.S. \u00a7 97-31, see In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (where Court of Appeals has decided same issue, subsequent panel in different case is bound by that precedent unless it has been overturned by a higher court), we do not believe the case sub judice requires such a determination.\nIn sum, the Commission\u2019s pertinent finding of fact being supported by competent evidence and in turn supporting its applicable legal conclusion, the single award of $20,000 to plaintiff is affirmed.\nAffirmed.\nJudges WYNN and McGEE concur.",
        "type": "majority",
        "author": "JOHN, Judge."
      }
    ],
    "attorneys": [
      "Law Office of Keith M. Stroud, by Jerry W. Whitley, for plaintiff-appellant.",
      "McElwee & McElwee, by Karen Inscore McElwee, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "MICHAEL T. BESS, Plaintiff-Employee v. TYSON FOODS, INCORPORATED, SELF-INSURED, Defendant-Employer\nNo. COA96-137\n(Filed 18 March 1997)\nWorkers\u2019 Compensation \u00a7 246 (NCI4tli)\u2014 permanent loss of senses of taste and smell \u2014 attributable to olfactory organ \u2014 single injury\nThe Industrial Commission\u2019s finding that plaintiffs permanent loss of his senses of taste and smell was compensable as a single injury pursuant to N.C.G.S. \u00a7 97-31(24) was proper where the evidence indicated that defendant\u2019s loss of his senses of taste and smell was attributable to damage to one organ \u2014 the olfactory organ.\nAm Jur 2d, Damages \u00a7 275.\nLoss of enjoyment of life as distinct element or factor in awarding damages for bodily injury. 34 ALR4th 293.\nAppeal by plaintiff from Opinion and Award entered 12 October 1995 by the North Carolina Industrial Commission. Heard in the Court of Appeals 10 October 1996.\nLaw Office of Keith M. Stroud, by Jerry W. Whitley, for plaintiff-appellant.\nMcElwee & McElwee, by Karen Inscore McElwee, for defendant-appellee."
  },
  "file_name": "0698-01",
  "first_page_order": 736,
  "last_page_order": 738
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