{ "id": 9189829, "name": "JOSEPH HUMMEL, Plaintiff v. THE UNIVERSITY OF NORTH CAROLINA and THE UNIVERSITY OF NORTH CAROLINA d/b/a THE UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Defendants", "name_abbreviation": "Hummel v. University of North Carolina", "decision_date": "2003-02-18", "docket_number": "No. COA02-398", "first_page": "108", "last_page": "119", "citations": [ { "type": "official", "cite": "156 N.C. App. 108" } ], "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": "159 S.E.2d 28", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "272 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574296 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/272/0680-01" ] }, { "cite": "77 S.E.2d 716", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "238 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8606972 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/238/0303-01" ] }, { "cite": "159 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "361", "parenthetical": "quoting In re Custody of Gupton, 238 N.C. 303, 77 S.E.2d 716 (1953)" } ], "opinion_index": 0 }, { "cite": "273 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574455 ], "year": 1968, "pin_cites": [ { "page": "76", "parenthetical": "quoting In re Custody of Gupton, 238 N.C. 303, 77 S.E.2d 716 (1953)" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0071-01" ] }, { "cite": "520 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "87" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 319", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240624 ], "year": 1999, "pin_cites": [ { "page": "324" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0319-01" ] }, { "cite": "560 S.E.2d 800", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 285", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220177, 219997, 220157, 220014 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0285-03", "/nc/355/0285-01", "/nc/355/0285-02", "/nc/355/0285-04" ] }, { "cite": "551 S.E.2d 486", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "491" }, { "page": "491" }, { "page": "491" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 584", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11439001 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "591" }, { "page": "591" }, { "page": "590" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0584-01" ] }, { "cite": "374 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "613" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 478", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527201 ], "year": 1988, "pin_cites": [ { "page": "482" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0478-01" ] }, { "cite": "304 S.E.2d 762", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "63 N.C. App. 354", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525105 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/63/0354-01" ] }, { "cite": "421 S.E.2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "107 N.C. App. 536", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527769 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/107/0536-01" ] }, { "cite": "532 S.E.2d 522", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 108", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132282, 131930, 132234, 132199 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0108-02", "/nc/350/0108-04", "/nc/350/0108-03", "/nc/350/0108-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "439 S.E.2d 142", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "335 N.C. 552", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2527817, 2527285, 2532185, 2527482, 2528830 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/335/0552-02", "/nc/335/0552-04", "/nc/335/0552-01", "/nc/335/0552-05", "/nc/335/0552-03" ] }, { "cite": "433 S.E.2d 798", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1993, "pin_cites": [ { "page": "801" }, { "page": "800" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 833", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524297 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "839" }, { "page": "837" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0833-01" ] }, { "cite": "560 S.E 2d 800", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 1 }, { "cite": "355 N.C. 285", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220177, 219997, 220157, 220014 ], "year": 2002, "opinion_index": 1, "case_paths": [ "/nc/355/0285-03", "/nc/355/0285-01", "/nc/355/0285-02", "/nc/355/0285-04" ] }, { "cite": "551 S.E.2d 486", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "492" } ], "opinion_index": 1 }, { "cite": "145 N.C. App. 584", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11439001 ], "year": 2001, "pin_cites": [ { "page": "593" } ], "opinion_index": 1, "case_paths": [ "/nc-app/145/0584-01" ] } ], "analysis": { "cardinality": 1003, "char_count": 26088, "ocr_confidence": 0.742, "pagerank": { "raw": 2.447399508025178e-07, "percentile": 0.8037099846361699 }, "sha256": "a01c4d2521d216f64489dec7b3b060242c8e4ba420363913a750a0c0fc62b55a", "simhash": "1:0d41ed8bda0b46c7", "word_count": 4127 }, "last_updated": "2023-07-14T21:05:49.893248+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McGEE concurs.", "Judge HUDSON concurs in the result in a separate opinion." ], "parties": [ "JOSEPH HUMMEL, Plaintiff v. THE UNIVERSITY OF NORTH CAROLINA and THE UNIVERSITY OF NORTH CAROLINA d/b/a THE UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Defendants" ], "opinions": [ { "text": "EAGLES, Chief Judge.\nJoseph J. Hummel (\u201cplaintiff\u2019) appeals from an opinion and award by the North Carolina Industrial Commission ordering the University of North Carolina at Chapel Hill (\u201cdefendant\u201d) to pay plaintiff $50,000. Defendant cross-appeals from this opinion and award. After careful review of the record and briefs, we affirm the Industrial Commission\u2019s opinion and award and deny defendant\u2019s cross-appeal.\nPlaintiff was a wrestler on defendant\u2019s collegiate wrestling team. He joined the wrestling team as a \u201cwalk-on\u201d participant during his freshman year in college in 1994. Plaintiff had been ranked as the first or second place wrestler in his weight class in the state of New Jersey throughout his senior year in high school. Plaintiff wrestled on the university intercollegiate team during his freshman and sophomore years in college.\nOn 6 July 1996, plaintiff was lifting weights at the Student Recreation Center on the campus of UNC-Chapel Hill. Plaintiff was severely injured when a cable came loose on a \u201clat-pull\u201d machine plaintiff was using. Because of the loose cable, a weight bar hit plaintiff\u2019s head forcefully at a great speed. The weight bar itself was not heavy, but was linked to weights of between 285 and 300 pounds. The weight machine plaintiff was using had been maintained negligently. Plaintiff described the accident as follows:\nAnd when I pulled down, the cable pulled out, and I hit myself on the head. I was knocked unconscious, had a little bit of bleeding at my head. My roommate, workout partner, drove me home, and I slept for about twenty-three or twenty-four hours straight. They kind of left and went and did their thing and came back, and I was still sleeping. And at that time they woke me up and decided it was time that I go to the doctor.\nOn 10 July 1996, plaintiff reported his accident to a physical therapist at UNC-Chapel Hill\u2019s Wrestling Camp. Plaintiffs regular physician, Dr. Greg Tuttle, was out of town at the Olympics in Atlanta when plaintiff was injured. Dr. Tuttle suggested that plaintiff see a physician at the Student Health Center, which plaintiff did on 23 July 1996. Plaintiff complained of headache, dizziness, nausea, and tinnitus. The Student Health physician diagnosed plaintiff with post-concussive syndrome. Upon his return, Dr. Tuttle examined plaintiff and concurred in that diagnosis. Dr. Tuttle described post-concussive syndrome as a \u201closs of normal brain function or regulation of the brain following some type of trauma where there may be increased pressure within the brain or auto-regulation of the brain.\u201d\nPlaintiffs injury and subsequent headaches caused him to sit out the 1996-1997 wrestling season with a medical \u201credshirt.\u201d Dr. Alan Finkel of the UNC-CH Headache Clinic began seeing plaintiff as a result of his headache symptoms in November 1996. Dr. Finkel found some improvement in plaintiffs headache symptoms, but found that plaintiff suffered from headaches when he attempted to run or when he lifted weights. Dr. Finkel was unsure how long plaintiff would be required to forgo participation in the University\u2019s wrestling program or plaintiff\u2019s normal exercise routine.\nPlaintiff returned to his home for Christmas break in 1996. While at home in New Jersey, plaintiff\u2019s old wrestling coach visited him. On one occasion, the coach grabbed plaintiff in a playful manner on the back of plaintiff\u2019s neck. As a result of this light contact, plaintiff states that he \u201c[got] woozy or dizzy or swimmy-headed and [had] a headache for probably a week or two after that [incident] continuously.\u201d\nUpon his return to North Carolina in January 1997, plaintiff underwent an MRI. This test showed that plaintiff was suffering from multiple mild degenerative changes and disk bulges in his cervical spine. Plaintiff\u2019s symptoms improved over the next few months, and he was cleared to wrestle in the 1997-1998 season. Plaintiff wrestled in twenty matches during that season and was knocked unconscious in six of those matches. Plaintiff was hit in the back of his head during a 20 February 1998 match at North Carolina State University. As a result of the hit, plaintiff suffered a concussion. Plaintiff also decided, based upon his doctors\u2019 advice, to end his wrestling career. At the time plaintiff decided to stop wrestling, he was ranked twelfth nationally and ranked first in the Atlantic Coast Conference (\u201cACC\u201d). Plaintiff missed the ACC and National Collegiate Athletic Association (\u201cNCAA\u201d) Tournaments because of his injuries. Beginning in March 1998, plaintiff complained of having \u201cracing thoughts\u201d and irritability, which Dr. Finkel diagnosed as hypomania.\nPlaintiff began medical school at UNC-Chapel Hill in the fall of 1998. In November 1998, plaintiff experienced incontinence several times while lifting weights. Plaintiff testified that he has lost control of his bladder and urinated on himself in public several times, as well as suffering from \u201cimpact-induced seizures.\u201d Dr. Tuttle testified that plaintiff\u2019s symptoms were related to his post-concussive brain injury.\nAn MRI in December 1998 showed additional degeneration of plaintiff\u2019s cervical spine. Plaintiff continued to have headaches after vigorous exercise or activity. A spinal tap procedure in February 1999 revealed that plaintiff\u2019s cerebral spinal fluid pressure was elevated. After a second spinal tap procedure confirmed that plaintiff\u2019s pressure was elevated, he began to take medication for that condition.\nWhen plaintiff graduated from high school and throughout college, he intended to become a surgeon. Plaintiff began his surgical rotations during his third year of medical school. Plaintiff received honors in all three of his surgical rotations (orthopedics, pediatric surgery and plastic surgery) and was encouraged by his professors to become a surgeon. However, plaintiff did not pursue a specialization in surgery:\nDuring the surgery \u2014 some of [them are] particularly long. I was on one surgery that was about twelve hours. I\u2019m \u2014 I have a difficult time with pain in my neck, standing kind of in the position that you do surgery in. For some of the shorter surgeries ... I tolerated those all right. But for the majority of surgeries, which range . . . from two to about six hours . . . my neck gets this kind of dull pain, and it heads down in kind of both of my shoulders and makes my hands and fingers tingle a little bit. I often get headaches . . . during those times as well. So those things kind of discouraged me from pursuing surgery.\nBecause of the discomfort plaintiff experienced during surgical procedures, plaintiff felt that surgery was no longer an option for him as a career. Plaintiff decided to specialize in family medicine rather than surgery.\nPlaintiff initiated a lawsuit against defendant pursuant to the North Carolina Tort Claims Act. Plaintiff served the first set of interrogatories on defendant on 5 August 1999. Defendant failed to answer these interrogatories despite an order from the deputy commissioner to do so. Plaintiff moved for sanctions as a result of diefend-ant\u2019s failure to answer interrogatories four times. As a sanction, defendant\u2019s responsive pleading was stricken, and defendant was ordered to pay $600 in plaintiffs attorney fees. On 5 March 2000, a deputy commissioner issued an order awarding plaintiff $500,000. Defendant appealed to the full Industrial Commission, which reduced plaintiff\u2019s award to $50,000. From this opinion and award, both parties appeal.\nI.\nPlaintiff argues that the full Industrial Commission committed reversible error in reducing plaintiff\u2019s award from $500,000 to $50,000 because it disregarded expert testimony on plaintiffs behalf. We disagree.\nPlaintiff\u2019s first argument concerns the standard of review applicable to a deputy commissioner\u2019s opinion in a Tort Claims Act hearing. Plaintiff questions the full Industrial Commission\u2019s ability to disregard the findings of fact included in the deputy commissioner\u2019s opinion. Specifically, plaintiff claims that the Industrial Commission disregarded the expert opinions offered by plaintiff\u2019s witnesses and formed its own expert opinions. This Court can review the decision of the full Industrial Commission \u201cfor errors of law only under the same terms and conditions as govern appeals in ordinary civil actions, and the findings of fact of the Commission shall be conclusive if there is any competent evidence to support them.\u201d G.S. \u00a7 143-293 (2001). If the full Commission applied an incorrect standard of review to the deputy commissioner\u2019s findings, this Court could reject the full Commission\u2019s findings and conclusions as errors of law.\nThis Court has compared the powers available to the full Industrial Commission on an appeal under the Tort Claims Act as opposed to an appeal under the Workers\u2019 Compensation Act. The full Commission\u2019s review of a Tort Claims case is not as highly structured as the review of a Workers\u2019 Compensation case. See Brewington v. N.C. Dept. of Correction, 111 N.C. App. 833, 433 S.E.2d 798, disc. review denied, 335 N.C. 552, 439 S.E.2d 142 (1993). When hearing an appeal in a Workers\u2019 Compensation case, the full Commission \u201cshall review the award, and, if good ground be shown therefor, reconsider the evidence, receive further evidence, rehear the parties or their representatives, and, if proper, amend the award.\u201d G.S. \u00a7 97-85 (2001) (emphasis added). This statute has been interpreted to mean that the deputy commissioner\u2019s findings of fact are not binding nor conclusive on appeal in Workers\u2019 Compensation cases. See Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998), reh\u2019g denied, 350 N.C. 108, 532 S.E.2d 522 (1999); Keel v. H & V, Inc., 107 N.C. App. 536, 421 S.E.2d 362 (1992). In a Workers\u2019 Compensation case, the full Commission can review determinations of the deputy commissioner on weight of evidence and credibility of witnesses. See Pollard v. Krispy Waffle, 63 N.C. App. 354, 304 S.E.2d 762 (1983). In Workers\u2019 Compensation cases, \u201c[i]t is the duty and responsibility of the full Commission to make detailed findings of fact and conclusions of law with respect to every aspect of the case before it.\u201d Joyner v. Rocky Mount Mills, 92 N.C. App. 478, 482, 374 S.E.2d 610, 613 (1988).\nAlternatively, the language of G.S. \u00a7 143-292 does not require the Industrial Commission to issue its own findings of fact or conclusions of law when reviewing Tort Claims cases:\nSuch appeal, when so taken, shall be heard by the Industrial Commission, sitting as a full Commission, on the basis of the record in the matter and upon oral argument of the parties, and said full Commission may amend, set aside, or strike out the decision of the hearing commissioner and may issue its own findings of fact and conclusions of law.\nG.S. \u00a7 143-292 (2001). G.S. \u00a7 143-292 allows but-does not require the full Commission to make its own factual determinations and weigh the evidence. Therefore, the Tort Claims Act appears to give the Commission as much freedom as the Workers\u2019 Compensation Act. The full Commission may disregard the findings of the deputy commissioner and substitute its own factual findings on appeal.\nOne case, in contravention of the Tort Claims Act, contained language that stated: \u201c[T]he responsibility of weighing the credibility of the witnesses lies solely with the hearing commissioner.\u201d Brewington v. N.C. Dept. of Correction, 111 N.C. App. 833, 839, 433 S.E.2d 798, 801 (1993). However, Brewington is easily distinguished from the present case. In Brewington, the full Industrial Commission adopted the decision and order of the deputy commissioner as its own opinion. Brewington, 111 N.C. App. at 837, 433 S.E.2d at 800. Therefore, in Brewington, the weighing of the evidence was delegated to the deputy commissioner because the full Commission chose not to exercise its ability to amend, set aside, or strike out the decision of the hearing commissioner and issue its own findings of fact. See id., G.S. \u00a7 143-292.\nAdditionally, the statement from Brewington has been found to be dicta that is not binding precedent. See Fennell v. N.C. Dep\u2019t of Crime Control & Pub. Safety, 145 N.C. App. 584, 591, 551 S.E.2d 486, 491 (2001), cert. denied, 355 N.C. 285, 560 S.E.2d 800 (2002). The express language of G.S. \u00a7 143-292 allows the full Commission to make its own findings of fact. See Fennell, 145 N.C. App. at 591, 551 S.E.2d at 491. \u201c[T]he Commission is the ultimate fact-finder on appeal and is authorized to make findings and conclusions contrary to those made by the deputy commissioner.\u201d Fennell, 145 N.C. App. at 590, 551 S.E.2d at 491 (quoting McGee v. N.C. Dep\u2019t of Revenue, 135 N.C. App. 319, 324, 520 S.E.2d 84, 87 (1999)).\nHere, the full Commission decided not to allow plaintiff to collect the amount of $500,000 awarded by the deputy commissioner. Instead, the Commission reduced the amount of plaintiff\u2019s award to $50,000. The Commission was not bound to accept the expert testimony offered by plaintiff on the valuation of plaintiffs future income merely because it formed part of the deputy commissioner\u2019s opinion and award. We hold that the full Commission appropriately reviewed the deputy commissioner\u2019s findings of fact and chose to issue its own findings of fact in compliance with G.S. \u00a7 143-292. In addition, the Commission\u2019s conclusions of law were supported by its findings of fact. The full Commission found that the economic evidence from Dr. Albrecht regarding plaintiff\u2019s diminished future earning capacity was not based upon credible assumptions about plaintiff\u2019s future earnings or disability. However, the Commission did find that plaintiff had presented evidence of pain and suffering and mental anguish stemming from the accident in July 1996. There was no evidence about past or future medical expenses. Plaintiff also \u201cestablishfed] a period of temporary impairment for the period from July 1996 to January 1997 which resulted from the July 1996 injury.\u201d This finding supports the Commission\u2019s award of $50,000 for plaintiff\u2019s \u201cphysical pain, mental anguish, impairment, and other damage.\u201d Contrary to plaintiff\u2019s argument, the Industrial Commission has not proffered its own medical opinion as to the causation of plaintiff\u2019s injury. Instead the Commission found that \u201cft]here is no credible evidence that plaintiff\u2019s cumulative condition, let alone that directly associated with his July 1996 injury, would prevent plaintiff from pursuing a career in surgery.\u201d To support this finding of fact, the Commission cited evidence presented regarding plaintiff\u2019s excellent scores in his surgical rotations, the encouragement he received from his professors to pursue surgery as a career, and his continued high academic performance in medical school. The Industrial Commission has judged the credibility of the expert medical and economic witnesses in combination with the remaining evidence and found that the testimony presented does not support an award of $500,000 for future loss of earning capacity. Plaintiff\u2019s first assignment of error is overruled.\nII.\nPlaintiff next assigns error to the full Commission\u2019s opinion based upon the \u201claw of the land\u201d clause in the North Carolina Constitution. Plaintiff argues that the Commission raised facts and issues which were not raised by defendant and deprived plaintiff the right to be heard upon those issues. We disagree.\nThe North Carolina Constitution provides:\nNo person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land.\nN.C. Con. Art. I, \u00a7 19. Plaintiff states that he was deprived of his rights contrary to the law of the land because the full Commission formed its own medical opinions contrary to the only medical expert testimony offered and did not give plaintiff an opportunity to present evidence contrary to the Commission\u2019s opinion. This assignment of error has no merit.\nPlaintiff correctly asserted that \u201cwhere the claim or defense turns upon a factual adjudication, the constitutional right of the litigant to an adequate and fair hearing requires that he be apprised of all the evidence received by the court and given an opportunity to test, explain or rebut it.\u201d Shepherd v. Shepherd, 273 N.C. 71, 76, 159 S.E.2d 357, 361 (1968) (quoting In re Custody of Gupton, 238 N.C. 303, 77 S.E.2d 716 (1953)). Here, plaintiff had an adequate and fair hearing on all the evidence presented in this case. Plaintiffs assignment of error does not point out with particularity what he characterizes as inappropriate evidence relied on by the full Commission to form its conclusions of law. Instead, plaintiff takes issue with the Commission\u2019s conclusions that were based on evidence the plaintiff introduced. Defendant did not present any evidence at the hearing and defendant\u2019s responsive pleading had been stricken as a sanction. Here, it cannot be said that new or surprising evidence was sprung upon plaintiff in violation of the law of the land. Instead, plaintiff had access to all of the evidence presented on his behalf. For this reason, the full Commission\u2019s opinion did not violate the North Carolina Constitution. This assignment of error is overruled.\nIII.\nPlaintiff further argues that the Industrial Commission committed reversible error by failing to find that plaintiff was permanently injured when defendant stipulated to that fact before the hearing by the deputy commissioner. We disagree.\nPlaintiff correctly states that both parties stipulated that the 7 July 1996 accident \u201cproximately caused the plaintiff to suffer severe and permanent injuries.\u201d However, the Commission also stated that it did not find \u201cthat plaintiff has any permanent diagnosis for these conditions that was significantly caused by the July 1996 injury, that plaintiff would not have sustained these same conditions absent the injury of July 1996, or that these conditions were permanently disabling.\u201d The full Commission\u2019s finding that plaintiff had no disability means that he had not proven a loss of wage earning capacity. It was within the full Commission\u2019s discretion to find that plaintiff failed to prove loss of future income despite his permanent injury. Although a stipulation had been entered, plaintiff still bore the burden of proving his damages:\nNo judgment by default shall be entered against the State of North Carolina or an officer in his official capacity or agency thereof unless the claimant establishes his claim or right to relief by evidence.\nG.S. \u00a7 1A-1, Rule 55(f) (2001). The full Commission specifically found unconvincing plaintiffs evidence on reduced future earning capacity. The full Commission\u2019s findings of fact support its conclusions of law. Therefore, the full Commission did not err by failing to rule that plaintiff deserved compensation for reduced future earning capacity. This assignment of error is overruled.\nIV.\nPlaintiff argues that the Industrial Commission committed reversible error by reducing plaintiffs award based upon future earning capacity. Plaintiff contends that defendant did not offer any evidence to contradict plaintiffs evidence and that the award of $500,000 by the deputy commissioner should stand. We disagree.\nEven when the opposing party offers no evidence to contradict that evidence offered by plaintiff, the Industrial Commission may choose to find facts in contradiction to the evidence presented by plaintiff. The Industrial Commission has the responsibility to weigh the evidence presented and determine the credibility of witness testimony. Here, defendant\u2019s responsive pleading was stricken as a sanction. Therefore the only evidence of damages was the plaintiff\u2019s request for the full amount available to him as a result of defendant\u2019s negligence under the Tort Claims Act, which was $500,000. Plaintiff also presented evidence regarding his pain and suffering as a result of the accident, in addition to expert testimony on plaintiff\u2019s loss of future earning capacity. While the Commission found plaintiff\u2019s testimony about his physical impairment from July 1996 to January 1997 to be credible, it specifically did not find the evidence regarding his future lost earnings to be credible. Since the determination of evidence credibility is within the power of the Industrial Commission according to the Tort Claims Act, the Commission did not err in its decision not to award plaintiff damages for future loss of earnings. This assignment of error is overruled.\nV.\nDefendant cross-appeals the opinion and award of the full Commission. Defendant contends that the Commission erred in awarding plaintiff $50,000 in damages because there was no competent evidence to support that finding. We disagree.\nA finding of fact by the full Commission is not reversible on appeal unless there is no competent evidence to support that finding. See G.S. \u00a7 143-293(2001); Bailey v. Dept. of Mental Health, 272 N.C. 680, 159 S.E.2d 28 (1968). Here, the Industrial Commission found that plaintiffs injury on 6 July 1996 was a \u201csignificant causative factor\u201d for plaintiff missing a season of wrestling, suffering headaches, and limitation of his normal physical routine for at least six months. This finding of fact was supported by plaintiffs own testimony, as well as the testimony of his physician. The evidence regarding defendant\u2019s award for pain and suffering, mental anguish, and physical impairment is credible and supports the Commission\u2019s finding. Therefore, this assignment of error is overruled.\nFor the reasons stated, we affirm the opinion and award issued by the full Commission awarding defendant $50,000. In addition, we deny defendant\u2019s cross-appeal.\nAffirmed.\nJudge McGEE concurs.\nJudge HUDSON concurs in the result in a separate opinion.", "type": "majority", "author": "EAGLES, Chief Judge." }, { "text": "HUDSON, Judge,\nconcurring in result.\nWhile I agree with the result reached by the majority, I do not agree with the analysis of the difference between the role of the full commission in a case proceeding under the Tort Claims Act as compared to one under the Workers\u2019 Compensation Act. For the reasons discussed in my concurring opinion in Fennell v. N.C. Dep\u2019t of Crime Control & Pub. Safety, 145 N.C. App. 584, 593, 551 S.E.2d 486, 492 (2001), cert. denied, 355 N.C. 285, 560 S.E 2d 800 (2002), I believe that the General Assembly envisioned different roles for the full commission in the two types of claims, and that in a tort claim the full commission must defer to credibility determinations based on the hearing deputy\u2019s opportunity to observe the demeanor of witnesses. However, the full commission in this case acted appropriately when it made its own findings of fact and conclusions of law based on its review of the record before it, including the medical records and transcripts of the hearing and deposition testimony of Dr. Tuttle, who did not appear before the deputy commissioner. Thus, where the deputy commissioner did not actually view the demeanor of Dr. Tuttle or the other physicians whose records were in evidence, the full commission was as well situated to assess this evidence as was the deputy commissioner. Thus, the findings of the full commission based on the medical evidence were within the scope of its role as defined by N. C. Gen. Stat. \u00a7 143-292 (2001).", "type": "concurrence", "author": "HUDSON, Judge," } ], "attorneys": [ "Martin A. Rosenberg for plaintiff-appellant.", "Attorney General Roy Cooper, by Special Deputy Attorneys General Thomas Ziko and Robert T. Hargett, for the State." ], "corrections": "", "head_matter": "JOSEPH HUMMEL, Plaintiff v. THE UNIVERSITY OF NORTH CAROLINA and THE UNIVERSITY OF NORTH CAROLINA d/b/a THE UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Defendants\nNo. COA02-398\n(Filed 18 February 2003)\n1. Tort Claims Act\u2014 findings by Commission \u2014 deputy commissioner\u2019s findings \u2014 disregarded\nIn a Tort Claims case, the Industrial Commission may disregard the findings of the deputy commissioner and substitute its own findings on appeal. Here, the Commission did not err by reducing a Tort Claims award of $500,000 for future loss of earning capacity for a doctor who had been injured as a college wrestler where the Commission found that the testimony did not support the award.\n2. Constitutional Law\u2014 North Carolina \u2014 law of the land clause \u2014 plaintiff not surprised\nThe Industrial Commission did not violate the law of the land clause of the North Carolina Constitution in reducing a Tort Claims award for a doctor who had been injured as a college wrestler where it could not be said that new or surprising evidence was sprung upon plaintiff.\n3. Tort Claims Act\u2014 discretion of Commission \u2014 findings\u2014 stipulation\nIt was within the Industrial Commission\u2019s discretion in a Tort Claims case to find that a doctor injured as a college wrestler had failed to prove loss of future income despite a stipulation that the accident had proximately caused plaintiff severe and permanent injuries. The Commission specifically found unconvincing plaintiff\u2019s evidence of reduced future earning capacity.\n4. Tort Claims Act\u2014 award reduced by full Commission \u2014 credibility of evidence\nThe Industrial Commission in a Tort Claims case may choose to find facts in contradiction to the evidence presented by plaintiff even when the opposing party offers no contradictory evidence. Here, the Commission did not err by reducing a deputy commissioner\u2019s award of $500,000 for a doctor injured as a college wrestler to $50,000 where the Commission specifically found that plaintiff\u2019s evidence of future lost earnings was not credible but that his testimony about his physical impairment was credible.\n5. Tort Claims Act\u2014 pain and suffering award \u2014 evidence credible\nThe Industrial Commission did not err in a Tort Claims case by awarding plaintiff $50,000 in damages where the evidence supporting the award for pain and suffering, mental anguish, and physical impairment is credible and supports the finding.\nJudge Hudson concurring.\nAppeal by plaintiff from opinion and award entered 14 January 2002 by the North Carolina Industrial Commission. Cross-appeal by defendants from opinion and award. Heard in the Court of Appeals 13 November 2002.\nMartin A. Rosenberg for plaintiff-appellant.\nAttorney General Roy Cooper, by Special Deputy Attorneys General Thomas Ziko and Robert T. Hargett, for the State." }, "file_name": "0108-01", "first_page_order": 138, "last_page_order": 149 }