{
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  "name": "RUTH MARIE CLARK RAY, Employee, Plaintiff v. PET PARLOR, Employer, and STATE AUTOMOBILE INSURANCE COMPANY, Carrier, Defendants",
  "name_abbreviation": "Ray v. Pet Parlor",
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    "judges": [
      "Judges CALABRIA and GEER concur."
    ],
    "parties": [
      "RUTH MARIE CLARK RAY, Employee, Plaintiff v. PET PARLOR, Employer, and STATE AUTOMOBILE INSURANCE COMPANY, Carrier, Defendants"
    ],
    "opinions": [
      {
        "text": "MARTIN, Chief Judge.\nPlaintiff filed this workers\u2019 compensation claim to recover for an injury to her face, sustained when she suffered a dog bite arising out of her employment as a dog groomer. Defendants admitted compens-ability and plaintiff received total temporary compensation while she was out of work and underwent cosmetic surgery \u201cto correct misalignment of the vermillion border of plaintiff\u2019s upper lip\u201d due to the dog bite. Her plastic surgeon, Dr. Siciliano, determined that she had reached maximum medical improvement on 21 May 2001.\nThe deputy commissioner found that plaintiff had a permanent scar on her upper lip as a result of the 28 February 2000 compensable injury and that the scar was visible \u201cfrom a distance of six feet or less.\u201d As a result of the scar, plaintiffs philtrum, the area of the upper lip directly in the middle of the nose that extends down to the bottom of the upper lip, is approximately twice the normal width. The deputy commissioner further found that plaintiff was embarrassed and self-conscious about the scar, and that the scar caused her numbness and pain or discomfort. The deputy commissioner determined that:\n9. As a direct and proximate consequence of plaintiffs February 28, 2000 compensable injury, plaintiff has sustained serious and permanent facial disfigurement which mars her appearance to such an extent that it may reasonably be presumed to lessen her future opportunities for remunerative employment and so reduce her future earning capacity. The fair and equitable amount of compensation for this loss under the Workers\u2019 Compensation Act is $1,450.00.\nBased on these findings, plaintiff was awarded compensation for facial disfigurement in the amount of $1,450.00, to be paid in a lump sum, subject to a reasonable attorney\u2019s fee of twenty-five percent (25%). Defendants were ordered to \u201cpay all medical[] expenses incurred by plaintiff as a result of this injury by accident\u201d and costs.\nPlaintiff appealed the deputy commissioner\u2019s award to the Full Commission. Due to a mis-communication by the plaintiff\u2019s attorney, \u201cplaintiff was not present at oral arguments\u201d scheduled for 2 December 2002. The Commission specially scheduled a \u201cviewing of the plaintiff\u2019 for 7 May 2003, and defendants\u2019 counsel appeared but neither plaintiff nor her attorney appeared. Upon being contacted by the Commission, plaintiff\u2019s counsel advised that plaintiff could not attend the viewing due to a lack of transportation. Plaintiff\u2019s attorney apparently sought \u201ca further continuance\u201d to which defendants objected.\nThe Commission proceeded to issue its Opinion and Award, determining \u201cthat the pictures of plaintiff in evidence and description given by the deputy commissioner are sufficient to render a decision in this matter, especially in light of the information from plaintiffs attorney that plaintiff has received subsequently additional facial injuries from an unrelated incident.\u201d In the Opinion and Award, the Commission made, almost verbatim, the same findings of fact and conclusions of law made by the deputy commissioner and awarded plaintiff compensation for disfigurement in the amount of $1,450.00, subject to an attorney\u2019s fee of twenty-five percent (25%), and ordered defendants to pay all medical expenses incurred by plaintiff as a result of the accident. Both plaintiff and defendants appeal from the award of the Full Commission.\nOn appeal, plaintiff argues that the Commission\u2019s monetary award for disfigurement is inconsistent with its findings with respect to the severity of her facial disfigurement. Conversely, defendants contend the Commission erred by (1) granting plaintiff any compensation because the disfigurement is not serious and (2) failing to personally view plaintiff\u2019s disfigurement pursuant to Rule 701 (9) of the Workers Compensation Rules.\nWhen reviewing an opinion and award of the Industrial Commission, we determine \u201c(1) whether the Commission\u2019s findings of fact are supported by any competent evidence in the record; and (2) whether the Commission\u2019s findings justify its conclusions of law.\u201d Goff v. Foster Forbes Glass Div., 140 N.C. App. 130, 132-33, 535 S.E.2d 602, 604 (2000). The Commission performs the \u201cultimate fact-finding\u201d function under our Workers Compensation Act. Adams v. AVX Corp., 349 N.C. 676, 680-81, 509 S.E.2d 411, 413 (1998), reh\u2019g denied, 350 N.C. 108, 532 S.E.2d 522 (1999) and a determination of serious facial disfigurement \u201cis a question of fact to be resolved by the Commission.\u201d Russell v. Laboratory Corp. of Am., 151 N.C. App. 63, 68, 564 S.E.2d 634, 638, disc. review denied, 356 N.C. 304, 570 S.E.2d 111 (2002). When the Commission\u2019s findings are supported by competent evidence, they are conclusive on appeal, Hedrick v. PPG Industries, 126 N.C. App. 354, 357, 484 S.E.2d 853, 856, disc. review denied, 346 N.C. 546, 488 S.E.2d 801-02 (1997), and this Court \u201cmay set aside a finding of fact only if it lacks evidentiary support.\u201d Holley v. ACTS, Inc., 357 N.C. 228, 231, 581 S.E.2d 750, 752 (2003).\nIn this case, the Commission did not base its findings on competent evidence; rather, the Commission relied upon the \u201cdescription given by the deputy commissioner\u201d and photographs of plaintiff which had been excluded as evidence representative of plaintiff\u2019s disfigurement by the deputy commissioner. Industrial Commission Rule 701 (9) requires that \u201c[a] plaintiff appealing the amount of a disfigurement award shall personally appear before the.Full Commission to permit the Full Commission to view the disfigurement.\u201d Worker\u2019s Comp. R. of N.C. Indus. Comm\u2019n 701 (9), 2003 Ann. R. (N.C.) 844. By simply adopting the facts as found by the deputy commissioner, without viewing plaintiff or having a description of the disfigurement agreed upon by the parties, the Commission has failed to base its factual findings upon competent evidence. Because there was not competent evidence before the Commission on which to base its award, the Full Commission erred in awarding plaintiff compensation for facial disfigurement. Therefore, we must remand this matter to the Commission for a new hearing and award in accordance with the Commission\u2019s rules.\nRemand for new hearing.\nJudges CALABRIA and GEER concur.",
        "type": "majority",
        "author": "MARTIN, Chief Judge."
      }
    ],
    "attorneys": [
      "Wayne O. Clontz, for plaintiff-appellant.",
      "Teague, Campbell, Dennis & Gorham, L.L.P., by Season D. Atkinson, for defendant-appellants."
    ],
    "corrections": "",
    "head_matter": "RUTH MARIE CLARK RAY, Employee, Plaintiff v. PET PARLOR, Employer, and STATE AUTOMOBILE INSURANCE COMPANY, Carrier, Defendants\nNo. COA03-1600\n(Filed 15 March 2005)\nWorkers\u2019 Compensation\u2014 facial disfigurement \u2014 Commission\u2019s failure to personally view\nThe Industrial Commission erred in a workers\u2019 compensation case arising out of plaintiffs face injury she sustained from a dog bite arising out of her employment as a dog groomer by awarding plaintiff compensation for facial disfigurement, and the case is remanded for a new hearing and award in accordance with the Commission\u2019s rules, because: (1) the Commission failed to personally view plaintiff\u2019s disfigurement as required by Rule 701(9) of the Workers\u2019 Compensation Rules; (2) the full Commission did not base its findings on competent evidence, but instead relied on the description given by the deputy commissioner and photographs of plaintiff which had been excluded as evidence representative of plaintiff\u2019s disfigurement by the deputy commissioner; and (3) the parties did not agree on a description of the disfigurement.\nAppeals by plaintiff and defendants from opinion and award entered 1 July 2003 by the North Carolina Industrial Commission. Heard in the Court of Appeals 10 January 2005.\nWayne O. Clontz, for plaintiff-appellant.\nTeague, Campbell, Dennis & Gorham, L.L.P., by Season D. Atkinson, for defendant-appellants."
  },
  "file_name": "0236-01",
  "first_page_order": 266,
  "last_page_order": 269
}
