{ "id": 4156070, "name": "MICHAEL L. HUNTER, Employee, Plaintiff v. APAC/BARRUS CONSTRUCTION COMPANY, Employer, ESIS, Carrier, Defendants", "name_abbreviation": "Hunter v. APAC/Barrus Construction Co.", "decision_date": "2008-02-19", "docket_number": "No. COA07-5", "first_page": "723", "last_page": "734", "citations": [ { "type": "official", "cite": "188 N.C. App. 723" } ], "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": "613 S.E.2d 690", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633056, 12633057, 12633058 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/613/0690-01", "/se2d/613/0690-02", "/se2d/613/0690-03" ] }, { "cite": "622 S.E.2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634500, 12634501, 12634502 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/622/0492-01", "/se2d/622/0492-02", "/se2d/622/0492-03" ] }, { "cite": "613 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632991 ], "pin_cites": [ { "page": "515" } ], "opinion_index": 0, "case_paths": [ "/se2d/613/0510-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-25", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2005, "opinion_index": 0 }, { "cite": "359 N.C. 631", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3800229, 3793893, 3794537, 3799052, 3804845, 3795663, 3804149, 3798264, 3796825 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0631-01", "/nc/359/0631-07", "/nc/359/0631-05", "/nc/359/0631-04", "/nc/359/0631-08", "/nc/359/0631-03", "/nc/359/0631-06", "/nc/359/0631-02", "/nc/359/0631-09" ] }, { "cite": "601 S.E.2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "899" }, { "page": "898" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 413", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411455 ], "year": 2004, "pin_cites": [ { "page": "421" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0413-01" ] }, { "cite": "364 S.E.2d 924", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2571435, 2572686, 2566866, 2568754, 2567063 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0474-05", "/nc/321/0474-03", "/nc/321/0474-02", "/nc/321/0474-04", "/nc/321/0474-01" ] }, { "cite": "360 S.E.2d 696", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "700", "parenthetical": "holding that the Commission may refuse to believe certain evidence, controverted or not, and may accept or reject the testimony of any witness" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 208", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358120 ], "year": 1987, "pin_cites": [ { "page": "216", "parenthetical": "holding that the Commission may refuse to believe certain evidence, controverted or not, and may accept or reject the testimony of any witness" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0208-01" ] }, { "cite": "486 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "254" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 678", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11712737 ], "year": 1997, "pin_cites": [ { "page": "680" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0678-01" ] }, { "cite": "473 S.E.2d 10", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "12" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 507", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914018 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc-app/123/0507-01" ] }, { "cite": "570 S.E.2d 257", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "262" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 442", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250309 ], "year": 2002, "pin_cites": [ { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0442-01" ] }, { "cite": "530 S.E.2d 54", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 2000, "pin_cites": [ { "page": "107" }, { "page": "61" }, { "page": "108" }, { "page": "61" } ], "opinion_index": 0 }, { "cite": "352 N.C. 98", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685033 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/352/0098-01" ] }, { "cite": "398 S.E.2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "682" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 24", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527213 ], "year": 1990, "pin_cites": [ { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0024-01" ] }, { "cite": "462 S.E.2d 507", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "341 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793231, 793236, 793046, 793239, 793240 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/341/0647-03", "/nc/341/0647-01", "/nc/341/0647-02", "/nc/341/0647-05", "/nc/341/0647-04" ] }, { "cite": "458 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "257" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 275", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914585 ], "year": 1995, "pin_cites": [ { "page": "284" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0275-01" ] }, { "cite": "487 S.E.2d 746", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "749", "parenthetical": "quoting Dalton v. Anvil Knitwear, 119 N.C. App. 275, 284, 458 S.E.2d 251, 257, disc. review denied and cert. denied, 341 N.C. 647, 462 S.E.2d 507 (1995)" }, { "page": "749" } ], "opinion_index": 0 }, { "cite": "346 N.C. 760", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139324 ], "year": 1997, "pin_cites": [ { "page": "763", "parenthetical": "quoting Dalton v. Anvil Knitwear, 119 N.C. App. 275, 284, 458 S.E.2d 251, 257, disc. review denied and cert. denied, 341 N.C. 647, 462 S.E.2d 507 (1995)" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0760-01" ] }, { "cite": "360 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3789677 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/360/0173-01" ] }, { "cite": "170 N.C. App. 532", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9006020 ], "pin_cites": [ { "page": "540" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0532-01" ] }, { "cite": "585 S.E.2d 264", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "267" } ], "opinion_index": 0 }, { "cite": "160 N.C. App. 180", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8954923 ], "year": 2003, "pin_cites": [ { "page": "184" } ], "opinion_index": 0, "case_paths": [ "/nc-app/160/0180-01" ] }, { "cite": "538 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "914" } ], "opinion_index": 0 }, { "cite": "353 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135777 ], "year": 2000, "pin_cites": [ { "page": "230" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0227-01" ] }, { "cite": "543 S.E.2d 488", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 473", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155778, 1155688, 1155729, 1155570, 1155866 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0473-01", "/nc/351/0473-05", "/nc/351/0473-04", "/nc/351/0473-02", "/nc/351/0473-03" ] }, { "cite": "524 S.E.2d 368", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "371" } ], "opinion_index": 0 }, { "cite": "136 N.C. 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App.", "case_ids": [ 8521328 ], "year": 1991, "pin_cites": [ { "page": "285-86" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0284-01" ] } ], "analysis": { "cardinality": 1107, "char_count": 26969, "ocr_confidence": 0.744, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13534012986857535 }, "sha256": "9f8ca369e0d11e3f28579441311c3dadca2f627e69a29e6414f767dab1580f4a", "simhash": "1:a9cbaa6326bf366e", "word_count": 4219 }, "last_updated": "2023-07-14T21:34:30.605877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and JACKSON concur." ], "parties": [ "MICHAEL L. HUNTER, Employee, Plaintiff v. APAC/BARRUS CONSTRUCTION COMPANY, Employer, ESIS, Carrier, Defendants" ], "opinions": [ { "text": "GEER, Judge.\nDefendants appeal from an opinion and award of the North Carolina Industrial Commission concluding that plaintiff is entitled to permanent total disability benefits as a result of injuries he sustained during his employment with defendant employer. On appeal, defendants primarily argue that the Commission should have found that plaintiff was actively involved in the running of a family farm and that this activity established that plaintiff possessed wage-earning capacity. Based upon this Court\u2019s standard of review, we hold that the Commission\u2019s findings of fact otherwise are supported by competent evidence, and those findings in turn support the conclusions of law. \u2022We, therefore, affirm.\nFacts\nAt the time of the hearing, plaintiff was 52 years old and had a high school diploma. He began working for the defendant construction company as a heavy equipment operator on 24 September 1990. In December 1992, plaintiff and his brother also began the Hunter Hog Farm (\u201cthe farm\u201d). Prior to being injured, plaintiff was responsible for overseeing the day-to-day operations of the farm. His son grew up helping with the farm and also learning its day-to-day operations.\nOn 6 May 1996, plaintiff was injured while working for defendant employer when a road sign fell and hit him in the head, resulting in a life-threatening epidural hematoma. Plaintiff was taken to the hospital where he underwent an emergency craniotomy and was released on 10 May 1996. The parties ultimately entered into a Form 21 agreement that was approved by the Commission on 17 June 1996. Plaintiff has been receiving temporary total disability benefits at a rate of $390.00 per week since 6 May 1996.\nAs a result of his brain injury, plaintiff suffered a change in personality that caused him to become childish, forgetful, irrational, angry, and unexpectedly belligerent. Plaintiff also experienced headaches, tinnitus, diminished cognitive abilities, anxiety, and depression. He was seen by Dr. Antonio E. Puente, a neuropsychologist, on 84 occasions from 15 July 1996 through 9 December 2002. Dr. Puente continues to be plaintiff\u2019s treating doctor. Dr. Puente has diagnosed plaintiff as suffering from a closed head injury with PTSD/ anxiety/reactive depression and a chronic organic personality disorder. According to Dr. Puente, plaintiff\u2019s brain injury resulted in cognitive and emotional limitations, impairing his memory, organizational skills, and ability to learn new skills and led to volatility, a hypersensitivity to noise, and an inability to perform repetitive tasks for extended periods of time.\nPlaintiff was also seen, at defendants\u2019 request, by Dr. Margit Royal, a board-certified neurologist, and Dr. C. Thomas Gualtieri, a neuropsychiatrist. Dr. Royal ultimately concluded plaintiff was physically capable of working, but acknowledged that plaintiff may lack the cognitive function, especially with respect to organizational skills, necessary to perform consistently. Dr. Gualtieri diagnosed plaintiff as suffering a traumatic injury to the brain that had resulted in persistent problems, including headaches, tinnitus, cognitive problems, and emotional problems.\nSubsequently, defendants requested a hearing to determine \u201cwhether Plaintiff is employable and whether Plaintiff is undermining Vocational Rehabilitation and medical diagnosis efforts.\u201d The hearing was conducted by the deputy commissioner on 17 October 2002 and 16 December 2003. As reflected in the stipulations set forth in the deputy commissioner\u2019s opinion and award, defendants contended \u201cthat the Plaintiff\u2019s ownership interest in and operation of [the farm] is suitable employment such that he is no longer entitled to receive ongoing total disability benefits.\u201d On 22 December 2005, the deputy commissioner awarded plaintiff permanent total disability compensation in the amount of $390.00 per week.\nDefendants appealed to the Full Commission, which affirmed the deputy commissioner\u2019s opinion and award on 6 September 2006 with minor modifications. The Commission concluded that plaintiff\u2019s ownership of the farm was not sufficient to support a finding of wage earning capacity based on its factual findings that (1) plaintiff was not involved in' the day-to-day operations of the farm; and (2) the skills plaintiff used on the farm would not allow him to be employable in the competitive market place, considering his physical limitations, age, education, and experience. The Commission further concluded that because of plaintiffs compensable brain injury \u2014 and the resulting cognitive and emotional conditions \u2014 plaintiff would never be able to return to work in competitive employment, and plaintiff was, therefore, entitled to permanent total disability benefits. Defendants timely appealed the opinion and award of the Full Commission to this Court.\nDiscussion\nAppellate review of a decision of the Industrial Commission \u201cis limited to determining whether there is any competent evidence to support the findings of fact, and whether the findings of fact justify the conclusions of law.\u201d Cross v. Blue Cross/Blue Shield, 104 N.C. App. 284, 285-86, 409 S.E.2d 103, 104 (1991). \u201cThe findings of the Commission are conclusive on appeal when such competent evidence exists, even if there is plenary evidence for contrary findings.\u201d Hardin v. Motor Panels, Inc., 136 N.C. App. 351, 353, 524 S.E.2d 368, 371, disc. review denied, 351 N.C. 473, 543 S.E.2d 488 (2000). The Commission\u2019s findings of fact may only be set aside if there is a \u201ccomplete lack of competent evidence to support them.\u201d Young v. Hickory Bus. Furniture, 353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000). This Court reviews the Commission\u2019s conclusions of law de novo. Deseth v. LensCrafters, Inc., 160 N.C. App. 180, 184, 585 S.E.2d 264, 267 (2003).\nDefendants first contend that the Commission erred in concluding that plaintiff had a presumption of permanent total disability. In its first conclusion of law, the Commission stated: \u201cBecause the parties entered into a Form 21 Agreement, the plaintiff has the benefit of a presumption of total disability.\u201d Defendants argue that the presumption of disability resulting from a Form 21 agreement applies only to temporary total disability and, therefore, should not have been a basis for an award of permanent total disability. Significantly, defendants cite no authority that supports their proposition.\nIn any event, defendants did not assign error to this conclusion of law. Pursuant to Rule 10(a) of the North Carolina Rules of Appellate Procedure, \u201cthe scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal in accordance with this Rule 10.\u201d In the absence of an assignment of error directed to the first conclusion of law, defendants\u2019 arguments regarding that conclusion of law are not properly before this. Court. See Taylor v. Carolina Restaurant Group, Inc., 170 N.C. App. 532, 540, 613 S.E.2d 510, 515 (declining, pursuant to Rule 10(a), to address defendants\u2019 contention that Commission\u2019s conclusion of law was contrary to the law, when defendants\u2019 assignment of error as to that conclusion of law stated only that it was not supported by competent findings of fact), aff\u2019d per curiam, 360 N.C. 173, 622 S.E.2d 492 (2005). We note further that even after plaintiff, in his appellate brief, pointed out the lack of an assignment of error, defendants did not move to amend the record on appeal to add an assignment of error and did not ask, in their reply brief, for this Court to apply N.C.R. App. P. 2. We, therefore, address neither defendants\u2019 arguments regarding the presumption nor defendants\u2019 contentions regarding plaintiff\u2019s purported failure to meet his burden of proof in the absence of the presumption.\nDefendants next contend that the Commission erred in determining plaintiff to be permanently and totally disabled because defendants\u2019 evidence established plaintiff\u2019s wage earning capacity. When a presumption has arisen from a Form 21, \u201c \u2018the burden shifts to [the employer] to show that plaintiff is employable.\u2019 \u201d Saums v. Raleigh Community Hosp., 346 N.C. 760, 763, 487 S.E.2d 746, 749 (1997) (quoting Dalton v. Anvil Knitwear, 119 N.C. App. 275, 284, 458 S.E.2d 251, 257, disc. review denied and cert. denied, 341 N.C. 647, 462 S.E.2d 507 (1995)). At that point, \u201c[t]he employee need not present evidence at the hearing unless and until the employer, \u2018claim[ing] that the plaintiff is capable of earning wages[,] . . . come[s] forward with evidence to show not only that suitable jobs are available, but also that the plaintiff is capable of getting one, taking into account both physical and vocational limitations.\u2019 \u201d Id. at 763-64, 487 S.E.2d at 749 (quoting Kennedy v. Duke Univ. Med. Ctr., 101 N.C. App. 24, 33, 398 S.E.2d 677, 682 (1990)).\nDefendants contend they met their burden by offering evidence regarding plaintiff\u2019s involvement with his family farm. The Supreme Court in Lanning v. Fieldcrest-Cannon, Inc., 352 N.C. 98, 530 S.E.2d 54 (2000), set forth the test to be applied in determining whether an employee\u2019s ownership of a business supports a finding of earning capacity:\n[T]he test for determining whether the self-employed injured employee has wage-earning capacity is that the employee (i) be actively involved in the day to day operation of the business and (ii) utilize skills which would enable the employee to be employable in the competitive market place notwithstanding the employee\u2019s physical limitations, age, education and experience. In the instant case, given plaintiff\u2019s exertional limitations, education, and experience, would he be hired to work in the competitive market place?\nId. at 107, 530 S.E.2d at 61.\nThe Supreme Court stressed in Lanning that questions regarding whether plaintiff is actively involved in the day-to-day operation of the business and whether plaintiff\u2019s self-employment involves marketable skills \u201care questions of fact.\u201d Id. at 108, 530 S.E.2d at 61. In Lanning, the Court held that this Court \u201cusurped the fact-finding role of the Commission\u201d when it made these determinations. Id. The Supreme Court reversed this Court and directed that the case be remanded to the Commission to make the necessary findings of fact. Id. See also Devlin v. Apple Gold, Inc., 153 N.C. App. 442, 448, 570 S.E.2d 257, 262 (2002) (finding that although the Commission made adequate findings as to the employee\u2019s involvement in day-to-day operation of his business, it failed to make findings as to whether the employee\u2019s management skills \u201care competitively marketable in light of his physical limitations, age, education and experience\u201d). In this case, the Commission made the findings required by Lanning and, more recently, by Devlin. The issue on appeal is whether those findings are supported by any competent evidence.\nWith respect to the first element of the Lanning test, the Commission found:\n19. ... All the testimony, including that from friends or business acquaintances and the plaintiff\u2019s brother James Hunter, a former partner in the hog farm, shows that Scott Hunter [plaintiff\u2019s son] is a hard-working young man, and that after his father\u2019s injury in May 1996, Scott rose to the occasion and basically took over the physical day-to-day operations of the farm.\n20. Scott Hunter was a minor and did not have the credit history to take over financial ownership of the farm when his father was first injured. As a result, the plaintiff continued to sign as owner of the business on grower agreements, equipment purchases and financial documents until Scott was able to acquire a one-half ownership interest in Hunter Hog Farm in 2002.\n21. Since May 6, 1996, Scott Hunter has been responsible for the day-to-day operations of the hog farm including driving the tractors, mowing the grass, irrigating the animals, pulling out the dead hogs, bailing the hay, operating the equipment, cleaning the hog houses, identifying whether there were sick or diseased animals, ordering the feed and all other tasks related to the hog farm.\n25. Since his injury by accident, the plaintiff has done a limited amount of work on Hunter Hog Farm, but he is not involved in day-to-day operations or in management of the business. The plaintiff has walked the farm, co-signed loans, purchased equipment and signed grower agreements.\nDefendants failed to assign error to findings of fact 19, 20, and 21 and, therefore, those findings are binding on appeal. Those findings establish that Scott Hunter is the person responsible for the day-to-day operations of the farm. Further, the Commission\u2019s finding regarding plaintiff\u2019s limited involvement with the farm is supported by testimony from Scott Hunter, plaintiff, a neighbor, the farm\u2019s CPA, a loan officer, and a grower. While defendants point to the documents signed by plaintiff, the Commission was entitled to credit plaintiff\u2019s evidence that plaintiff signed the documents only because of Scott\u2019s age and lack of credit history and that the documents did not reflect actual involvement in the day-to-day operations of the farm.\nDefendants, however, argue that the Commission failed to take into account testimony from their expert, Dr. Lamb, and lay witnesses testifying about plaintiff\u2019s signing of financial documents and engaging in other tasks in connection with the farm. Defendants cite' Weaver v. American Nat\u2019l Can Corp., 123 N.C. App. 507, 473 S.E.2d 10 (1996), which held: \u201cBefore making findings of fact, the Industrial Commission must consider all of the evidence. The Industrial Commission may not discount or disregard any evidence, but may choose not to believe the evidence after considering it.\u201d Id. at 510, 473 S.E.2d at 12.\nDefendants hired Dr. Russell Lamb, a Ph.D. agricultural economist, to analyze the farm\u2019s financial records. Based upon his review of those records, Dr. Lamb concluded that plaintiff was actively involved in the operation of the farm from 1996 to 2002. Far from disregarding Dr. Lamb\u2019s testimony, the Commission included a specific finding of fact explaining why it did not find his testimony persuasive:\n24. Dr. Lamb has never met the plaintiff, never talked to anyone who has ever don\u00e9 business with the plaintiff, and has never met Scott Hunter or Dale Hunter[, plaintiffs wife]. Further, Dr. Lamb does not have the expertise necessary to render an opinion about the plaintiffs physical capacity or the extent of the plaintiffs head injury, or cognitive deficits. He has never visited the Hunter Hog Farm or observed the day-to-day operation. The Full Commission finds that, to the extent that Dr. Lamb\u2019s conclusions about the economic status of Hunter Hog Farm are based upon incomplete information about the actual operations of the farm and who manages it and does the work, they are insufficient and not persuasive to establish any wage earning capacity on the part of the plaintiff.\nThe Commission thus did not disregard Dr. Lamb; it simply did not credit his testimony. \u201cIn weighing the evidence, the Commission is the sole judge of the credibility of the witnesses and the weight to be given to their testimony, and may reject a witness\u2019 testimony entirely if warranted by disbelief of that witness.\u201d Lineback v. Wake County Bd. of Comm\u2019rs, 126 N.C. App. 678, 680, 486 S.E.2d 252, 254 (1997). See also Pitman v. Feldspar Corp., 87 N.C. App. 208, 216, 360 S.E.2d 696, 700 (1987) (holding that the Commission may refuse to believe certain evidence, controverted or not, and may accept or reject the testimony of any witness), disc. review denied, 321 N.C. 474, 364 S.E.2d 924 (1988).\nDefendants also point to the lay testimony of certain growers who had business contracts with the farm and, defendants argue, supported their contention that plaintiff was in fact still involved in the operation of the farm. While the Commission did not make specific findings addressing that testimony, the Commission is not required to \u201cmake exhaustive findings as to each statement made by any given witness or make findings rejecting specific evidence.\u201d Hensley v. Indus. Maint. Overflow, 166 N.C. App. 413, 421, 601 S.E.2d 893, 899 (2004), disc. review denied, 359 N.C. 631, 613 S.E.2d 690 (2005). The Commission\u2019s findings that plaintiff \u201csigned grower agreements,\u201d that plaintiff signed financial documents because Scott Hunter was a minor and lacked a credit history, and the responsibilities assumed by Scott reflect an adequate consideration \u2014 and implicit rejection \u2014 of defendants\u2019 evidence.\nAccordingly, we hold that the Commission\u2019s finding that plaintiff was not involved in the day-to-day operations of the farm is supported by competent evidence and, therefore, must be upheld on appeal. \u201cAs this finding of fact establishes that the [business] did not meet one prong of the Lanning two-prong test, we need not address whether [plaintiff] gained any marketable skills from his [business].\u201d Id. at 419, 601 S.E.2d at 898. We, therefore, uphold the Commission\u2019s determination that plaintiff\u2019s participation in the farm did not establish wage-earning capacity.\nAlternatively, defendants argue that plaintiff\u2019s refusal to cooperate with vocational rehabilitation precludes an award of disability benefits under N.C. Gen. Stat. \u00a7 97-25 (2005) and N.C.I.C. Rule 703. Defendants complain that the Commission\u2019s determination that plaintiff\u2019s refusal to continue at a sheltered workshop was \u201creasonable\u201d constituted a \u201cde facto reversal of the Order compelling plaintiff to attend vocational rehabilitation\u201d and, in combination with its \u201cdetermination of permanent disability erroneously deprived defendants of the chance to assist plaintiff in regaining any alleged diminished capacity resulting from the injury.\u201d\nThe record indicates that defendants\u2019 vocational rehabilitation professional, Robert Manning, Jr., recommended that plaintiff work for a period of time in \u201csupportive employment,\u201d also known as a sheltered workshop. In response to a request by defendants, the Commission\u2019s Executive Secretary entered an order stating:\nFor good cause shown, IT IS HEREBY ORDERED that plaintiff shall comply with reasonable vocational rehabilitation services provided by defendants pursuant to N.C. Gen. Stat. \u00a7 97-25, including attempting to attend an interim workshop, after the vocational Rehabilitation Professional observes the plaintiff in his current efforts at returning to work and after the Rehabilitation Professional clearly enunciates the plan for use of the workshop in a report which specifies the maximum length of time the plaintiff should attempt the workshop and how the workshop will aid in returning the plaintiff to suitable employment.\nMr. Manning, in consultation with Dr. Puente, ultimately decided on a two-week period at Omega Enterprises. During an initial tour of the Omega facilities, plaintiff left after a few minutes. The Commission found:\n18. In December 2000, at the direction of the defendants, the plaintiff visited a sheltered workshop. The plaintiff was overwhelmed by the noise and number of developmentally disabled individuals at the shelter and left after a few minutes. Mr. Manning testified that the attempt to rehabilitate the plaintiff in a sheltered workshop was a wasted cause. The plaintiff\u2019s decision to walk out of the sheltered workshop was a reasonable reaction.\nDefendants have not made any specific argument, apart from a general citation to N.C. Gen. Stat. \u00a7 97-25 and Rule 703, that the Commission was required to suspend benefits despite this finding. Further, even assuming that defendants are correct in arguing that the Commission \u201cde facto\u201d reversed the Executive Secretary when it found that plaintiff\u2019s decision not to go through with the Omega trial was \u201creasonable,\u201d defendants have cited no authority and made no specific argument as to why such a reversal would be erroneous.\nDefendants argue instead that the finding misstates Mr. Manning\u2019s testimony when it indicated that Mr. Manning testified that pursuit of the sheltered workshop was \u201ca wasted cause.\u201d We disagree. When asked whether he thought plaintiff would participate in the Omega workshop, Mr. Manning responded: \u201cI didn\u2019t really feel any need to pursue \u2014 not that I was ever asked to, again, but I certainly felt it was a wasted cause.\u201d Thus, the Commission\u2019s finding is consistent with Mr. Manning\u2019s testimony.\nWith respect to the Commission\u2019s finding that plaintiff\u2019s departure from Omega was a reasonable reaction, Mr. Manning explained that he could understand plaintiff\u2019s reaction.\nWell, I think I used the word, insulted, before and I \u2014 I can understand that. . . .\nBut with the scenario that you\u2019ve painted \u2014 I mean, when you pull up in front of that building and you walk in and somebody walks by with, you know, perhaps not their Sunday best on that\u2019s acting a little bit strange, I\u2019ll admit to you it could be a little bit intimidating.\nMr. Manning confirmed that Omega was not work in a competitive labor market, but explained the reasoning for the referral to Omega:\n[W]ith the problems that [plaintiff] had, I just \u2014 I couldn\u2019t see going out trying to place him in the job market, but at the same time, as a rehab person, I wasn\u2019t about to give up on him. I. was just trying to find something that would help him kind of crawl back.\nAnd this may have turned out to be an absolute disaster if we\u2019d gone through with it, but I guess in some sense of the word, at least we\u2019d be that far down the road and know that it was a disaster.\nWe believe that this testimony supports the Commission\u2019s finding that plaintiff\u2019s decision to leave Omega was reasonable. Defendants present no other argument supporting their contention that plaintiff\u2019s refusal to cooperate precluded an award of benefits.\nIn this section of their brief, defendants also challenge an unrelated finding of the Commission that \u201cBob Manning, the vocational rehabilitation expert hired by the defendants, testified that there was \u2018no way\u2019 the plaintiff could get a job in the competitive labor market when one considers his physical and mental limitations.\u201d This finding of fact relates to the second prong of the Lanning test and, therefore, is immaterial. Nevertheless, this finding is supported by Mr. Manning\u2019s deposition. After describing the Omega experience, Manning went on to acknowledge that he \u201cnever did go on to recommend a job placement plan or anything like that.\u201d He explained that he did not prepare a plan because: \u201cI just can\u2019t imagine going hand-in-hand to an employer at that time and . . . trying to give somebody his history and \u2014 -and to stand there and say yeah, I\u2019m ready to go to work, I\u2019ll be here Monday morning. That wasn\u2019t going to happen.\u201d When asked by plaintiff\u2019s counsel if plaintiff would be hired if they had done so, he said, \u201cNo, way.\u201d The Commission\u2019s finding is a reasonable construction of Mr. Manning\u2019s testimony.\nConclusion\nDefendants failed to preserve any argument that a presumption of disability did not apply. The burden to prove that plaintiff was employable, therefore, shifted to them. Because the Commission\u2019s findings of fact under Lanning are supported by competent evidence, and defendants have failed to demonstrate that plaintiff\u2019s unwillingness to participate in the Omega sheltered workshop mandated a denial of benefits, we affirm the Commission.\nAffirmed.\nJudges CALABRIA and JACKSON concur.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Ward and Smith, P.A., by William Joseph Austin, Jr. and Nikiann Tarantino Gray, for plaintiff-appellee.", "Womble Carlyle Sandridge & Rice, PLLC, by Clayton M. Custer and Julie B. Bradbum, for defendants-appellants." ], "corrections": "", "head_matter": "MICHAEL L. HUNTER, Employee, Plaintiff v. APAC/BARRUS CONSTRUCTION COMPANY, Employer, ESIS, Carrier, Defendants\nNo. COA07-5\n(Filed 19 February 2008)\n1. Appeal and Error\u2014 preservation of issues \u2014 failure to cite authority \u2014 failure to assign error\nAlthough defendants contend the Industrial Commission erred in a workers\u2019 compensation case by its first conclusion of law stating that plaintiff had a presumption of permanent total disability even though defendants contend the presumption of disability resulting from a Form 21 agreement applies only to temporary total disability, this assignment of error is dismissed, because: (1) defendants failed to cite any authority for their proposition; (2) this argument is not properly before the Court of Appeals since defendants failed to assign error to this conclusion of law as required by N.C. R. App. P. 10(a); and (3) even after plaintiff pointed out in his brief the lack of assignment of error, defendants did not move to amend the record on appeal to add an assignment of error, nor did they ask in their reply brief for the Court of Appeals to apply N.C. R. App. P. 2.\n2. Workers\u2019 Compensation\u2014 permanent total disability\u2014 wage earning capacity\nThe Industrial Commission did not err in a workers\u2019 compensation case by concluding that plaintiff was entitled to permanent total disability benefits as a result of a brain injury he sustained during his employment with defendant even though defendants contend plaintiff was actively involved in running a family farm which allegedly established that plaintiff possessed wage earning capacity, because: (1) defendants failed to assign error to findings of fact that established plaintiff\u2019s son was the person responsible for the day-to-day operations of the farm; (2) the Commission\u2019s finding regarding plaintiff\u2019s limited involvement with the farm was supported by the testimony of plaintiff, plaintiff\u2019s son, a neighbor, the farm\u2019s CPA, a loan officer, and a grower; (3) while defendants point to the documents signed by plaintiff, the Commission was entitled to credit plaintiff\u2019s evidence that he only signed the documents based on his son\u2019s age and lack of credit history, and that the documents did not reflect actual involvement in the day-to-day operations of the farm; (4) contrary to defendants\u2019 assertion, the Commission did not disregard their expert\u2019s testimony, but instead simply did not credit it; and (5) the Commission\u2019s findings that plaintiff signed grower agreements and financial documents based on his son being a minor and lacking a credit history, coupled with the responsibilities assumed by the son, reflected adequate consideration and an implicit rejection of defendant\u2019s evidence.\n3. Workers\u2019 Compensation\u2014 vocational rehabilitation \u2014 unwillingness to participate\nThe Industrial Commission did not err in a workers\u2019 compensation case by concluding that plaintiff\u2019s alleged refusal to cooperate with vocational rehabilitation did not preclude an award of disability benefits under N.C.G.S. \u00a7 97-25 and N.C.I.C. Rule 703, because defendants failed to demonstrate that plaintiffs unwillingness to participate in a sheltered workshop was unreasonable and mandated a denial of benefits.\nAppeal by defendants from an opinion and award entered 6 September 2006 by the North Carolina Industrial Commission. Heard in the Court of Appeals 29 August 2007.\nWard and Smith, P.A., by William Joseph Austin, Jr. and Nikiann Tarantino Gray, for plaintiff-appellee.\nWomble Carlyle Sandridge & Rice, PLLC, by Clayton M. Custer and Julie B. Bradbum, for defendants-appellants." }, "file_name": "0723-01", "first_page_order": 753, "last_page_order": 764 }