{ "id": 8520554, "name": "BETTY LANKFORD, Employee Plaintiff v. DACOTAH COTTON MILLS, Employer and INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY, Carrier Defendants", "name_abbreviation": "Lankford v. Dacotah Cotton Mills", "decision_date": "1982-03-02", "docket_number": "No. 8110IC471", "first_page": "250", "last_page": "253", "citations": [ { "type": "official", "cite": "56 N.C. App. 250" } ], "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": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(6)" } ], "opinion_index": -1 }, { "cite": "146 S.E. 2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "266 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561345 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/266/0513-01" ] }, { "cite": "176 S.E. 572", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1934, "pin_cites": [ { "page": "573" } ], "opinion_index": 0 }, { "cite": "207 N.C. 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624960 ], "year": 1934, "pin_cites": [ { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/nc/207/0253-01" ] }, { "cite": "167 S.E. 2d 38", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "4 N.C. App. 361", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553502 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/4/0361-01" ] }, { "cite": "175 S.E. 2d 324", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "9 N.C. App. 57", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547956 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/9/0057-01" ] }, { "cite": "64 S.E. 2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "233 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608280 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/233/0372-01" ] }, { "cite": "162 S.E. 2d 619", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "2 N.C. App. 126", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551409 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc-app/2/0126-01" ] }, { "cite": "179 S.E. 2d 183", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "10 N.C. App. 421", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554185 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/10/0421-01" ] }, { "cite": "159 S.E. 2d 874", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "273 N.C. 240", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575029 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/273/0240-01" ] }, { "cite": "183 S.E. 2d 827", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "830" } ], "opinion_index": 0 }, { "cite": "12 N.C. App. 499", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550644 ], "year": 1971, "pin_cites": [ { "page": "504" } ], "opinion_index": 0, "case_paths": [ "/nc-app/12/0499-01" ] } ], "analysis": { "cardinality": 375, "char_count": 6058, "ocr_confidence": 0.811, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20548707665968172 }, "sha256": "00471fc7cae2bbeb85e204250e82e69d3ff1a273d3c3c4245fcf7101a7e8c465", "simhash": "1:2d976f8914267d1e", "word_count": 1009 }, "last_updated": "2023-07-14T17:44:21.707745+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MORRIS and Judge HEDRICK concur." ], "parties": [ "BETTY LANKFORD, Employee Plaintiff v. DACOTAH COTTON MILLS, Employer and INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY, Carrier Defendants" ], "opinions": [ { "text": "MARTIN (Robert M.), Judge.\nWe first will consider plaintiff\u2019s second, third and fourth assignments of error which in effect question whether the Industrial Commission\u2019s findings of fact and conclusions of law were supported by competent evidence. In this case, Deputy Commissioner Shuping doubted the credibility of plaintiff\u2019s testimony that the loom handle jerked her injuring her back. Plaintiff had given a prior inconsistent statement to Tom Veal, the insurance adjuster, which statement indicated that plaintiff\u2019s injury occurred while she was performing her normal and routine job duties.\nIn Blalock v. Roberts Co., 12 N.C. App. 499, 504, 183 S.E. 2d 827, 830 (1971), Judge Hedrick, speaking for the Court stated:\nThe findings of fact of the Industrial Commission are conclusive and binding on appeal if supported by competent evidence in the record even though the record contains evidence which would support a contrary finding. Hollman v. City of Raleigh, 273 N.C. 240, 159 S.E. 2d 874 (1968). The Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony; it may accept or reject all of the testimony of a witness; it may accept a part and reject a part. Robbins v. Nicholson, 10 N.C. App. 421, 179 S.E. 2d 183 (1971); Morgan v. Furniture Industries, Inc., 2 N.C. App. 126, 162 S.E. 2d 619 (1968); Anderson v. Motor Co., 233 N.C. 372, 64 S.E. 2d 265 (1951). The Commission has the duty and authority to resolve conflicts in the testimony of a witness or witnesses. If the findings made by the Commission are supported by competent evidence they must be accepted as final truth. Rooks v. Cement Co., 9 N.C. App. 57, 175 S.E. 2d 324 (1970); Petty v. Associated Transport, 4 N.C. App. 361, 167 S.E. 2d 38 (1969).\nIn this case, the Deputy Commissioner\u2019s findings are supported by competent evidence and therefore cannot be disturbed by this Court. Plaintiffs assignments of error are without merit and are overruled.\nPlaintiff bases the remainder of her brief on a motion for a new trial which she filed with the Industrial Commission after notice of appeal to this Court was entered. Neither this motion nor the Commission\u2019s ruling thereon was made a part of the record on appeal. More importantly, she did not make a motion for a new trial based on newly discovered evidence in this Court. Therefore, we are unable to entertain or consider her motion.\nIt is well-settled in North Carolina that when an appeal for compensation under the provisions of the Worker\u2019s Compensation Act has been duly docketed in the Superior Court [now the Court of Appeals], upon an appeal from an award of the Industrial Commission, the Superior Court [now the Court of Appeals] \u201chas the power in a proper case to order a rehearing of the proceeding by the Industrial Commission on the ground of newly discovered evidence, and to that end to remand the proceeding to the Commission.\u201d Byrd v. Lumber Co., 207 N.C. 253, 255, 176 S.E. 572, 573 (1934); McCulloh v. Catawba College, 266 N.C. 513, 146 S.E. 2d 467 (1966). In this case, however, we have no motion for a rehearing before us. However well-founded plaintiff\u2019s motion might be, we cannot consider it.\nFor the foregoing reasons, the judgment of the Industrial Commission is\nAffirmed.\nChief Judge MORRIS and Judge HEDRICK concur.", "type": "majority", "author": "MARTIN (Robert M.), Judge." } ], "attorneys": [ "Ketner and Rankin by David B. Post, for the plaintiff-appellant.", "Brinkley, Walser, McGirt, Miller & Smith by G. Thompson Miller, for the defendant-appellee." ], "corrections": "", "head_matter": "BETTY LANKFORD, Employee Plaintiff v. DACOTAH COTTON MILLS, Employer and INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY, Carrier Defendants\nNo. 8110IC471\n(Filed 2 March 1982)\n1. Master and Servant \u00a7 96.5\u2014 workers\u2019 compensation \u2014 findings supported by evidence\nIn a workers\u2019 compensation action in which plaintiff alleged a back injury she received was a result of an accident in the course of her employment, the Commission\u2019s finding that plaintiff\u2019s injury did not arise by accident because the testimony of the plaintiff was not credible was supported by competent evidence and therefore could not be disturbed on appeal.\n2. Master and Servant \u00a7\u00a7 87.2, 95\u2014 motion for new trial after notice of appeal \u2014 neither motion nor ruling part of the record\nWhere plaintiff filed a motion for a new trial with the Industrial Commission after notice of appeal to an appellate court was entered, and neither the motion nor the Commission\u2019s ruling was made a part of the record on appeal, and a motion for a new trial based on newly discovered evidence was not made in the appellate court, the appellate court was unable to entertain or consider the plaintiff\u2019s motion.\nAPPEAL by plaintiff from the Opinion and Award of the Industrial Commission entered 13 January 1981. Heard in the Court of Appeals 6 January 1982.\nThis case involves a back injury sustained by plaintiff on 27 February 1979, while employed as a weaver in defendant\u2019s cotton mill. Plaintiff\u2019s evidence tended to show that as she pulled a loom handle in the normal course of her employment, the handle jerked her toward the loom causing an injury to her back. The defendant\u2019s evidence consists primarily of the tesitmony of a representative of defendant\u2019s insurance carrier. He testified that plaintiff did not mention to him being jerked into the machine by the machine\u2019s loom handle and that she told him that she sustained her injury while standing on her tiptoes, leaning forward with both arms extended in order to tie in the loose ends at the top of her machine.\nThe Deputy Commissioner found that plaintiff sustained an injury arising out of and in the course of her employment. However, the Deputy Commissioner found, as a matter of law, that plaintiff\u2019s injury did not arise by accident, because the testimony of the plaintiff was not credible. The Full Commission, in a split decision, sustained the opinion and award of the Deputy Commissioner that plaintiff\u2019s injury was not compensable under the Worker\u2019s Compensation Act because it was not the result of an accident as contemplated by N.C. Gen. Stat. \u00a7 97-2(6).\nKetner and Rankin by David B. Post, for the plaintiff-appellant.\nBrinkley, Walser, McGirt, Miller & Smith by G. Thompson Miller, for the defendant-appellee." }, "file_name": "0250-01", "first_page_order": 282, "last_page_order": 285 }