Faircloth v. NC DEPT. OF TRANSP.

416 S.E.2d 409 (1992)

106 N.C. App. 303

Billy D. FAIRCLOTH v. N.C. DEPARTMENT OF TRANSPORTATION.

No. 9110IC1281.

Court of Appeals of North Carolina.

May 19, 1992.

*410 Popkin and Associates, by Samuel S. Popkin, Jacksonville, for plaintiff, appellant.

Atty. Gen. Lacy H. Thornburg, by Asst. Atty. Gen. William H. Borden, Raleigh, for defendant, appellee.

HEDRICK, Chief Judge.

The order of the full Commission denying plaintiff's claim under the Worker's Compensation Act fails to demonstrate that plaintiff received the review to which he was entitled under G.S. 97-85 and Workers' Compensation Rules of the N.C. Industrial Commission 701 which in pertinent part provides:

(1) A letter expressing an intent to appeal shall be considered notice of appeal to the Full Commission within the meaning of N.C.G.S. 97-85, provided that it clearly specifies the Order of Opinion and Award from which appeal is taken. (2) After receipt of notice of appeal, the Industrial Commission will supply to the appellant Form 44 upon which he must state the grounds for his appeal. The grounds must be stated with particularity, including the specific errors allegedly committed by the Commissioner or Deputy Commissioner and the pages in the transcript on which the alleged errors are recorded....

We explained in Joyner v. Rocky Mount Mills, 92 N.C.App. 478, 374 S.E.2d 610 (1988), Vieregge v. N.C. State University, 105 N.C.App. 633, 414 S.E.2d 771 (1992), and Braswell v. Pitt County Memorial Hospital, 106 N.C.App. 1, 415 S.E.2d 86 (1992) (Hedrick, C.J., concurring), the duties of the full Commission when considering an appeal from the Deputy Commissioner pursuant to G.S. 97-85 and Rule 701. Had plaintiff, in the present appeal to this Court, assigned as error the failure of the full Commission to afford him the review to which he was entitled under G.S. 97-85 and Rule 701, and had plaintiff additionally demonstrated on appeal to us that such failure of the full Commission to provide him with such review was prejudicial, we would remand the proceeding to the full Commission to "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." See Braswell.

While the decision entered by the full Commission in the present case indicates on its face that plaintiff was not afforded the review on appeal from the Deputy Commissioner to which he was entitled pursuant to G.S. 97-85, plaintiff has not assigned error to such failure upon the part of the full Commission. Nor does plaintiff argue that he was prejudiced in any way by any *411 error upon the part of the full Commission. Plaintiff's sole question raised on appeal is set out in his brief as follows:

1. WHETHER THE EMPLOYEE PRESENTED CREDIBLE EVIDENCE TO PROVE THAT HE WAS INJURED BY AN ACCIDENT DURING THE COURSE OF HIS EMPLOYMENT WITH HIS EMPLOYER?

We have examined each of the findings of fact set out in the Deputy Commissioner's decision and find them to be supported by the evidence in the record. We also find that the conclusions of law drawn therefrom are supported by the findings, and that the findings and conclusions support the decision entered by the Deputy Commissioner. Therefore, the decision of the full Commission on appeal from the decision of the Deputy Commissioner will be affirmed.

Affirmed.

LEWIS and WALKER, JJ., concur.