Lucas v. Thomas Built Buses, Inc.

364 S.E.2d 147 (1988)

Robert R. LUCAS, Employee, Plaintiff, v. THOMAS BUILT BUSES, INC., Employer, and Nationwide Mutual Insurance Company, Carrier, Defendants.

No. 8710IC714.

Court of Appeals of North Carolina.

February 2, 1988.

*149 Hunter, Hodgman, Greene, Donaldson, Cooke and Elam by Robert S. Hodgman, Greensboro, for plaintiff-appellant.

Smith, Helms, Mulliss and Moore, by J. Donald Cowan, Jr., Greensboro, for defendants-appellees.

SMITH, Judge.

Plaintiff assigns as error the Commission's finding of fact and conclusion of law that plaintiff was not disabled after 12 March 1985. Plaintiff contends that the Commission erred in concluding that there was no evidence to show a work related disability after 12 March 1985. We agree. Dr. Maultsby testified before the Deputy Commissioner as to his treatment and diagnosis of plaintiff's condition. It was Maultsby's testimony that 1) after April 1985 (when Maultsby first saw plaintiff), plaintiff was still unable to work; 2) on 3 October 1985, he released plaintiff for light work; 3) on 16 December 1985, he released plaintiff for unrestricted work; and 4) plaintiff presently had 5-7½% residual disability in his back. The Deputy Commissioner found as a fact that Dr. Maultsby had diagnosed plaintiff as having a bulging disc, the same diagnosis originally made by Dr. Blaylock following plaintiff's accident.

It is the exclusive province of the Industrial Commission to weigh and evaluate the evidence before it and find the facts. Anderson v. Construction Co., 265 N.C. 431, 144 S.E.2d 272 (1965). Indeed, the Workers' Compensation Act provides that the Commission's findings of fact are conclusive. G.S. 97-86. On the other hand, a reviewing court's function is to determine whether the Commission's findings of fact are supported by competent evidence and whether the conclusions of law are correct. Byers v. Highway Comm., 275 N.C. 229, 166 S.E.2d 649 (1969); Henry v. Leather Co., 231 N.C. 477, 57 S.E.2d 760 (1950); Smith v. Paper Co., 226 N.C. 47, 36 S.E.2d 730 (1946). In the case at bar, the Commission's conclusion that there was no evidence that plaintiff was temporarily totally disabled after 12 March 1985 is not supported by the record.

Defendants contend that there was competent evidence to support the Commission's finding that plaintiff reached maximum medical improvement on 12 March 1985, and that therefore the Commission's findings are conclusive under G.S. 97-86. It is true that competent evidence was presented by Dr. Blaylock as to such improvements. However, defendants' contention is misplaced. The error is not in the Commission's finding but in its conclusion that there was no evidence that plaintiff was disabled after 12 March 1985. Conclusions of law are reviewable by this court to determine their evidentiary basis. Walston v. Burlington Industries, 49 N.C. App. 301, 271 S.E.2d 516 (1980), rev'd on other grounds, 304 N.C. 670, 285 S.E.2d 822 (1982). In light of Dr. Maultsby's testimony regarding plaintiff's further disability, this conclusion of "no evidence" is not supported by the record. The decision whether to believe Maultsby, Blaylock, or both is within the discretion of the Commission, but that decision must be supported by the evidence. McGill v. Lumberton, 218 N.C. 586, 11 S.E.2d 873 (1940); Porterfield v. RPC Corp., 47 N.C.App. 140, 266 S.E.2d 760 (1980).

Plaintiff also assigns as error the Commission's denial of treatment expense for the services rendered by Dr. Maultsby based on the fact that Maultsby was plaintiff's second physician of choice. In Conclusion of Law No. 2, the Commission *150 states that plaintiff had a right to a second opinion if he had not already exercised that right. A reading of G.S. 97-25, regarding medical treatment of employees, fails to indicate any limitation on the number of physicians an employee may choose. The only requirements are that the physician be approved by the Commission, and treatment must facilitate recovery and rehabilitation. Schofield v. Tea Co., 299 N.C. 582, 264 S.E.2d 56 (1980). The determinations for the Commission to make are whether there was Commission approval of plaintiff's choice of Dr. Maultsby and whether treatment was to effect a cure or rehabilitation.

Finally, plaintiff assigns error to the Commission's Conclusion of Law No. 1 that plaintiff was not entitled to compensation because there was no evidence showing a causal connection between the accident and plaintiff's condition after 12 March 1985. We agree. The record contains two agreements, IC Forms 21 and 26, in which defendants agree to pay compensation for plaintiff's back injury. The record also reveals that the only issue before the Commission was whether plaintiff's compensation should continue, not whether his alleged disability was the result of his accident. G.S. 97-17 provides that, "no party to any agreement for compensation approved by the Industrial Commission shall thereafter be heard to deny the truth of matters set forth, unless it shall be made to appear ... that there had been error due to fraud, misrepresentation, undue influence or mistake." This is a case of admitted liability and the Commission's conclusion that there was no evidence to show causation is not a basis for denying plaintiff's award.

For the reasons set forth above, the Order of the Commission is vacated and the matter remanded for such order as may be appropriate consistent with this opinion.

Vacated and remanded.

ARNOLD and WELLS, JJ., concur.