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authoritative.
NO. COA03-1600
NORTH CAROLINA COURT OF APPEALS
Filed: 15 March 2005
RUTH MARIE CLARK RAY,
Employee,
Plaintiff
v. North
Carolina Industrial Commission
I.C.
File No. 017483
PET PARLOR,
Employer,
and
STATE AUTOMOBILE INSURANCE COMPANY,
Carrier,
Defendants.
Appeals 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.
Wayne
O. Clontz, for plaintiff-appellant.
Teague,
Campbell, Dennis & Gorham, L.L.P., by Season D. Atkinson, for
defendant-appellants.
MARTIN, Chief Judge.
Plaintiff filed this workers’ 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 compensability and plaintiff received total
temporary compensation while she was out of work and underwent cosmetic surgery
“to correct misalignment of the vermillion border of plaintiff’s upper lip” due
to the dog bite. Her plastic surgeon,
Dr. Siciliano, determined that she had reached maximum medical improvement on
21 May 2001.
The 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 “from a distance of six feet or less.” As a result of the scar, plaintiff’s 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:
9. As a direct and proximate consequence of plaintiff’s 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’ Compensation Act is $1,450.00.
Based 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’s fee of twenty‑five percent (25%). Defendants were ordered to “pay all
medical[] expenses incurred by plaintiff as a result of this injury by
accident” and costs.
Plaintiff appealed the deputy commissioner’s award to the
Full Commission. Due to a
mis-communication by the plaintiff’s attorney, “plaintiff was not present at
oral arguments” scheduled for 2 December 2002.
The Commission specially scheduled a “viewing of the plaintiff” for 7
May 2003, and defendants’ counsel appeared but neither plaintiff nor her
attorney appeared. Upon being contacted
by the Commission, plaintiff’s counsel advised that plaintiff could not attend
the viewing due to a lack of transportation.
Plaintiff’s attorney apparently sought “a further continuance” to which
defendants objected.
The Commission proceeded to issue its Opinion and Award,
determining “that 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 plaintiff’s attorney that plaintiff
has received subsequently additional facial injuries from an unrelated
incident.” 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’s 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.
_________________________
On appeal, plaintiff argues that the Commission’s 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’s
disfigurement pursuant to Rule 701 (9) of the Workers Compensation Rules.
When reviewing an opinion and award of the Industrial
Commission, we determine “(1) whether the Commission’s findings of fact are
supported by any competent evidence in the record; and (2) whether the
Commission’s findings justify its conclusions of law.” Goff v. Foster Forbes
Glass Div., 140 N.C. App. 130, 132‑33, 535 S.E.2d 602, 604
(2000). The Commission performs the
“ultimate fact-finding” function under our Workers Compensation Act. Adams v. AVX Corp., 349 N.C. 676, 680-81, 509 S.E.2d 411, 413 (1998), reh’g
denied, 350 N.C. 108, 532 S.E.2d 522 (1999) and a determination of serious
facial disfigurement “is a question of fact to be resolved by the
Commission.” 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’s 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 “may set aside a finding of
fact only if it lacks evidentiary support.” Holley v. ACTS, Inc., 357 N.C. 228, 231, 581 S.E.2d 750, 752
(2003).
In this case, the Commission did not base its findings on
competent evidence; rather, the Commission relied upon the “description given
by the deputy commissioner” and photographs of plaintiff which had been
excluded as evidence representative of plaintiff’s disfigurement by the deputy
commissioner. Industrial Commission Rule
701 (9) requires that “[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.”
Worker’s Comp. R. of N.C. Indus. Comm’n 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’s
rules.
Remand for new hearing.
Judges CALABRIA and GEER concur.