Weaver v. American National Can Corp. , 123 N.C. App. 507 ( 1996 )

473 S.E.2d 10 (1996)

James Ralph WEAVER, Plaintiff-Employee,
v.
AMERICAN NATIONAL CAN CORPORATION, Defendant-Employer.

No. COA95-745.

Court of Appeals of North Carolina.

August 6, 1996.

Patterson, Harkavy & Lawrence, L.L.P. by Henry N. Patterson, Jr. and Martha A. Geer, Raleigh, for plaintiff-appellant.

Teague, Campbell, Dennis & Gorham, L.L.P. by Henry W. Gorham and Karen K. Prather, Raleigh, for defendant-appellee.

EAGLES, Judge.

Plaintiff argues that the record does not support the Industrial Commission's findings of fact and that the Industrial Commission's conclusions of law are not supported by its findings of fact. In Workers' Compensation cases, the Industrial Commission's findings of fact are conclusive on appeal if there is any competent evidence to support them, even if there is conflicting evidence. Richards v. Town of Valdese, 92 N.C.App. 222, 225, 374 S.E.2d 116, 118 (1988), disc. review denied, 324 N.C. 337, 378 S.E.2d 799 (1989). The Industrial Commission's conclusions of law are fully reviewable on appeal. Id. Before 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. Harrell v. J. P. Stevens & Co., 45 N.C.App. 197, 205, 262 S.E.2d 830, 835, disc. review denied, 300 N.C. 196, 269 S.E.2d 623 (1980).

Here, the Industrial Commission, without receiving further evidence, reviewed the opinion and award of the deputy commissioner based on the record before the Commission and made findings of fact detailing plaintiff's version of the events of 9 April 1992 plus the following two findings of fact:

6. The Full Commission, however, does not accept plaintiff's testimony as credible, based on plaintiff's testimony and demeanor, and the testimony of other witnesses.

7. Since plaintiff's testimony is not credible, plaintiff did not prove that any injury which he may have sustained on or about 9 April 1992 resulted from a specific traumatic incident of the work assigned, or from an interruption of his normal work routine by the introduction of unusual conditions likely to result in unexpected consequences.

The Industrial Commission's finding of fact number seven provides that because the Industrial Commission did not find plaintiff's testimony credible, plaintiff had not proven his case. The Industrial Commission "is the sole judge of the credibility of the witness and the weight to be given its testimony," Dye v. Shippers Freight Lines, 118 N.C.App. 280, 284, 454 S.E.2d 845, 848 (1995), and the Industrial Commission may find that a witness is not credible based on the witness's demeanor during the hearing. Dye, 118 N.C.App. at 283, 454 S.E.2d at 848. However, here, the Industrial Commission made no mention of plaintiff's coworkers' testimony which corroborated plaintiff's testimony. Mr. Jernigan testified that plaintiff appeared to be in a lot of pain after he swung at the obstruction in the storage bin: "He's usually like a bull, just real energetic and moving around. But he was—he was in pain." Mr. Jernigan also testified that plaintiff told him that plaintiff "felt like something busted loose in [his] back." Mr. Trail testified that plaintiff told him on 9 April 1992 that he thought he had pulled something in his back and Mr. Trail observed plaintiff rubbing his back.

We conclude that the Industrial Commission's finding of fact number seven shows that the Industrial Commission impermissibly disregarded Mr. Jernigan's and Mr. Trail's testimony. Accordingly, this case must be vacated and remanded to the Industrial Commission for it to consider all of the evidence, make complete findings of fact and proper conclusions of law, and enter an appropriate order.

Vacated and remanded.

JOHN and WALKER, JJ., concur.