Anderson v. LINCOLN CONSTRUCTION COMPANY

144 S.E.2d 272 (1965) 265 N.C. 431

John ANDERSON, Jr., Employee,
v.
LINCOLN CONSTRUCTION COMPANY, Employer, and United States Casualty Company, Carrier.

No. 120.

Supreme Court of North Carolina.

October 13, 1965.

Hamilton, Hamilton & Phillips, by Luther Hamilton, Morehead City, for plaintiff appellant.

Marshall & Williams, by Lonnie B. Williams, Wilmington, for defendant appellees.

HIGGINS, Justice.

The Commission found the claimant had suffered a total temporary disability by accident arising out of and in the course of his employment and awarded compensation upon the basis of the finding. The employer and its compensation carrier challenged the finding and the award upon the sole ground the evidence is insufficient to show causal relationship between the claimant's accident and his injury. The Superior Court sustained the challenge and reversed the award. The appeal requires this Court to review the evidence and to determine, not what the evidence proves or fails to prove, but to find whether the Commission had before it any competent evidence sufficient to support its finding.

The claimant admitted a history of osteomyelitis and an operation therefor about 10 years prior to his accident. Admitting the history, nevertheless, he testified he had worked as a crane operator for at least five years prior to October 3, 1963. "I haven't been to a doctor, haven't been sick a day, haven't been out of work a day and I have worked an average of 40 to 45 hours a week for the last five years. I haven't been able to do anything since the accident." Dr. Gainey, while guarded about what caused the disability, found the claimant entered the hospital the day following the accident, stated he had been in an accident. The doctor found contusions and bruises of the left hip and to less extent of his right hip and of his right lateral chest wall, "and was not able to perform any type of employment." May we say the Commission did not have before it any competent evidence showing causal connection between the accident and the injury?

The Workmen's Compensation Act, G.S. § 97-86, vests the Industrial Commission with full authority to find essential facts. The Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony. The courts may set aside findings of fact only upon the ground they lack evidentiary support. Blalock v. City of Durham, 244 N.C. 208, 92 S.E.2d 758; Creighton v. Snipes, 227 N.C. 90, 40 S.E.2d 612. The court does not have the right to weigh the evidence and decide the issue on the basis of its weight. The court's duty goes no further than to determine whether the record contains any evidence tending to support the finding. Brice v. Robertson House Moving, Wrecking and Salvage Co., 249 N.C. 74, 105 S.E.2d 439. Of course, where there is no evidence of causal relationship between the accident and injury the claim must be denied. Or, if the disability is due to pre-existing physical injuries, it must be denied. But where the evidence is conflicting, the Commission's finding of causal connection between the accident and the disability is conclusive. Tucker v. Lowdermilk, 233 N.C. 185, 63 S.E.2d 109.

In this case the evidence was sufficient to support the finding. Hence the Superior Court committed error in vacating the award of temporary disability. The Superior Court will remand the cause to the Industrial Commission for further disposition as the law requires.

Reversed.