West v. Stevens

169 S.E.2d 517 (1969) 6 N.C. App. 152

Sallie C. WEST, Employee
v.
J. P. STEVENS, Employer; Liberty Mutual Insurance Company, Carrier.

No. 6918IC440.

Court of Appeals of North Carolina.

September 17, 1969.

Norman B. Smith, Greensboro, for plaintiff.

Smith, Moore, Smith, Schell & Hunter, by Richmond G. Bernhardt, Jr., Greensboro, for defendants.

BROCK, Judge.

Plaintiff assigns as error Findings of Fact No. 5 and No. 7, and the conclusion based thereon that plaintiff is entitled to an award on the basis of a 12.5 percent permanent partial disability. Plaintiff argues that the only testimony before the Commission was that of Dr. John A. Lusk, and that his testimony supports only a finding of a 25 or 30 percent disability. Dr. Lusk testified that in his opinion "[h]er disability is about 25 to 30 percent of the left leg."

Dr. Lusk also testified as follows:

"The thrombo-phlebitis found in both legs and the embolus in one of her lungs could have been caused by the fall at home when she broke her right leg on October 7, 1965. I would divide my opinion about 50-50, as to which is more probable, whether it was caused by the fall on October 7, or the incident at work in September, 1965. I anticipate that Mrs. West will make slow, gradual improvement in her left leg. I do not anticipate the rating of 25 to 30 percent disability of that leg will get any worse. I think it may get better; I certainly hope so. I'm continuing to treat her. I believe she can improve some, but actually never get the full use back of her leg she had prior to the injury, but I hope we can get better use out of it.

"Moving from 25 percent to 10 or 15 percent would be what I would feel is considerable improvement. That would be optimistic."

It is well established that the findings of fact by the Industrial Commission are conclusive and binding upon the courts when supported by competent evidence. Taylor v. Stonewall Jackson Manual Training School, 5 N.C.App. 188, 167 S.E.2d 787. Also, the Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Taylor v. Stonewall Jackson Manual Training School, supra.

In its consideration of claims the Industrial Commission is not compelled to find in accordance with testimony of any particular witness; its function is to weigh and evaluate the entire evidence and determine as best it can where the truth lies.

We see no error in the finding and conclusion complained of.

Affirmed.

BRITT and VAUGHN, JJ., concur.