                                     NO. COA13-723

                        NORTH CAROLINA COURT OF APPEALS

                               Filed: 4 February 2014


TRACY BEARD,
     Employee,
     Plaintiff,
                                               North Carolina
        v.                                     Industrial Commission
                                               I.C. No. X39221
WAKEMED,
     Employer,

SELF-INSURED (KEY RISK MANAGEMENT
SERVICES, Administrator),
     Defendants.


       Appeal by defendants from Opinion and Award entered 1 February

2013    and   order   entered    8   April    2013   by    the   North   Carolina

Industrial Commission.         Heard in the Court of Appeals 19 November

2013.


       O’Malley Tunstall, PLLC, by Joseph P. Tunstall, III, for
       plaintiff-appellee.

       Cranfill Sumner & Hartzog LLP, by Jaye E. Bingham-Hinch, for
       defendants-appellants.


       STROUD, Judge.


       Defendants     appeal    opinion      and   award    awarding     workers’

compensation benefits to plaintiff and order denying their motion

for reconsideration.      For the following reasons, we affirm.

                                I.    Background
                                       -2-
      On or about 25 April 2011, defendant entered a Form 19,

“EMPLOYER’S REPORT OF EMPLOYEE’S INJURY OR OCCUPATIONAL DISEASE TO

THE INDUSTRIAL COMMISSION” (“report”).                  The report stated that

plaintiff, a staff nurse, “was pulling a patient in their bed and

felt lower back pain.”             On or about 2 May 2011, plaintiff’s

workers’ compensation claim was denied for the following reasons:

            - Your injury was not the result of an
              accident
            - Your injury was not the result of a specific
              traumatic incident
            - Your injury did not arise out of and in the
              course and scope of your employment
            - Credibility     based    on     inconsistent
              inaccurate and/or contradictory information
            - and any other defenses that become known to
              the employer/carrier

      On 12 May 2011, plaintiff requested that her claim be assigned

for a hearing.    On or about 27 May 2011, defendants responded to

plaintiff’s request for a hearing stating “that the plaintiff did

not sustain an injury by accident arising out of and in the course

of   her   employment   and    is    therefore     entitled    to   no   workers’

compensation benefits.”        On or about 13 December 2011, the parties

entered into a “PRE-TRIAL AGREEMENT” wherein they all stipulated

that plaintiff was an employee of defendant WakeMed and that she

sustained an injury on 12 April 2011.                   On 23 May 2012, Deputy

Commissioner    Victoria      M.    Homick   of   the    Industrial   Commission

entered an opinion and award ordering defendants to “pay temporary
                                   -3-
total disability compensation[,]” “all past and future medical

expenses incurred or to be incurred as a result of plaintiff’s

compensable injury[,]” “reasonable attorney’s fee[,]” and “costs.”

On 29 May 2012, defendants appealed the Deputy Commissioner’s

opinion and award.   On 1 February 2013, the Full Commission of the

Industrial Commission entered an opinion and award again ordering

defendant’s to “pay temporary total disability compensation[,]”

“all past and future medical expenses incurred or to be incurred

as a result of Plaintiff’s compensable injury[,]” “reasonable

attorney’s fee[,]” and “costs.”

     On   28   February    2013,   defendants    filed   a   “MOTION    FOR

RECONSIDERATION”      On   7   March     2013,   plaintiff   objected   to

defendants’ motion for reconsideration because, inter alia, it was

not timely filed. On 7 March 2013, defendants contended that their

motion should be heard because it was timely filed.           On 8 April

2013, the Full Commission entered an order denying defendants’

motion to reconsider. Defendants appealed both the opinion and

award of the Full Commission and the order denying their motion to

reconsider.

           II.   Findings of Fact and Conclusions of Law

     Defendants challenge various findings of fact as unsupported

by the competent evidence and several conclusions of law as
                                       -4-
unsupported by the findings of fact.

                The standard of review in workers’
           compensation cases has been firmly established
           by the General Assembly and by numerous
           decisions of this Court. Under the Workers’
           Compensation Act, the Commission is the sole
           judge of the credibility of the witnesses and
           the weight to be given their testimony.
           Therefore, on appeal from an award of the
           Industrial Commission, review is limited to
           consideration of whether competent evidence
           supports the Commission’s findings of fact and
           whether the findings support the Commission’s
           conclusions of law. This court’s duty goes no
           further than to determine whether the record
           contains any evidence tending to support the
           finding.

Richardson v. Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660,

669   S.E.2d   582,    584    (2008)   (citations,    quotation   marks,   and

brackets omitted).

A.    Compensable Injury

      Defendants contend that fifteen findings of fact “are not

supported by the evidence of record” and three conclusions of law

“are not supported by findings of fact or the applicable law”

regarding “whether plaintiff sustained a compensable injury by

accident to her back in the form of a specific traumatic incident,

arising out of and in the course of her employment with WakeMed

that aggravated her pre-existing low back condition[.]” (Original

in all caps.) (Quotation marks omitted.)              While a cursory glance

of    defendant’s     brief    makes   it    appear    that   defendants   are
                                        -5-
appropriately challenging the evidence, findings of fact, and

conclusions of law, a thorough reading reveals that defendants are

actually asking this Court to reweigh the evidence before the

Commission in favor of defendants.            This we cannot do, as “this

[C]ourt’s duty goes no further than to determine whether the record

contains any evidence         tending to support the finding.”              Id.

(emphasis added).          The fact that the evidence may support a

different finding of fact is irrelevant if there is “any evidence

tending to support” the findings of fact actually made by the

Commission.    Id.

     Defendants also argue that “the only evidence that plaintiff

did sustain such an injury is plaintiff’s own testimony” and

“plaintiff    was    not   honest[;]”     however,   the   evidence   contains

statements    by    medical       professionals   regarding   the   fact   that

plaintiff     sustained       a     compensable    injury.      Furthermore,

plaintiff’s own testimony is evidence which the Commission may

weigh for credibility and if it determines the evidence is credible

it may base findings of fact regarding plaintiff’s compensable

injury upon such evidence;          defendant has failed to cite any legal

authority stating otherwise.

     Defendants further contend that “the Commission erroneously

ignored all the evidence regarding plaintiff’s failure to disclose
                                      -6-
her back history to WakeMed and her medical providers and made no

findings of fact regarding this evidence or the evidence that

plaintiff was reprimanded for failing to assist a co-worker on a

problematic procedure[.]”        Yet the fact that the Commission may

not have made a finding of fact regarding every piece of evidence

presented   does   not    mean   that   the   Commission    “ignored”     that

evidence, but only that it did not determine that a finding of

fact   regarding   such    evidence     was   necessary    to   support    its

determination.     Quoting and citing appropriate law regarding the

Commission’s duty to make all the material findings of fact

necessary to support the conclusions of law is not actually an

argument to this Court as to why specific findings of fact are

necessary in this case.          Defendants have failed to demonstrate

that the Commission ignored any material evidence upon which a

finding must be made.

       Defendants also challenge the “medical evidence” before the

Commission because “there is no medical evidence that plaintiff

sustained an injury at the time she alleges” as the deposed doctors

were basing their opinions “on plaintiff’s subjective history[.]”

Defendants have pointed to no legal authority that doctors may not

rely on “plaintiff’s subjective history” both in diagnosing and

treating her; indeed, defendants seem to imply that all “subjective
                                 -7-
history”   should   be   disregarded.   But   a   doctor’s   medical

determination is not rendered incompetent because it is based upon

a patient’s subjective reports of her history and symptoms as a

part of a medical evaluation.     See Yingling v. Bank of America,

___ N.C. App. ___, ___, 741 S.E.2d 395, 406 (2013) (“Especially

when treating pain patients, a physician’s diagnosis often depends

on the patient’s subjective complaints, and this does not render

the physician’s opinion incompetent as a matter of law.” (citation,

quotation marks, and brackets omitted)).    Defendants have made no

legal arguments showing that the doctors’ depositions should not

be included as competent evidence before the Commission simply

because the doctors relied in part upon plaintiff’s subjective

history in both diagnosing and treating plaintiff, and we can think

of none.    As such, the Commission was allowed to weigh the

evidence, including the depositions, as it saw fit and make the

appropriate and essential findings of fact based upon them.      See

id.   Based on the foregoing reasons, the arguments regarding the

findings of fact and conclusions of law are overruled.       We will

not reweigh the evidence before the Commission, so there is no

valid legal argument for this Court to consider from defendants

regarding any of the challenged findings of fact or conclusions of

law as to plaintiff’s compensable injury.
                                      -8-
B.     Disability

       Defendants also contend that five findings of fact “are not

supported     by    the   competent    evidence    of     record”   and   three

conclusions of law “are not supported by the findings of fact or

applicable law.       Defendants’ challenge to the five findings of

fact   and   three    conclusions     of   law   center   around    one   issue:

defendants argue that the Commission erred in concluding that

“plaintiff met her burden of proof pursuant to the second prong of

Russell v. Lowes Product Distrib., 108 N.C. App. 762, 425 S.E.2d

454 (1993)[.]”

       Russell provides,

                  The burden is on the employee to show
             that he is unable to earn the same wages he
             had earned before the injury, either in the
             same employment or in other employment. The
             employee may meet this burden in one of four
             ways [including] . . . (2) the production of
             evidence that he is capable of some work, but
             that he has, after a reasonable effort on his
             part, been unsuccessful in his effort to
             obtain employment[.]

Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765-66,

425 S.E.2d 454, 457 (1993) (citation omitted).

       Defendants direct our attention to statements Dr. Daniel

Albright made during his deposition which could be construed as

evidence that plaintiff should not be under work restrictions.

But Dr. Alright did place a 20 pound lifting restriction on
                               -9-
plaintiff, at the very least to relieve her of the anxiety she had

about returning to work because of the “exacerbation of her

previous low back condition” caused by her “on-the-job injury[.]”

Thus, the Commission had to weigh and consider Dr. Albright’s

statements along with the other evidence and based upon this could

properly find that

          Dr. Albright diagnosed Plaintiff with a low
          back strain and recommended physical therapy
          and work conditioning. Dr. Albright released
          Plaintiff to return to work with restrictions
          of no lifting over twenty pounds. . . . Dr.
          Albright opined, to a reasonable degree of
          medical certainty, that the April 12, 2011
          work incident exacerbated a pre-existing low
          back condition.

Furthermore, plaintiff’s husband testified that it had been “very

difficult for her” to find work due to her back pain, and plaintiff

spent “four or five hours a day looking” for jobs and sending

resumes to prospective employers.    Plaintiff also testified that

she had attempted to return to work taking a part-time position

and eventually moving to a full-time position which she had held

until a week or two before her hearing before the Industrial

Commission but ultimately voluntarily left because she “had a lot

of back pain” and “would come at the end of the day and it was

hard for [her] to move.”    We believe that the evidence and the

Commission’s findings of fact regarding the evidence support the
                                     -10-
conclusion that “Plaintiff has proven disability under the second

prong of Russell, through evidence that she made reasonable efforts

to find work but has been unsuccessful in obtaining employment.”

Accordingly, this argument is overruled.

                       III. Motion for Reconsideration

     Defendants also contend the Commission erred in denying their

motion to reconsider which they argue “contain[ed] a Motion to

Consider and Admit . . . Newly Discovered Evidence[.]” Defendants’

motion is entitled “DEFENDANTS’ MOTION FOR RECONSIDERATION OF FULL

COMMISSION’S      OPINION   AND    AWARD”    and   includes    30    numbered

paragraphs.       Defendants contend that two of these paragraphs

contain   their    motion   to    consider   and   admit   newly    discovered

evidence. The alleged “newly discovered evidence” is information

that plaintiff obtained another job after the hearing before the

Commission; this is not “newly discovered evidence” since this

evidence did not exist at the time of the hearing.             See Parks v.

Green, 153 N.C. App. 405, 412, 571 S.E.2d 14, 19 (2002).                  “The

newly discovered evidence must have been in existence at the time

of the trial.      This limitation on newly discovered evidence has

been justified on the firm policy ground that, if the situation

were otherwise, litigation would never come to an end.”                    Id.

(citation and quotation marks omitted).
                              -11-
     Defendants’ brief addresses only the denial of the motion to

consider and admit newly discovered evidence and does not present

any argument regarding the denial of the motion to the extent that

it might be considered as a motion for reconsideration.    In any

event, both motions are reviewed for abuse of discretion.     See

generally Cummins v. BCCI Const. Enters., 149 N.C. App. 180, 185,

560 S.E.2d 369, 373 (“the Commission did not manifestly abuse its

discretion by denying defendants’ Motion for Reconsideration”),

disc. review denied, 356 N.C. 611, 574 S.E.2d 678 (2002); Owens v.

Mineral Co., 10 N.C. App. 84, 87, 177 S.E.2d 775, 777 (1970)

(“Ordinarily, a motion for further hearing on the grounds of

introducing additional or newly discovered evidence rests in the

sound discretion of the Industrial Commission.”); cert. denied,

277 N.C. 726, 178 S.E.2d 831 (1971).

          The test for abuse of discretion is whether a
          decision is manifestly unsupported by reason,
          or so arbitrary that it could not have been
          the result of a reasoned decision.     Because
          the reviewing court does not in the first
          instance make the judgment, the purpose of the
          reviewing court is not to substitute its
          judgment in place of the decision maker.
          Rather, the reviewing court sits only to
          insure that the decision could, in light of
          the factual context in which it is made, be
          the product of reason.

Burnham v. McGee Bros. Co., Inc., ___ N.C. App. ___, ___, 727

S.E.2d 724, 728 (2012) (citation, quotation marks, and ellipses
                                   -12-
omitted), disc. review dismissed and cert. denied, 366 N.C. 437,

737 S.E.2d 106 (2013).

     As the “newly discovered evidence” which the defendants asked

the Commission to consider is not actually “newly discovered

evidence,” see Parks, 153 N.C. App. at 412, 571 S.E.2d at 19, the

Commission did not abuse its discretion in denying the motion.

Defendants further contend that the Commission erred in failing to

address   their   motion   to   consider   and   admit   newly   discovered

evidence; however, even according to defendants, this “motion” was

two paragraphs as part of a larger motion to reconsider.             It is

obvious that the Commission denied defendants’ entire motion.           The

Commission is not required to file a separate order or even add a

separate sentence specifically denying this additional “motion”

embedded within the motion to reconsider, since the order denying

the motion to reconsider is clearly a denial of all arguments made

within that motion.    This argument is overruled.

                                IV.   Conclusion

     For the foregoing reasons, we affirm.

     AFFIRMED.

     Judges MCGEE and BRYANT concur.
