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Torres v. Smith9/6/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Plaintiff sustained an admittedly work-related injury on 14 October 2000. After a hearing on 13 December 2002, Deputy Commissioner Lorrie Dollar awarded plaintiff a limited period oftemporary total disability compensation and ongoing partial disability benefits pursuant to N.C. Gen. Stat. § 97-30 (2000). Defendants appealed to the Full Commission, which affirmed the Deputy Commissioner's decision on 4 February 2004. The Commission also awarded plaintiff a ten percent (10%) penalty due to defendants' late payment, as well as attorneys' fees as a "sanction for [defendants'] failure to comply with the statutory requirements in terminating indemnity payments and due to their bad faith in the handling of this claim" pursuant to N.C. Gen. Stat. § 97-88 (2000) and I.C. Rule 802 (2000). Defendants appeal.
The evidence tends to show that plaintiff began working for Jeffrey Smith Farm, and the North Carolina Grower's Association, as a seasonal laborer from Mexico under the H2A program in July 2000. The H2A program provides employment to immigrant laborers in North Carolina pursuant to a visa that allows them to work during the agricultural growing season. On 14 October 2000, plaintiff sustained a compensable injury to a finger on his left hand. Dr. Marvin Vice provided most of the medical care to plaintiff for this injury. Dr. Vice examined plaintiff on 31 October 2000 and found a displaced fracture of the finger. Plaintiff underwent surgery to repair the fracture on 9 November 2000, and Dr. Vice provided follow-up care for approximately twelve weeks. On 4 January 2001, Dr. Vice operated on plaintiff to remove pins and wires from hisleft hand. Dr. Vice last saw plaintiff on 31 January 2001, at which time he noted that plaintiff still had "a lot of restriction of motion" of the affected finger. Dr. Vice advised plaintiff to work on stretching the injured finger, to improve the range of motion. Following this appointment, plaintiff returned to Mexico.
Before returning to Mexico, plaintiff worked for one day, on 26 January 2001, at Jeffrey Smith Farm, cutting and peeling pumpkins. On 29 January 2001, defendants filed a Form 60 and a Form 28. Defendants paid plaintiff temporary total disability from 23 October 2000 to 25 January 2001, but have paid nothing further.
This Court reviews decisions of the Industrial Commission to determine "whether any competent evidence supports the Commission's findings of fact and whether the findings of fact support the Commission's conclusions of law." Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530 SE.2d 549, 553 (2000) (citing Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998). We may not "weigh the evidence and decide the issue on the basis of its weight," but must only determine whether the record contains "any evidence tending to support the finding." Adams, 349 N.C. at 681, 509 S.E.2d at 414 (internal citation and quotation marks omitted). However, the Commission's conclusions of law are reviewed de novo. Grantham v. R.G. Barry Corp., 127 N.C. App. 529, 534, 491 S.E.2d 678, 681 (1997), disc. review denied, 347 N.C. 671, 500 S.E.2d 86 (1998). Defendants argue that the Commission's findings of fact do not support its conclusion that plaintiff is entitled to compensation for total disability from 27 January 2001 to 29 April 2001; that there was insufficient evidence of record to support a finding that plaintiff was disabled from 24 January 2001 to 29 April 2001; and that t
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