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Lankford v. Mills

Filed: March 2, 1982.

BETTY LANKFORD, EMPLOYEE PLAINTIFF
v.
DACOTAH COTTON MILLS, EMPLOYER AND INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY, CARRIER DEFENDANTS



Appeal by plaintiff from the Opinion and Award of the Industrial Commission entered 13 January 1981. Heard in the Court of Appeals 6 January 1982.

Martin (Robert M.), Judge. Chief Judge Morris and Judge Hedrick concur.

Martin

We first will consider plaintiff's second, third and fourth assignments of error which in effect question whether the Industrial Commission's findings of fact and conclusions of law were supported by competent evidence. In this case, Deputy Commissioner Shuping doubted the credibility of plaintiff's testimony that the loom handle jerked her injuring her back. Plaintiff had given a prior inconsistent statement to Tom Veal, the insurance adjuster, which statement indicated that plaintiff's injury occurred while she was performing her normal and routine job duties.

In Blalock v. Roberts Co., 12 N.C. App. 499, 504, 183 S.E.2d 827, 830 (1971), Judge Hedrick, speaking for the Court stated:

The findings of fact of the Industrial Commission are conclusive and binding on appeal if supported by competent evidence in the record even though the record contains evidence which would support a contrary finding. Hollman v. City of Raleigh, 273 N.C. 240, 159 S.E.2d 874 (1968). The

Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony; it may accept or reject all of the testimony of a witness; it may accept a part and reject a part. Robbins v. Nicholson, 10 N.C. App. 421, 179 S.E.2d 183 (1971); Morgan v. Furniture Industries, Inc., 2 N.C. App. 126, 162 S.E.2d 619 (1968); Anderson v. Motor Co., 233 N.C. 372, 64 S.E.2d 265 (1951). The Commission has the duty and authority to resolve conflicts in the testimony of a witness or witnesses. If the findings made by the Commission are supported by competent evidence they must be accepted as final truth. Rooks v. Cement Co., 9 N.C. App. 57, 175 S.E.2d 324 (1970); Petty v. Associated Transport, 4 N.C. App. 361, 167 S.E.2d 38 (1969).

In this case, the Deputy Commissioner's findings are supported by competent evidence and therefore cannot be disturbed by this Court. Plaintiff's assignments of error are without merit and are overruled.

Plaintiff bases the remainder of her brief on a motion for a new trial which she filed with the Industrial Commission after notice of appeal to this Court was entered. Neither this motion nor the Commission's ruling thereon was made a part of the record on appeal. More importantly, she did not make a motion for a new trial based on newly discovered evidence in this Court. Therefore, we are unable to entertain or consider her motion.

It is well-settled in North Carolina that when an appeal for compensation under the provisions of the Worker's Compensation Act has been duly docketed in the Superior Court [now the Court of Appeals], upon an appeal from an award of the Industrial Commission, the Superior Court [now the Court of Appeals] "has the power in a proper case to order a rehearing of the proceeding by the Industrial Commission on the ground of newly discovered evidence, and to that end to remand the proceeding to the Commission." Byrd v. Lumber Co., 207 N.C. 253, 255, 176 S.E. 572, 573 (1934); McCulloh v. Catawba College, 266 N.C. 513, 146 S.E.2d 467 (1966). In this case, however, we have no motion for a rehearing before us. However well-founded plaintiff's motion might be, we cannot consider it.

For the foregoing reasons, the judgment of the Industrial Commission is


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