McPhaul v. Sewell

36 N.C. App. 312 | N.C. Ct. App. | 1978

WEBB, Judge.

Plaintiffs first assign as error Deputy Commissioner Roney’s rescheduling of the case at the close of the plaintiffs’ evidence. Plaintiffs argue that they were greatly prejudiced by staking out their case and then having Deputy Commissioner Roney keep the suit open for defendants to obtain a medical expert of their choosing. We do not believe the rescheduling of the case constitutes error. The Legislature empowered the Industrial Commission to make rules in so far as they are not inconsistent with the Workmen’s Compensation Act, G.S. 97-80. Rule XVI of the Rules of the Industrial Commission, applicable at the time of the hearing, provided in part that the “postponement or continuance of a duly scheduled hearing will rest entirely in the discretion of the Commission.” We find no abuse of discretion in Deputy Commissioner Roney’s actions. See also Green v. Eastern Constr. Co., 1 N.C. App. 300, 161 S.E. 2d 200 (1968); Mason v. North Carolina Highway Comm., 273 N.C. 36, 159 S.E. 2d 574 (1968).

Plaintiffs next contend that the expert testimony by defendants’ witness, Dr. Arthur Davis, was improper, incompetent and inadmissible. Specifically, plaintiffs object to Dr. Davis’ testimony on the grounds that his opinions were not based on his personal knowledge or observation of deceased as a patient or on proper hypothetical questions addressed to him. See State v. David, 222 N.C. 242, 22 S.E. 2d 633 (1942); State v. DeGregory, 285 N.C. 122, 203 S.E. 2d 794 (1974). Without deciding whether the testimony of Dr. Davis was elicited by proper hypothetical questions, we hold that plaintiffs have waived their right to object to the admissibility of defendants’ evidence by failing to object to the admission of the evidence at the time of its introduction. Maley v. Thomasville Furniture Co., 214 N.C. 589, 200 S.E. 438 (1938); Steelman v. Benfield, 228 N.C. 651, 46 S.E. 2d 829 (1948). During direct examination of Dr. Davis by defendants’ attorney, the hypothetical question asked Dr. Garison by plaintiffs’ attorney at the initial hearing was read to Dr. Davis along with a series of other questions designed to attack the plaintiffs’ expert testimony and offer an alternative conclusion as to the relation between the Minerva cast and Klebsiella pneumonia. Plaintiffs’ attorney did not object to any specific questions or line of questions. Even if the testimony of Dr. Davis should have been excluded upon timely objection, the plaintiffs’ failure to object entitles the evidence to be considered for whatever probative value it may have. Reeves v. Hill, 272 N.C. 352, 158 S.E. 2d 529 (1968).

Finally, plaintiffs contend that the Deputy Commissioner’s finding of fact No. 16, that the treatment of deceased for his fractured neck did not cause, accelerate or aggravate Klebsiella pneumonia and the conclusion that the claim was not compensable, is not supported by competent evidence. It is settled in this State that if findings of fact are supported by competent evidence in the record, the courts upon appeal are bound by those findings. Thomason v. Cab Co., 235 N.C. 602, 70 S.E. 2d 706 (1952). However, it is plaintiffs’ argument that the testimony of Dr. Davis was not competent and, therefore, the only evidence from which the Commission could base its opinion was that of plaintiffs. Assuming, arguendo, that Dr. Davis’ testimony was improper and should not have been considered, it does not necessarily follow that plaintiffs’ claim is compensable. The plaintiffs had the burden of proof to show that the Klebsiella pneumonia was related to the neck injury. Matthews v. Carolina Standard Corp., 232 N.C. 229, 60 S.E. 2d 93 (1950). If the Deputy Commissioner did not believe the plaintiffs’ evidence he should have held against them. The Commission sits as the trier of fact in workmen’s compensation proceedings and it is the sole judge of the credibility of witnesses. Blalock v. Roberts Co., 12 N.C. App. 499, 183 S.E. 2d 827 (1971). Uncontroverted testimony of a witness does not have to be accepted as true. Shook v. Construction Co., 25 N.C. App. 231, 212 S.E. 2d 413 (1975). Even though the record may contain evidence which would support a contrary finding, “[u]pon appeal this Court does not have the right to weigh the evidence and decide the issue on the weight given the evidence by this Court.” Shook v. Construction Co., supra. It may be that Deputy Commissioner Roney found the evidence of plaintiffs untruthful or unpersuasive and thus denied plaintiffs’ claim. Yet, whatever Deputy Commissioner Roney’s and the full Commission’s reasons were for denying the claim, we cannot, from the record in this case, hold that it was error to deny plaintiffs’ claim without usurping the Commission’s province as fact finder.

Due to the decision we have reached in this opinion, we will not address the cross-assignments of error raised by defendants.

Affirmed.

Judges PARKER and VAUGHN concur.