Taylor v. ML Hatcher Pick-Up & Delivery Serv.

263 S.E.2d 788 (1980)

Junior Rex TAYLOR, Plaintiff-Employee, v. M. L. HATCHER PICK-UP AND DELIVERY SERVICE, Defendant-Employer, and Lumbermens Mutual Casualty Company, Defendant-Insurance Carrier.

No. 7910IC803.

Court of Appeals of North Carolina.

March 18, 1980.

*790 Tuggle, Duggins, Meschan, Thornton & Elrod by Joseph E. Elrod, III and Richard L. Vanore, Greensboro, for defendants-appellants.

Franklin Smith, Elkin, for plaintiff-appellee.

ROBERT M. MARTIN, Judge.

Defendants contend the Industrial Commission erred in denying their request that the Industrial Commission order plaintiff employee to submit to an independent physical examination pursuant to G.S. 97-27. G.S. 97-27 provides in pertinent part:

After an injury, and so long as he claims compensation, the employee, if so requested by his employer or ordered by the Industrial Commission, shall . . . submit himself to an examination, at reasonable times and places, by a duly qualified physician or surgeon designated and paid by the employer or the Industrial Commission.

The defendant correctly argues that the language of the statute is mandatory as to the employee. The employee "shall" submit himself to an examination if it is requested by an employer or ordered by the Industrial Commission. The language of the statute, however, imposes no mandatory obligation on the Industrial Commission to order an examination. When an employer requests the Commission to order an employee to submit to an examination, whether the Commission grants or denies the employer's request is within the discretion of the Commission.

A similar question was decided in Cabe v. Parker-Graham-Sexton, Inc., 202 N.C. 176, 162 S.E. 223 (1932) in which the Court considered whether the right to require an autopsy, granted to the employer and the Industrial Commission under G.S. 97-27, is a matter within the discretion of the Industrial Commission. In Cabe, defendant insurance carrier requested of the administrator of the deceased employee's estate the right to have an autopsy performed after deceased employee had been interred. The request was denied. There was no formal request made upon the Industrial Commission until the case was called for hearing. The Commission in its discretion denied defendants' motion for an autopsy and the exercise of the Commission's discretion was upheld by the Supreme Court.

In the present case, defendants knew that the sole issue for determination at the hearing was the issue of permanent disability. Defendants presented no evidence at the hearing. When asked by the court, "Anything for the defendants?", defendants replied, "No, Your Honor." Defendants did not make their request for an independent examination until after the hearing had been completed. Furthermore, defendants did not show that an independent examination by another physician would change the plaintiff's disability rating. The Commission was within its sound discretion in denying defendants' request.

Defendants further contend that the Commission erred in failing to strike Dr. Fahl's testimony pertaining to the 25 percent permanent partial disability rating to plaintiff's left hand as without probative value. The Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony. The court may set aside findings of fact only on the ground they lack evidentiary support. The court does not have the right to weigh the evidence and decide the issue on the basis of its weight. The court's duty goes no further than to determine whether the record contains any evidence tending to support the finding. Inscoe v. Industries, Inc., 292 N.C. 210, 215, 232 S.E.2d 449, 452 (1977). In the case sub judice, Dr. Fahl was stipulated by defendants to be an expert witness. Dr. Fahl testified that he "briefly" examined the plaintiff and that his calibration of plaintiff's disability was on a "very subjective basis." Dr. Fahl also testified that if he had a longer time to evaluate plaintiff he did not think it would affect *791 the 25 percent disability rating. The Commission did not err in weighing this testimony and deciding the issue of the percent of plaintiff's disability on the basis of its weight.

Affirmed.

CLARK and ERWIN, JJ., concur.