Gaines v. LD Swain & Son, Inc.

235 S.E.2d 856 (1977)

Anthony GAINES, Employee, v. L. D. SWAIN & SON, INC., Employer, Reliance Insurance Company, Carrier.

No. 7614IC922.

Court of Appeals of North Carolina.

July 6, 1977.

*859 Pearson, Malone, Johnson, DeJarmon & Spaulding by W. G. Pearson, II, and T. Mdodana Ringer, Jr., Durham, for plaintiff-appellant.

Newsom, Graham, Strayhorn, Hedrick, Murray, Bryson & Kennon by O. William Faison, Jr., and Lewis A. Cheek, Durham, for defendant-appellee.

BRITT, Judge.

Plaintiff contends that the Industrial Commission erred in finding and concluding that he did not sustain an injury by accident nor an occupational disease within the meaning of the Workmen's Compensation Act. We do not reach the question stated at this time.

On appeal from an order of the Industrial Commission the jurisdiction of the courts is limited to the questions of law whether there was competent evidence before the commission to support its findings of fact and whether such findings justify the legal conclusions and decision of the commission. Henry v. Leather Co., 231 N.C. 477, 57 S.E.2d 760 (1950); Snead v. Mills, Inc., 8 N.C.App. 447, 174 S.E.2d 699 (1970). It is also settled that the findings of the Industrial Commission are conclusive on appeal when supported by competent evidence even though there is evidence that would have supported findings to the contrary. G.S. 97-86, Hales v. Construction Co., 5 N.C.App. 564, 169 S.E.2d 24 (1969).

While the commission is not required to make findings as to each fact presented by the evidence, it is required to make specific findings with respect to crucial facts upon which the question of plaintiff's right to compensation depends. Smith v. Construction Co., 27 N.C.App. 286, 218 S.E.2d 717 (1975). If the findings of fact of the commission are insufficient to enable the court to determine the rights of the parties upon the matters in controversy, the proceeding must be remanded to the commission for proper findings of fact. Young v. Whitehall Co., 229 N.C. 360, 49 S.E.2d 797 (1948). As stated in Thomason v. Cab Co., 235 N.C. 602, 605-6, 70 S.E.2d 706, 709 (1952):

"The findings of fact of the Industrial Commission should tell the full story of the event giving rise to the claim for compensation. They must be sufficiently positive and specific to enable the court on appeal to determine whether they are supported by the evidence and whether the law has been properly applied to them. . . . It is likewise plain that the court cannot decide whether the conclusions of law and the decision of the Industrial Commission rightly recognize and effectively enforce the rights of the parties upon the matters in controversy if the Industrial Commission fails to make specific findings as to each material fact upon which those rights depend."

In the case sub judice, we think the commission failed to make sufficient findings of fact to support its order. The crucial "findings" made by the commission are mere recitals of the evidence and are not sufficiently positive and specific to enable this court to judge the propriety of the order. Thomason v. Cab Co., supra.

In findings of fact numbered 6 and 7, the commission found:

"6. Dr. Wardar is of the opinion that the operation of the drill on May 8, 1974, under the circumstances could not have caused a sudden bilateral onset of hearing loss preceding the McPherson tests on May 9, 1974. Further, based on the test results and the relation of sudden onset of bilateral hearing loss on May 8, 1974 *860 by plaintiff Dr. Wardar is of the opinion that plaintiff's hearing loss is more likely not based on exposure to loud noise, specifically the use of the air drill. In cases where industrial loud noise is the cause for hearing loss, typically the hearing loss extends over a long period of time with the loss being gradual in onset and once the patient is removed from the high noise level, the patient's hearing tends to stabilize. Plaintiff was removed from his employment environment since he has not worked from May 9, 1974, but his hearing continued to decline. "7. Dr. Wardar thinks it more likely that plaintiff's hearing loss was due to a viral illness although there was no evidence of such viral illness upon medical examination; suffice to say that the doctor's opinion is that plaintiff's hearing loss is not due to the exposure to noise in the employment on May 8, 1974."

These are not appropriate findings of fact. Obviously, the expert testimony was crucial to a proper determination, particularly as to any causal relationship between plaintiff's alleged injury by accident and his employment. However, the recitation of Dr. Wardar's opinion is not sufficient in this case.

Finding of fact number 7 states that Dr. Wardar thinks it is more likely that plaintiff's hearing was due to a viral illness. We fail to perceive how this can constitute a positive finding to support the commission's determination. Although medical testimony is oftentimes less than precise, the commission must do more than recite the expert's opinion.

The crucial finding necessary to determine the rights of these parties is whether plaintiff's loss of hearing was caused by the operation of the jackhammer. The necessary conclusion based on this finding would be whether this was an injury by accident arising out of and in the course of employment. The only determinative "finding of fact" in this instance is "suffice to say that the doctor's opinion is that plaintiff's hearing loss is not due to the exposure to noise in the employment on May 8, 1974". We hold that this finding is insufficient to support the commission's conclusion of law.

Furthermore, we note that in finding of fact number 3, the commission found that "[t]he record is devoid of evidence as to exactly how long the air drill was being used." Mr. Swain testified that "we ran the drill for approximately twenty minutes all totaled." The finding was not based on evidence.

For failure of the commission to make sufficient findings of fact to support its conclusions of law, the opinion appealed from is vacated and this cause is remanded to the Industrial Commission for proper findings of fact, conclusions of law and determination of the rights of the parties. Allred v. Woodyards, Inc., 32 N.C.App. 516, 232 S.E.2d 879 (1977).

Vacated and remanded.

VAUGHN and ARNOLD, JJ., concur.