Cannady v. Gold Kist , 43 N.C. App. 482 ( 1979 )

259 S.E.2d 342 (1979) 43 N.C. App. 482

Rosa CANNADY, Employee,
v.
GOLD KIST, Employer, Aetna Life and Casualty Insurance Company, Carrier.

No. 7910IC148.

Court of Appeals of North Carolina.

November 6, 1979.

Carolyn McAllaster, Durham, for plaintiff-appellee.

Spears, Barnes, Baker & Hoff by Alexander H. Barnes, Durham, for defendants-appellants.

HEDRICK, Judge.

It is the duty of the Industrial Commission to make findings of fact and conclusions of law to determine the issues raised by the evidence in a case before it. G.S. § 97-84; Beach v. McLean, 219 N.C. 521, 14 S.E.2d 515 (1941). Specific findings covering the crucial questions of fact upon which a plaintiff's right to compensation depends are required, Morgan v. Thomasville Furniture Industries, Inc., 2 N.C.App. 126, 162 S.E.2d 619 (1968), and the importance of this responsibility cannot be overstated. As our Supreme Court has observed,

It is impossible to exaggerate how essential the proper exercise of the fact-finding authority of the Industrial Commission is to the due administration of the Workmen's Compensation Act. 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 obvious that the court cannot ascertain whether the findings of fact are supported by the evidence unless the Industrial Commission reveals with at least a fair degree of positiveness what facts it finds. 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.

Morgan v. Thomasville Furniture Industries, Inc., supra at 132, 162 S.E.2d at 623 [quoting from Thomason v. Cab Co., 235 N.C. 602, 70 S.E.2d 706 (1952)].

The critical issue raised by the evidence in the present case is whether the calcification of tendons and ligaments in plaintiff's shoulders, resulting in a ten percent permanent partial disability to both arms, is an occupational disease within the meaning of G.S. § 97-53(13). This issue engenders two distinct findings of fact which must be made: (1) an explicit description of plaintiff's duties in performing her occupation, and (2) a determination of whether such duties caused the calcification and resulting disability to either or both of plaintiff's arms. With respect to the resolution of this issue, the Commission, by adopting as its own the findings and conclusions embodied in Deputy Commissioner Denson's opinion and award, made the following relevant findings:

FINDINGS OF FACT

1. Plaintiff was reemployed by defendant employer in the early part of 1975 as a draw hand. Her job was to reach into chickens which were hanging on a line and pull out the insides. This involved repetitive reaching overhead, primarily with her right arm.

2. When plaintiff began her employment, the line on which the chickens moves was not automated. Sometime before Christmas 1975, the line became automated. The machine was supposed to remove the insides of the chickens so the number of employees used as draw hands was reduced. In point of fact, however, the machine often failed to remove all the insides and, in addition, made the line much faster. The rapidity of plaintiff's repetitive overhead reaching increased. The situation was aggravated by the fact that plaintiff was training other draw hands and felt responsible for the thoroughness of their work as well. Although using primarily her right arm for the work, plaintiff also was frequently using her left.

. . . . .

9. Plaintiff's calcification of both arms was caused by her employment and the rapid, repetitive overhead reaching.

The reaching plaintiff was required to do in her employment is characteristic of and peculiar to her occupation. [Emphasis added.]

The difficulty with these findings is that the record is devoid of any evidence that plaintiff's duties required "rapid, repetitive overhead reaching." This error is compounded by the fact that the doctor who testified as to causation originally based his opinion on the assumption that the plaintiff, in performing her duties, was required to repeatedly reach overhead. Thus, his opinion as to causation was rendered feckless and accordingly invalidated the deputy commissioner's finding that the calcification of the ligaments and tendons in plaintiff's arms was caused by her performance of her duties as a draw hand.

Apparently aware of the deficiencies in the findings and conclusions made by the hearing officer in the opinion and award dated 15 September 1977, the Commission, when the matter came before it for the first time, remanded the case "for additional testimony" because the evidence before it "lacks sufficient clarity. . . ." Specifically and significantly, the Commission requested a clarification of the evidence regarding the nature of the reaching plaintiff was required to do. At the subsequent hearing, both Dr. Urbaniak and the personnel manager of the defendant Gold Kist were examined extensively on that issue. Clearly, the evidence adduced at this final hearing was sufficient to support a finding that the calcification in one or both of plaintiff's arms was caused by the "intermittent pressure" or the "chronic stress" of repeatedly reaching out with her arms.

However, when the matter came back before the full Commission after the hearing it ordered, it inexplicably chose to ignore the plain evidence of how plaintiff performed her job. That evidence is manifest throughout this record; yet, the final opinion and award of the Commission contains the same infirmities as it apparently recognized when it remanded the case for a clarification of the evidence regarding the manner in which the plaintiff did her job. In short, the Commission has failed to make findings and conclusions sufficient to determine the critical issue raised by the evidence.

While there is evidence in this record to support a conclusion that this plaintiff has sustained an occupational disease because of the calcification in her shoulders, Booker v. Duke Medical Center, 297 N.C. 458, 256 S.E.2d 189 (1979); 3 Larson, Workmen's Compensation Law § 79.52 (1976), it is not for the appellate court to tell the Commission what findings to make upon remand. But, it is for this Court to require the Commission to carry out its duties with respect to making definitive findings required by the statute. For the reasons stated, the opinion and award of the Commission dated 30 October 1978 is vacated, and the cause is remanded for more definitive findings and conclusions based on the evidence in the present record.

Vacated and remanded.

CLARK and HARRY C. MARTIN, JJ., concur.