Wagoner v. Douglas Battery Manufacturing Co. , 80 N.C. App. 163 ( 1986 )

341 S.E.2d 120 (1986)

Bobby WAGONER, Employee, Plaintiff
v.
DOUGLAS BATTERY MANUFACTURING COMPANY, Employer, and
Hartford Insurance Company, Carrier, Defendants.

No. 8510IC1023.

Court of Appeals of North Carolina.

April 1, 1986.

David B. Hough and Lawrence J. Fine, Winston-Salem, for plaintiff-appellee.

Petree, Stockton, Robinson, Vaughn, Glaze & Maready by Robert J. Lawing and

Jane C. Jackson, Winston-Salem, for defendants-appellants.

WHICHARD, Judge.

Defendants contend the Commission erred by applying an improper standard to the evidence, and that its determination thus was based on a misapprehension of the law. We agree.

This Court recently stated:

The plenary powers of the Commission are such that upon review, it may adopt, modify or reject the findings of fact of the Hearing Commissioner, and in doing so may weigh the evidence and make its own determination as to the weight and credibility of the evidence. Hollar v. Furniture Co., 48 N.C.App. 489, 269 S.E.2d 667 (1980). The Industrial Commission has the duty and authority to resolve conflicts in the testimony whether medical or not, and the conflict should not always be resolved in favor of the claimant. Rooks v. Cement Co., 9 N.C. App. 57, 175 S.E.2d 324 (1970).

Cauble v. Macke Co., 78 N.C.App. 793, ___, 338 S.E.2d 320, 321 (1986).

Here, as in Cauble, the Commission did not weigh the evidence. The above-quoted language from the Opinion and Award indicates that the Commission "apparently acted under the mistaken impression that the law required a finding for the plaintiff if there was any competent evidence [,viewed in the light most favorable to plaintiff,] to support such a finding." Cauble, 78 N.C. App. at ___, 338 S.E.2d at 321-22. The authority cited by the Commission, Buck v. Procter & Gamble Co., 52 N.C.App. 88, 278 S.E.2d 268 (1981), applies to review of evidence by appellate courts upon appeal from the Industrial Commission. Appellate courts must follow the "any competent evidence" standard in deciding whether the evidence permits a determination by the Industrial Commission, which is the fact-finder. Buck, supra. The fact-finder, however, is not required so to view the evidence. Rather, its duty is to weigh the evidence, resolve conflicts therein, and make its own determination as to weight and credibility. Cauble, 78 N.C.App. at ___, 338 S.E.2d at 321.

"When, as here, facts are found by the Commission under a misapprehension of the law, we are empowered to remand the case so that the evidence may be considered in its true legal light." Cauble, 78 N.C.App. at ___, 338 S.E.2d at 322, citing Mills v. Fieldcrest Mills, 68 N.C.App. 151, 314 S.E.2d 833 (1984). Accordingly, the Opinion and Award is reversed, and the cause is remanded to the Industrial Commission to make findings of fact and conclusions of law consistent with this opinion.

Reversed and remanded.

WELLS and COZORT, JJ., concur.