Appeal by Plaintiff from Opinion and Award entered 29
September 2004 by the North Carolina Industrial Commission. Heard
in the Court of Appeals 20 September 2005.
The Law Office of Faith Herndon, by Faith Herndon, for
plaintiff-appellant.
Attorney General Roy Cooper, by Assistant Attorney General
Patrick S. Wooten, for defendant-appellee.
WYNN, Judge.
Plaintiff appeals from the 29 September 2004 Opinion and Award
of the Industrial Commission denying additional benefits to her
husband, Edsel McLawhorn.
(See footnote 1)
Plaintiff contends that the Commission
failed to make adequate findings of fact to support its conclusion
of law that Mr. McLawhorn did not suffer a compensable occupational
disease. Because there was no occupational disease claim properlybefore the Industrial Commission, we affirm the full Commission's
Opinion and Award.
Mr. McLawhorn worked as a plumber for the Caswell Center from
1974 until 1993. His duties included maintenance and repair work
and required him to kneel and bend, work on his knees, climb
ladders, carry heavy equipment, and occasionally dig ditches.
On 27 August 1993, Mr. McLawhorn suffered an injury by
accident when he slipped in a ditch while carrying a pipe on the
job. He reported his injury to the plant nurse who referred him to
Dr. Eugene Pate, who diagnosed him with a possible meniscus tear.
Mr. McLawhorn sought a second opinion from Dr. Max Kasselt, an
orthopaedic surgeon, who diagnosed him with calcium pyrophosate
induced crystal arthritis in his left knee. On 17 September 1993,
Defendant completed a Form 19 report of the 27 August 1993
accident, which stated the injury as being Mr. McLawhorn's “left
knee.”
On 24 September 1993, Mr. McLawhorn alleged another injury to
his left knee from using a shovel. Dr. Kasselt placed him on light
duty at work for four weeks with restrictions, including no shovel
or ditch work. In October 1993, Dr. Kasselt performed diagnostic
arthroscopy on Mr. McLawhorn's knee. Dr. Kasselt found no evidence
of any meniscal pathology (tear) that could account for Mr.
McLawhorn's symptoms, but he did find advanced degenerative joint
disease involving three compartments of Mr. McLawhorn's left knee.
In a physician's note dated 15 October 1993, Dr. Kasselt stated
that Mr. McLawhorn had an arthritic condition which preceded hiswork injury, but that his knee was temporarily aggravated by the
injury.
On 10 November 1993, Mr. McLawhorn and Defendant signed a Form
21 Agreement for Compensation for Disability for a period of 3 and
5/7 weeks. Defendant stated on the Form 21 that the accident
resulted in injury to Mr. McLawhorn's “left knee.” Pursuant to the
Form 21 and the Industrial Commission's approval, Defendant paid
Mr. McLawhorn for all time lost due to his left knee problems from
September through October 1993, as well as his medical bills from
Dr. Kasselt.
On 29 November 1993, Dr. Kasselt noted that Mr. McLawhorn was
at maximum medical improvement and gave him permanent restrictions
of no prolonged repetitive bending, climbing or kneeling, as well
as no prolonged working in ditches. On 19 January 1994, Dr.
Kasselt diagnosed Mr. McLawhorn with three compartment degenerative
joint disease, calcium pyrophosphate arthropy, and status post
arthroscopy. Dr. Kasselt further stated that Mr. McLawhorn's knee
was predestined to fail. In response to Mr. McLawhorn's request
for information regarding his permanent disability, Dr. Kasselt
stated that his knee condition was degenerative and was not work
related. Dr. Kasselt gave Mr. McLawhorn a fifty percent disability
rating due to the degenerative tear and arthritis in his knee.
Mr. McLawhorn did not work again after 4 February 1994. On 9
February 1994, Dr. Kasselt saw Mr. McLawhorn and diagnosed him with
polyarticular psoriatic arthritis with involvement of the left
finger and both knees. Mr. McLawhorn went on short-term disabilitydue to degenerative arthritis on 5 April 1994. On 13 March 1995,
Mr. McLawhorn wrote a resignation letter in which he stated, “I
sincerely regret having to leave but due to arthritis in my knees,
ankles, and hands [sic] I have no choice.” On 6 April 1995, Mr.
McLawhorn went on long-term-state disability due to his arthritic
condition.
(See footnote 2)
On 5 January 2001, Mr. McLawhorn filed a Form 33 Request for
Hearing, seeking additional disability benefits related to this
claim. In its response to Mr. McLawhorn's Form 33, Defendant
stated “Claimant's arthritic conditions preceded his injuries at
work.” Defendant also denied any occupational disease claim.
A hearing was held before Deputy Commissioner Phillip A.
Holmes on 25 July 2002. An Opinion and Award was filed on 30
October 2002, denying Mr. McLawhorn's claim for additional
benefits. On appeal, the full Commission issued its Opinion and
Award on 29 September 2004, adopting and affirming the holding of
the Deputy Commissioner. Mr. McLawhorn appealed from the Opinion
and Award of the full Commission.
__________________________________________
On appeal, Plaintiff argues that the full Commission erred in
failing to make adequate findings of fact to support its
conclusions of law in its Opinion and Award. We disagree. The full Commission, having exclusive original jurisdiction
over workers' compensation proceedings, is required to hear the
evidence and file its award, “together with a statement of the
findings of fact, rulings of law, and other matters pertinent to
the questions at issue. . . .” N.C. Gen. Stat. § 97-84 (2004).
While the full Commission is not required to make findings as to
each fact presented by the evidence, it must find those crucial and
specific facts upon which the right to compensation depends so that
a reviewing court can determine on appeal whether an adequate basis
exists for the Commission's award.
Guest v. Brenner Iron & Metal
Co., 241 N.C. 448, 451, 85 S.E.2d 596, 599 (1955).
See also
Singleton v. Durham Laundry Co., 213 N.C. 32, 34-35, 195 S.E. 34,
35-36 (1938) (requiring the full Commission to make specific
findings of fact upon the evidence).
The full Commission's findings of fact “are conclusive on
appeal when supported by competent evidence even though” evidence
exists that would support a contrary finding.
Hilliard v. Apex
Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982). As a
result, appellate review of an award from the full Commission is
generally limited to two issues: (1) whether the findings of fact
are supported by competent evidence; and (2) whether the
conclusions of law are justified by the findings of fact.
Hendrix
v. Linn-Corriher Corp., 317 N.C. 179, 186, 345 S.E.2d 374, 379
(1986). “[W]hen the findings are insufficient to determine the
rights of the parties, the court may remand to the IndustrialCommission for additional findings.”
Hilliard, 305 N.C. at 595,
290 S.E.2d at 684.
Plaintiff first contends that the full Commission failed to
make adequate findings of fact to support its conclusion of law
that Mr. McLawhorn did not suffer a compensable occupational
disease. Because there was no occupational disease claim properly
before the full Commission, we reject Plaintiff's argument.
Mr. McLawhorn filed a Form 33 Request for Hearing on 5 January
2001, seeking “additional benefits” due to a “change in law” for a
workplace injury. Mr. McLawhorn did not note the existence of an
occupational disease on the Form 33. On 14 February 2001,
Defendant filed a Form 33R Response to Request for Hearing and
specifically stated, “No” beside “Occupational disease.” Mr.
McLawhorn did not file an amended Form 33 to address any possible
issue of an occupational disease, nor did he file a Form 18
indicating the existence of an occupational disease claim.
Finally, the issues for determination raised by Mr. McLawhorn and
Defendant for the full Commission were questions concerning only an
injury by accident. None of the issues raised by either party
relate to the existence of an occupational disease. Because the
record on appeal is void of any evidence that an occupational
disease claim was ever properly before the full Commission,
Plaintiff's argument is without merit and her assignment of error
is therefore overruled.
Plaintiff next contends the full Commission failed to make
adequate findings of fact and conclusions of law on whetherDefendant accepted liability for Mr. McLawhorn's degenerative knee
disease in its execution of Form 21. We disagree.
The Commission is only required to make findings as to “those
crucial and specific facts upon which the right to compensation
depends so that a reviewing court can determine on appeal whether
an adequate basis exists for the Commission's award.”
Johnson v.
S. Tire Sales & Serv., 358 N.C. 701, 705, 599 S.E.2d 508, 511
(2004). The full Commission made the following findings of fact
relating to whether Defendant accepted liability of Mr. McLawhorn's
degenerative knee disease in executing Form 21:
2. The employee suffered a work place injury
on August 27, 1993 when he slipped in a ditch,
which was accepted as a compensable claim by
the defendant.
3. The parties entered into a Form 21
agreement for the August 27, 1993 injury which
was approved by the Industrial Commission on
November 16, 1993 for the specified 3 and 5/7
weeks and an average weekly wage of $476.30.
5. On January 19, 1994, Dr. Kasselt made the
diagnosis of three compartment degenerative
joint disease, calcium pyrophosphate arthropy
and status post arthroscopy. He further
stated that McLawhorn's knee was predestined
to fail and in response to McLawhorn's request
of information regarding his permanent
disability, the doctor stated that his
condition was degenerative rather than a
sudden tear and was not work related.
The full Commission made the following conclusion of law
determining whether Defendant accepted liability for Mr.
McLawhorn's degenerative knee disease in its execution of Form 21:
1. The employee suffered a compensable injury
on August 27, 1993 which was completely
resolved as of January 19, 1994 and was nolonger disabling under the Worker's
Compensation Act. N.C.G.S. § 97-2(6).
Here, we find that the full Commission made all necessary
findings of fact to determine whether Defendant accepted liability
for Mr. McLawhorn's degenerative knee disease in its execution of
Form 21. The Form 21 executed by both parties states that Mr.
McLawhorn sustained an injury to his “left knee” on 27 August 1993,
and that Mr. McLawhorn would receive compensation for this injury
for 3 and 5/7 weeks. Additional evidence in the record, including
Mr. McLawhorn's own
testimony about the injury that occurred on 27
August 1993, and the compensation he received thereafter is more
evidence to support the full Commission's Finding of Fact Numbers
Two and Three. With respect to the full Commission's Finding of
Fact Number Five, Dr. Kasselt testified that by January 1994, any
injury suffered by Mr. McLawhorn “was resolved and the patient [Mr.
McLawhorn] was just suffering from the underlying condition of his
knee.” Finally, Dr. Kasselt's note of 19 January 1994, states that
Mr. McLawhorn's “knee was predestined to fail, it just happened to
fail at work.” Because we find some competent evidence to support
the full Commission's Findings of Fact Numbers Two and Three, we
find that the full Commission's Conclusion of Law Number One, that
Mr. McLawhorn was no longer disabling under the Worker's
Compensation Act, was supported by the full Commission's findings
of fact. This assignment of error is therefore overruled.
Finally, Plaintiff contends that the Commission failed to make
adequate findings of fact on the issue of whether Mr. McLawhorn'sdegenerative knee condition was aggravated by his work conditions.
We disagree.
Where the plaintiff asserts that he has a compensable claim
due to workplace aggravation of a pre-existing condition, the full
Commission is obligated to include specific findings regarding the
extent to which the workplace conditions contributed to the onset
of the disability.
See Barnes v. O'Berry Ctr., 55 N.C. App. 244,
247, 284 S.E.2d 716, 718 (1981) (holding that specific findings on
crucial issues are necessary if the reviewing court is to ascertain
whether the findings of fact are supported by competent evidence
and whether the findings support the conclusion of law). Failure
to include such findings is error requiring remand.
See Lawton v.
County of Durham, 85 N.C. App. 589, 592, 355 S.E.2d 158, 160 (1987)
(failure of the full Commission to make sufficient findings to
enable the court to determine the rights of the parties requires
remand).
However, Mr. McLawhorn never asserted that he had a pre-
existing condition that was aggravated by his work conditions. In
the Form 33, Mr. McLawhorn contended that his claim stemmed from a
workplace injury occurring on 27 September 1993. The mere fact
that Dr. Kasselt testified that Mr. McLawhorn may have had a pre-
existing condition aggravated by his work conditions does not place
such a claim properly before the Commission. The Commission was
therefore not required to include any findings regarding workplace
aggravation of a pre-existing condition. Accordingly, this
assignment of error is also overruled. Because we find that there was no claim of a pre-existing knee
condition aggravated by work conditions properly before the full
Commission, Plaintiff's final argument, that the full Commission
erred by failing to consider and place sufficient weight on
portions of Dr. Kasselt's testimony that Mr. McLawhorn's knee
injury was permanently aggravated by work conditions, is therefore
moot.
Affirmed.
Judges CALABRIA and LEVINSON concur.
Report per Rule 30(e).
Footnote: 1