FRANCES HUFFMAN,
ROGER D. KENNEDY,
MARILYN DAWN KIDD,
THOMAS P. MARSH,
FRANKIE McCASKILL,
DEBORAH K. ROGERS, and
SHARON P. SCOTT,
EMPLOYEES,
PLAINTIFFS
v
.
From the North Carolina
Industrial Commission
I.C. File Nos.
480967, 564609,
500200, 481108, 481105,
509087, 924348, and 521226
MOORE COUNTY,
EMPLOYER;
SEDGWICK OF THE CAROLINAS, INC.,
CARRIER,
DEFENDANTS.
George W. Lennon, for Plaintiffs-appellants.
Teague, Campbell, Dennis, & Gorham, L.L.P., by George W.
Dennis III and J. Matthew Little, for Defendants-appellees.
WYNN, Judge.
The full Commission is charged with the duty of making
ultimate findings of fact, and “recitations of the testimony of
each witness do not constitute findings of fact.”
(See footnote 1)
Because thefull Commission merely recited the testimony of witnesses on the
issue of spoliation, we remand this matter for further findings.
The plaintiffs in this case are Frances Huffman, Roger D.
Kennedy, Marilyn Dawn Kidd, Thomas P. Marsh, Frankie McCaskill,
Deborah K. Rogers, and Sharon P. Scott, former Moore County
employees who worked in the Community Services Building owned by
the County. The defendants in this case are Moore County and its
insurance carrier, Sedgwick of the Carolinas, Inc.
From February 1995 to April 1996, Plaintiffs filed workers'
compensation claims alleging multiple effects of toxin exposure
that occurred while they occupied the Community Services Building
owned by Moore County. Defendants denied all of the claims on the
basis that no injury occurred and Plaintiffs' complaints did not
arise from causes and conditions characteristic of and peculiar to
their respective employments to which members of the general public
were not equally exposed.
Plaintiffs' claims were consolidated for hearing and heard
before Deputy Commissioner Crystal R. Stanback on 22 August 2001
through 24 August 2001. Deputy Commissioner Stanback awarded
Plaintiffs Scott, McCaskill, Kidd, Huffman, and Rogers permanent
and total disability compensation at their respective compensation
rates; and awarded Plaintiffs Marsh and Kennedy temporary total
disability compensation at their respective compensation rates.
Defendants' appeal to the full Commission resulted in an order
denying Plaintiffs' claims. From that denial, Plaintiffs appeal to
this Court. Plaintiffs raise several issues on appeal, but we reach only
the issue regarding the Commission's failure to make proper
findings of fact related to the issue of spoilation of relevant
evidence.
Under North Carolina law, the full Commission is charged with
the duty of making ultimate findings of fact, and “recitations of
the testimony of each witness do not constitute findings of fact.”
Chloride, Inc. v. Honeycutt, 71 N.C. App. 805, 806, 323 S.E.2d 368,
369 (1984) (citation omitted) (emphasis in original).
Here, findings of fact number 27 and 28 relate to the issue of
spoliation:
27. Bobby Lake, a Moore County HVAC
technician, testified at the hearing before
the Deputy Commissioner that he worked in the
CSB but had no symptoms. He also testified
that, although the HVAC had been set up so
that there was no fresh air intake, some
amounts of outdoor air could get into the
building through the doors. He further
testified that he never intentionally
destroyed any materials, which could be
considered evidence in this matter.
28. David McNeill, County Manager, also
testified at the hearing before the Deputy
Commission[er] that he had prepared a list of
the names of all persons who had worked in the
CSB. This list included 37 Moore County
employees, including plaintiffs, Philip Boles
and Alison Melvin, Assistant County Manager.
Mr. McNeill testified that none of the
plaintiffs ever personally requested that he
maintain samples for testing of materials
removed from the building.
(emphasis added). These findings show that the full Commission
merely recited what Lake and McNeill testified to and did not make
a “conscious choice between the conflicting versions of theincident in question which emerged from all the evidence
presented.” Id.
Without proper findings of fact, we cannot perform our
function of reviewing the record to see if there is competent
evidence to support the full Commission's findings of fact.
Moreover, “[w]hen [a] matter is appealed to the full Commission .
. . it is the duty and responsibility of the full Commission to
decide all of the matters in controversy between the parties."
Vieregge v. N.C. State University, 105 N.C. App. 633, 638, 414
S.E.2d 771, 774 (1992) (internal quotes and citation omitted). In
this case, the full Commission failed to complete this task.
Because the issue of spoliation was not resolved by the full
Commission, we remand this matter to the full Commission for
further findings.
Remanded.
Judges BRYANT and GEER concur.
Report per Rule 30(e).
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