Martinez v. Western Carolina University

MARTIN (Robert M.), Judge. Plaintiff assigns as error the signing and entry of the order by the Industrial Commission. An exception to the signing of an order presents for review the question of whether the facts found support the conclusions of law. Schloss v. Jamison, 258 N.C. 271, 128 S.E. 2d 590 (1962). The determination of negligence, proximate cause and contributory negligence requires an application of principles of law to the determination of facts. These are, therefore, mixed questions of law and fact and so are reviewable on appeal from the commission, the designations “Finding of Fact” or “Conclusion of Law” by the commission not being conclusive. Brown v. Board of Education, 269 N.C. 667, 153 S.E. 2d 335 (1967). It has long been the rule in this State that the Industrial Commission must make findings of fact and conclusions of law to determine the issues raised by the evidence in a case before it. Specific findings covering the crucial questions of fact upon which a plaintiffs right to compensation depends are required. Bailey v. Dept. of Mental Health, 272 N.C. 680, 159 S.E. 2d 28 (1968); Cannady v. Gold Kist, 43 N.C. App. 482, 259 S.E. 2d 342 (1979); Morgan v. Furniture Industries, Inc., 2 N.C. App. 126, 162 S.E. 2d 619 (1968). *240 In the case of Thomason v. Cab Co., 235 N.C. 602, 70 S.E. 2d 706 (1952), Judge Ervin, speaking for the court, stated: If the findings of fact of the Industrial Commission are supported by competent evidence and are determinative of all the questions at issue in the proceeding, the court must accept such findings as final truth, and merely determine whether or not they justify the legal conclusions and decision of the commission. (Citations omitted.) But if the findings of fact of the Industrial 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. (Citations omitted.) Id. at 605, 70 S.E. 2d at 708. It is clear that the plaintiff in this proceeding raised the issue of whether Randy Turpin and Miss Gibbs failed to exercise due care and were actively negligent in failing to obtain timely and adequate examination, diagnosis and treatment of claimant’s injuries. This is a determinative question of fact in the case sub judice, as there was evidence tending to show that the delay in diagnosing the ruptured Achilles tendon enhanced the seriousness of plaintiff’s injury. The issue engenders three distinct findings which must be made: (1) was there an unreasonable delay in examining, diagnosing and treating plaintiff’s injuries?, (2) if so, was the delay caused by Randy Turpin, Miss Gibbs or the infirmary nurse, Alva Porter? and (3) if so, was the delay a proximate cause of plaintiff’s injury? The Full Commission failed to make any of these findings. The rule espoused by this Court in Smith v. Construction Co., 27 N.C. App. 286, 218 S.E. 2d 717 (1975), a case involving a claim under the Workmen’s Compensation Act, is applicable to the case sub judice. In Smith, the claimant had received compensation for temporary total disability under an agreement with his employer. He did not notify the Industrial Commission in writing within the time required by statute that he claimed additional benefits under the Workmen’s Compensation Act. Smith contended that his failure to comply with the statute should not bar his claim for additional compensation because his delay in requesting a hearing resulted from his reliance on *241 representations made by defendant employer’s secretary, and defendant was therefore estopped from pleading the lapse of time as a defense to his claim. The findings of fact of the hearing commissioner included findings that the defendant’s secretary made the statements, that Smith relied on her statements, and that because of his reliance Smith failed to notify the Industrial Commission of his claim for additional benefits within the time required by statute. The hearing commissioner found that defendants were estopped to plead the lapse of time and made an award in favor of plaintiff. Defendants appealed to the full commission who vacated the opinion and award of the hearing commissioner. In denying Smith’s claim due to his failure to notify the Industrial Commission within the statutory time period, the full commission failed to make any findings of fact regarding the statements of defendant employer’s secretary or Smith’s reliance thereon. The full commission merely concluded that “plaintiff has shown no conduct on the part of the defendant which constitutes estoppel.” Id. at 290, 218 S.E. 2d at 719. On appeal by Smith, this Court held “when evidence is presented in support of a material issue raised, it becomes necessary for the commission to make a finding one way or the other.” Id. at 291, 218 S.E. 2d at 720. We stated: While the evidence in the instant case on the question of estoppel was minimal, we think it was sufficient to raise the issue and require a finding of fact on the issue. ... [T]he hearing commissioner made a finding on the question. . .. [The full commission] merely eliminated the hearing commissioner’s finding and made no finding in its place. The conclusion that “plaintiff has shown no conduct on the part of the defendant which constitutes estoppel” is not sufficient to,meet the requirement with respect to findings of fact. (Emphasis added.) Id. In the case sub judice, Deputy Commissioner Roney’s decision and award contained the following findings: 12. The delay in diagnosing the ruptured Achilles tendon increased the difficulty of surgical repair and subsequent treatment. The delay did not, however, contribute to any permanent disability. *242 13. The cumulative conduct of those individuals responsible for supervising claimant’s activities while participating in the Gifted and Talented Program sponsored by Western Carolina University and the conduct of the personnel on duty in the infirmary at 6:15 p.m. on 6 July 1977 wanted for due care under the circumstances attendant herewith. This want of due care materially contributed to the seriousness of the injury requiring claimant’s early departure from the program. The Achilles tendon was sprained during the fall on 2 July 1977. The sprain had developed, by reason of claimant’s continued participation in the program, into a rupture by the evening of 6 July 1977. Claimant was nonetheless allowed to participate in a hike over mountainous terrain on 7 July 1977. He was much worse following this activity. In its decision and order the full commission eliminated these two findings by the hearing commissioner and made the following finding in their place: “12. The defendant’s employees named in plaintiffs pleading were guilty of no negligent conduct proximately causing damage to the minor, J. Michael Martinez.” The commission also found as a fact that Randy Turpin “was directly responsible for the welfare and conduct of the students assigned to him. Miss Gibbs supervised the activities of the various counselors.” Plaintiff was on Randy Turpin’s hall. Both Randy Turpin and Miss Gibbs undertook to care for and supervise the students assigned to them, including the plaintiff herein. We hold that the commission’s finding that “the defendant’s employees ... were guilty of no negligent conduct proximately causing damage to ... Martinez” is not sufficient to meet its duty to make specific findings as to each material fact upon which the rights of the parties depend. Upon remand it is not for this Court to tell the commission what findings to make. Cannady v. Gold Kist, supra. However, 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. Gaines v. Swain & Son, Inc., 33 N.C. App. 575, 235 S.E. 2d 856 (1977). *243 Vacated and remanded. Judges Vaughn and Webb concur.