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Cloutier v. North Carolina

Filed: May 18, 1982.


Appeal by plaintiff from order of North Carolina Industrial Commission entered 7 November 1980. Heard in the Court of Appeals 10 December 1981.

Webb, Judge. Judges Vaughn and Hill concur.


At the outset we note that the plaintiff has not made any argument that there was error in the Industrial Commission's finding of fact or award as to the disfigurement to the plaintiff's head. We affirm this portion of the opinion and award.

As to the other features of this case, we hold the Industrial Commission failed to make sufficient findings of fact for us to determine whether the rights of the parties were properly determined. See Thomason v. Cab Co., 235 N.C. 602, 70 S.E.2d 706 (1952) and Morgan v. Furniture Industries, Inc., 2 N.C. App. 126, 162 S.E.2d 619 (1968). The appellant contends she sustained permanent injury to important internal organs including her ethmoid and maxillary sinuses; her inner ear which causes permanent disequilibrium; and her sense of taste and smell. She argues that she should be compensated for these injuries under G.S. 97-31(24). She also argues that as a result of all her injuries, she has a permanent partial incapacity for work for which she should be compensated under G.S. 97-30.

It may be that on different evidence, findings of fact as were made in the instant case would be sufficient, but in this case we cannot so hold. In this case there was substantial uncontradicted evidence that the plaintiff had received permanent damage to her ethmoid and maxillary sinuses. The only finding of fact that related specifically to this injury was a finding that her sinuses were fractured. There was evidence that plaintiff suffered damage to her inner ear which caused dizziness which had lasted to the time of the hearing. The Commission's finding of fact on this evidence was that the plaintiff suffered a concussion of the inner ear which causes dizziness. There was also evidence that plaintiff has suffered a permanent loss of her taste and smell. The Commission's finding of fact on this evidence is that the "Plaintiff also experiences a loss of her sense of taste and smell." Under its findings of fact the Commission found that the plaintiff had "not suffered the loss of or permanent injury to an important external

or internal organ." On the evidence in this case and the findings of fact, we do not know whether the Commission reached this result because it did not consider there was permanent injury to the sinuses, inner ear, or the plaintiff's sense of taste and smell or whether the Commission did not consider any of these important internal organs. We believe there should be more complete findings of fact on the evidence as to these features of the case.

As to the plaintiff's contention that she has suffered permanent partial disability, the Commission found that "there is no competent evidence of record in this case at this time to show permanent partial disability based on condition of plaintiff's inner ear." The plaintiff contends that her permanent partial disability is based not only on the problems with her inner ear but also on her other permanent injuries including sinusitis; severe headaches; inability to wear prescription glasses; heavy sinus drainage causing pain in the throat and nausea; facial pains; and lack of hand-eye coordination. The evidence is that plaintiff has to take medication for these symptoms and combined with the pain and suffering and the effects of the medicine, she has a reduced capacity for work. We believe there should be findings of fact on this evidence in order that we may determine whether the Commission has properly awarded or denied compensation for permanent partial disability under G.S. 97-30.

The defendant contends there should be no award for the damage to the sinuses. It says this is so because they are not important internal organs. The defendant bases this contention on the testimony of Dr. Ralph that their only known function is to lighten the weight of the facial bones. Dr. Ralph also testified that these were important internal parts of the body. He testified further that there were nerves that run through the ethmoid sinus which were damaged as a result of the trauma causing persistent pain in her teeth. He testified further that some of the mucous production which causes excess drainage was due to the trauma to her ethmoid sinus. We believe that this testimony as to the consequences of damage to the sinuses demonstrates they are important internal organs.

We believe the loss of sense of taste and smell is compensable as the loss of an important internal organ. See Arrington v. Engineering Corp., 264 N.C. 38, 140 S.E.2d 759 (1965). The Commission

should make findings of fact on the evidence as to this feature of the case.

The defendant contends it was not error for the Commission not to find permanent damage to the plaintiff's inner ear because the record does not show that she had suffered permanent damage. The evidence is equivocal on this point. Dr. Ralph testified it is very likely a permanent condition but that he would defer to Dr. Sabiston's opinion. Dr. Sabiston stated in his letter that he did not think it would be permanent. In the affidavit from Dr. Sabiston which the plaintiff asked to be considered by the Full Commission, he stated that the condition had not cleared up some three years after the assault and he could not say the ...

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