I concur with the majority opinion, remanding this matter to the Industrial Commission for further findings of fact and conclusions of law on the issue of estoppel. This issue was clearly before the Commission, is specifically mentioned in the Opinion and Award, and was extensively discussed in Commissioner Ballance's dissenting opinion. However, the Commission made no findings of fact or conclusions of law on this issue.
I dissent as to the majority opinion's refusal to discuss the remaining issues brought forward by plaintiff's appeal, and specifically to the remanding of this case to the Commission, allowing it to make findings and conclusions as to "all issues raised by the evidence upon which plaintiff's right to compensation depends."
The estoppel issue is entirely separate and distinct from the issue of whether plaintiff is entitled to receive compensation under the facts of this case. If the Commission erred in not awarding compensation, then this renders the estoppel question moot. If the Commission properly denied compensation, then this limits the scope of the Commission's review upon remand to the question of estoppel.
Plaintiff brings forward four arguments challenging the findings of fact and conclusions of law. "Appellate review of an order and award of the Industrial Commission is limited to a determination of whether the findings of the Commission are supported by the evidence and whether the findings in turn support the legal conclusions of the Commission. This is so even though there is evidence which would support a finding to the contrary." Simon v. Triangle Materials, Inc., 106 N.C.App. 39, 41, 415 S.E.2d 105, 106 (1992) (citation omitted).
The essential facts in this case are not in dispute. Plaintiff suffered a hernia on 16 *884September 1997 in the course and scope of his employment. On 19 September 1997, the hernia was surgically repaired, and plaintiff was released from the hospital the following day. On 21 September 1997, plaintiff was admitted to the hospital with pneumococcal pneumonia. Plaintiff was subsequently found to be totally and permanently disabled as a result of chronic obstructive pulmonary disease. The dispute in this case is over the conflicting opinions of medical experts on two points: (1) whether plaintiff contracted pneumococcal pneumonia while hospitalized for his hernia surgery; and (2) whether the pneumonia resulted in an exacerbation of his prior chronic pulmonary disease.
As to the first point, plaintiff's expert, Dr. Kunstling, based his opinion that the pneumonia was a "complication of the surgery" upon the temporal relationship between his hospitalization and contracting pneumonia, and the type of pneumonia. Defendant's expert, Dr. Pape, rendered an opinion that the pneumonia was unrelated to his hospitalization. This was based upon the temporal relationship between the hospitalization and the type of pneumonia. Dr. Pape testified that when a patient develops pneumonia within 5 days of hospitalization, it was more likely acquired in the community and not the hospital. Since plaintiff developed pneumonia within two days of his hospitalization, it was acquired in the community, prior to his hospitalization.
As to the second point, Dr. Kunstling gave an opinion that plaintiff experienced "an exacerbation of chronic obstructive pulmonary disease by a lower respiratory infection, which occurred subsequent to his surgical hernia repair." Dr. Pape testified that plaintiff's subsequent respiratory problems were not related to his hernia surgery. Defendant's other expert, Dr. Schwartz, testified that the respiratory and pulmonary problems that plaintiff experienced were unrelated to the hernia surgery. He further opined that plaintiff's current condition was not aggravated by the pneumonia.
The Commission made the following finding concerning the testimony of these experts:
21. Though he treated plaintiff prior in time to Dr. Pape and Dr. Schwartz, Dr. Kunstling is not in a better position than these doctors to determine whether plaintiff's hernia surgery is the cause of plaintiff's subsequent pulmonary and respiratory conditions. Dr. Kunstling bases his causation opinion on incorrect facts and on a temporal relation between the hernia surgery and the respiratory problems plaintiff has developed. Dr. Kunstling's opinion is given less weight than that of Dr. Pape and Dr. Schwartz, who both opine that plaintiff's current pulmonary conditions are a result of a combination of his 20-plus year smoking history, his asthma and the community-based pneumonia he acquired prior to his hernia surgery.
The credibility of witnesses and the weight to be given to a witness' testimony are matters for the Industrial Commission to decide. Russell v. Lowes Prod. Distr., 108 N.C.App. 762, 765, 425 S.E.2d 454, 457 (1993). I would hold that there is evidence before the Commission to support each of the challenged findings of fact. It is irrelevant whether there is evidence that would support contrary findings. Simon, 106 N.C.App. at 41, 415 S.E.2d at 106. The opinions of each of the experts were proper and admissible. When faced with conflicting expert opinions, it is for the Commission to resolve these conflicts. Wagoner v. Douglas Battery Mfg. Co., 80 N.C.App. 163, 164, 341 S.E.2d 120, 121 (1986) (citation omitted). The Commission's findings support its conclusions that the plaintiff's disability was not the result of his hernia surgery.
I would affirm the Commission's decision that plaintiff's pulmonary condition was not the result of his hernia surgery and is not compensable, and that the hernia surgery did not materially aggravate or exacerbate his pre-existing pulmonary condition.