dissenting.
In this appeal, plaintiff contends that the Commission erred by requiring him to prove causation to a “reasonable degree of medical certainty,” rather than the applicable preponderance of the evidence standard. I agree with the plaintiff’s contention and therefore, dissent from the contrary holding of the majority.
In denying the plaintiff’s claim, the Deputy Commissioner made and the full Commission adopted the following pertinent findings of fact and conclusions of law:
4. In obtaining water or ice from those coolers, these same employees would occasionally stick their hands or cups or even handkerchiefs down in the coolers themselves. As a result of these practices, the coolers did provide a possible source point for the salmonella infection giving rise to the instant claim.
8. There is no sufficient convincing medical evidence to any reasonable degree of medical certainty that plaintiff developed his salmonella infection from drinking contaminated water at work as opposed to the same being from eating uncooked chicken or *544some other contaminated food or water source (emphasis supplied). . . . Thus, plaintiff has failed in his burden of establishing that he developed a salmonella infection from drinking contaminated water at work.
9. Plaintiff further contends that as a result of his salmonella infection he developed the chronic fatigue syndrome that continues to totally incapacitate him .... The exact cause of the same disease remains unknown as does its manner of transmission.
Even assuming arguendo that plaintiff developed the involved salmonella infection from drinking contaminated water at work under the circumstances alleged; there is no convincing medical evidence to any reasonable degree of medical certainty that his salmonella infection triggered or otherwise caused him to develop disabling chronic fatigue syndrome, whose exact cause and manner of transmission has not yet been scientifically established (emphasis supplied). The point is moot, however, in the case at hand due to the initial lack of causation for the salmonella infection.
The above emphasized findings are more aptly characterized as conclusions of law. This Court is not bound by a conclusion of law by the Commission simply because it is labeled a finding of fact. Rather, if a conclusion of law, or a mixed finding of fact and law is erroneously labeled a finding of fact, that finding is not binding upon this Court. Cody v. Snider Lumber Co., 96 N.C. App. 293, 295, 385 S.E.2d 515, 517 (1989), rev’d on other grounds, 328 N.C. 67, 399 S.E.2d 104 (1991). Thus, this Court may examine on appeal a legal standard" which is applied by the Commission to determine whether it was applied correctly, even though the legal standard is included in the section of the Commission’s order labeled Findings of Fact. When the Commission applies an incorrect standard of law, the award must be set aside and the case remanded for a new determination using the correct legal standard. Ballenger v. ITT Grinnell Industrial Piping, Inc., 320 N.C. 155, 357 S.E.2d 683, (1987); Cauble v. Macke Co., 78 N.C. App. 793, 338 S.E.2d 320 (1986).
The Commission’s finding of fact number 8 states: “There is no sufficient convincing medical evidence to any reasonable degree of medical certainty that plaintiff developed his salmonella infection from drinking contaminated water at work.” (emphasis supplied). Finding of fact number 9 states: “[T]here is no convincing medical evidence to any reasonable degree of medical certainty that his sal*545monella infection triggered or otherwise caused him to develop disabling chronic fatigue syndrome.” (emphasis supplied). These statements indicate that the Commission held the plaintiff to a standard of medical certainty for determining causation rather than the correct standard, which is a preponderance of the evidence. This was error. Ballenger, 320 N.C. at 158-159, 357 S.E.2d at 685. (The full Commission must make a complete redetermination as to whether the plaintiff has shown by a preponderance of the evidence that there was a causal link between the workplace accident and the disability/disease for which the plaintiff seeks compensation).
I find language from Keel v. H & V Inc., 107 N.C. App. 536, 421 S.E.2d 362 (1992) instructive:
Circumstantial evidence of the causal connection between the occupation and the disease is sufficient. . . . Medical opinions given may be based either on personal knowledge or observation or on information supplied [to the expert] by others, including the patient.... (citations omitted). Absolute medical certainty is not required.
Id. at 540, 421 S.E.2d at 366. Thus, causation need not be proven to a medical certainty in order for a plaintiff to recover in a workers’ compensation case. Instead, the determination by the Commission is a preponderance of the evidence, i.e., whether it is more likely than not that the plaintiff did in fact contract the disease at work.
Accordingly, I would remand to the Commission for a determination as to whether plaintiff has met his burden of proving, by a preponderance of the evidence, a causal link between the water coolers and his contraction of salmonella, and if so whether plaintiff has met his burden of proving, by a preponderance of the evidence, a causal link between the salmonella infection and plaintiff’s current chronic fatigue syndrome.