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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA12-73 NORTH CAROLINA COURT OF APPEALS Filed: 21 August 2012 CYNTHIA PUTNAM, Employee, Plaintiff, v. SWEEP RITE INC., Alleged Uninsured Employer, and RANDALL S. JAMES and CHARLES HESS, III, Individually; and EXCEL PAYROLL PLUS, INC., Alleged Employer, HARTFORD UNDERWRITERS INSURANCE CO., Carrier, Defendants. North Carolina Industrial Commission I.C. Nos. 893717 & PH-2076

Appeal by defendants Excel Payroll Plus, Inc. and Hartford Underwriters Insurance Co. from opinion and award entered 6

October 2011 by the North Carolina Industrial Commission. in the Court of Appeals 9 May 2012.

Heard

David Gantt, for plaintiff-appellee, Cynthia R. Putnam. Leicht & Associates, by Gene Thomas Leicht, for defendantappellees, Sweep Rite, Inc., Randall S. James, and Charles Hess, III. Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Shelley W. Coleman and M. Duane Jones, for defendant-appellants Excel Payroll Plus, Inc. and Hartford Underwriters Insurance Co.

-2STROUD, Judge. Defendants Excel Payroll Plus, Inc. and Hartford

Underwriters Insurance Co. appeal opinion and award requiring Hartford Underwriters Insurance Co. to pay disability benefits to plaintiff and medical treatment for plaintiff. For the

following reasons, we remand for further findings of fact and conclusions of law consistent with those findings. I. On 6 October 2011, Background the Full Commission of the North

Carolina Industrial Commission ("Commission") issued an opinion and award finding that in 2006 defendant Sweep Rite, Inc.

("Sweep Rite") entered into a contract with Excel Employment Services whereby Excel Employment Services would obtain workers' compensation Excel coverage on behalf of Sweep the Rite's employees. of

Employment

Services

assigned

responsibility

obtaining the workers' compensation coverage to defendant Excel Payroll Plus, Inc. ("Excel"). Excel obtained insurance from

Hartford Underwriters Insurance Co. ("Hartford"). Plaintiff claimed that she sustained a compensable injury on 13 August 2007 while working for Sweep Rite. However, the

Commission found that plaintiff did not begin "training" with Sweep Rite until "late August 2007[.]" found that plaintiff was injured The Commission further "the next night after

-3training." 22, 2007, The Commission concluded that "[o]n or about August Plaintiff sustained a compensable injury by

accident[;]"

plaintiff was employed by defendants Sweep Rite

and Excel "at the time of her injury[;]" and because plaintiff was employed by Excel, Hartford "shall provide workers'

compensation coverage[.]" The Commission ordered defendant Hartford to pay plaintiff disability benefits "effective August 22, 2007 and continuing at the rate of $134.00 per week until Plaintiff has returned to suitable medical employment" treatment for and for her "necessary back and and mental reasonable injuries,

Plaintiff's

including bills already incurred from her injuries so long as such treatment tends to provide relief, effect a cure and lessen Plaintiff's period of disability." Defendants Excel and

Hartford (collectively "defendants") appeal. II. Defendants' Appeal

On review of a decision of the Commission, we are limited to reviewing whether any competent evidence supports the Commission's findings of fact and whether the findings of fact support the Commission's conclusions of law. An appellate court does not have the right to weigh the evidence and decide the issue on the basis of its weight. The court's duty goes no further than to determine whether the record contains any evidence tending to support the finding. The Full Commission is the sole judge of the weight and

-4credibility of the evidence. Moreover, the Commission must make specific findings with respect to crucial facts upon which the question of plaintiff's right to compensation depends. Furthermore, it is impossible to exaggerate how essential the proper exercise of the fact-finding authority of the Industrial Commission is to the due administration of the Workmen's Compensation Act. The findings of fact of the Industrial Commission should tell the full story of the event giving rise to the claim for compensation. They must be sufficiently positive and specific to enable the court on appeal to determine whether they are supported by the evidence and whether the law has been properly applied to them. It is obvious that the court cannot ascertain whether the findings of fact are supported by the evidence unless the Industrial Commission reveals with at least a fair degree of positiveness what facts it finds. It is likewise plain that the court cannot decide whether the conclusions of law and the decision of the Industrial Commission rightly recognize and effectively enforce the rights of the parties upon the matters in controversy if the Industrial Commission fails to make specific findings as to each material fact upon which those rights depend. . . . For an injury to be compensable under the Worker's Compensation Act, the claimant must prove three elements: (1) that the injury was caused by an accident; (2) that the injury was sustained in the course of the employment; and (3) that the injury

-5arose out of the employment; accordingly, findings of fact regarding these elements are crucial facts upon which the question of plaintiff's right to compensation depends. McAdams v. Safety Kleen Systems, Inc., ___ N.C. App. ___, ___, 720 S.E.2d 896, 898-99 (2012) (citations, quotation marks,

ellipses, and brackets omitted). Defendants Commission compensable erred Excel in and Hartford [(1)] and argue that "the Full a an

concluding by accident"

plaintiff (2)

sustained was

injury

"plaintiff

employee of defendant-appellant" Excel. Both of defendants' in arguments to when focus she

(Original in all caps.) on when plaintiff began the

employment

relation

was

injured.

Here,

Commission did not find that plaintiff was either employed or injured on any specific date. specific findings of fact, we Due to the Commission's nonare unable to determine if

defendants' arguments have any merit as they require knowledge of the date of employment in relation to the date of injury; even if the dates are not specifically provided by the

Commission, this Court would, at the very least, need findings of fact asserting that plaintiff was indeed injured after the date of her employment, particularly in a case such as this, where there was wildly conflicting evidence regarding the dates

-6of employment and injury.1 See McAdams at ___, 720 S.E.2d at

898-99; contrast Gregory v. W.A. Brown & Sons, 192 N.C. App. 94, 664 S.E.2d 589 (2008) (determining the plaintiff need not prove a specific date of injury wherein it was uncontested that she was an employee at the time of the injury), rev'd in part on other grounds and remanded, 363 N.C. 750, 688 S.E.2d 431 (2010); Fish v. Steelcase, Inc., 116 N.C. App. 703, 449 S.E.2d 233

(1994) (determining the plaintiff need not prove a specific date of injury wherein it was uncontested that he was an employee at the time of the injury), cert. denied, 339 N.C. 737, 454 S.E.2d 650 (1995). III. Conclusion For the foregoing reasons, we remand for further findings of fact and conclusions of law consistent with those findings. REMANDED. Judge HUNTER, Robert C.concurs. Judge ERVIN dissents in a separate opinion. Report per Rule 30(e).

1

As we have concluded that we must remand this case we need not address defendants' second argument on appeal. We do however note that were we to consider this issue, we agree with the dissent in concluding "that Defendant Excel was liable to Plaintiff for workers' compensation benefits and that Defendant Hartford must pay those benefits."

-7NO. COA12-73 NORTH CAROLINA COURT OF APPEALS Filed: CYNTHIA PUTNAM, Employee, Plaintiff, v. SWEEP RITE, INC., Alleged Uninsured Employer, and RANDALL S. JAMES and CHARLES HESS, III, Individually; and EXCEL PAYROLL PLUS, INC., Alleged Employer, HARTFORD UNDERWRITERS INSURANCE CO., Carrier, Defendants. North Carolina Industrial Commission I.C. Nos. 893717 & PH-2076 21 August 2012

ERVIN, Judge dissenting. After a careful review of the record in light of the

applicable law, I am unable to agree with my colleagues that the Commission erred by failing to "find that plaintiff was either employed or injured on any specific date" or determine "that plaintiff was indeed injured after the date of her employment" given the "wildly conflicting evidence regarding the dates of employment and injury." As a result, given my conclusion that

the Commission's findings of fact adequately address the issue about which my colleagues are concerned, that the record

evidence supports the Commission's determination that Plaintiff

-8was injured during the course and scope of her employment with Defendant Sweep Rite, and my conclusion that the Commission did not err by holding that Plaintiff was entitled to workers'

compensation benefits under the coverage procured by Defendant Excel, I would affirm the Commission's order. I. Adequacy of the Commission's Compensability Determination Appellate review of a Commission order in a workers'

compensation proceeding is "limited to [determining] whether any competent evidence supports the Commission's findings of fact and whether the findings of fact support the Commission's

conclusions of law[,]" with the Commission serving as the sole judge of the weight and credibility of the evidence. Deese v.

Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). most "[I]f the totality of the evidence, viewed in the light to the complainant, tends directly or by

favorable

reasonable inference to support the Commission's findings, these findings are conclusive on appeal even though there may be

plenary evidence to support findings to the contrary."

Click v.

Freight Carriers, 300 N.C. 164, 166, 265 S.E.2d 389, 390-91 (1980) law, (citations the omitted). hand, 358 are The Commission's de 597 conclusions McRae 695, of v. 701

on

other Inc.,

reviewed 496,

novo. S.E.2d

Toastmaster, (2004).

N.C.

488,

After examining the Commission's order utilizing this

-9standard of review, I conclude that the Commission adequately determined that Plaintiff sustained a compensable injury to her back at a time when she was employed by Defendant Sweep Rite. According to well-established North Carolina law, "`[t]he Commission must make specific findings with respect to crucial facts upon which the question of plaintiff's right to

compensation depends.'" __ N.C. App. __, __,

McAdams v. Safety Kleen Systems, Inc., 720 S.E.2d 896, 898 (2012) (emphasis

omitted) (quoting Sheehan v. Perry M. Alexander Constr. Co., 150 N.C. App. 506, 510

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