GREGORY JORDAN,
Employee, Plaintiff,
v
.
North Carolina
Industrial Commission
OAKWOOD HOMES, Employer, I.C. No. 202577
and ESIS INSURANCE COMPANY, Carrier,
Defendants.
Hodgman and Oxner, by Todd P. Oxner, for plaintiff-appellee.
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Terry L.
Wallace for defendant-appellants.
THORNBURG, Judge.
Defendants appeal from an opinion and award of the Industrial
Commission in a workers' compensation matter. At the time of the
hearing before the Deputy Commissioner, plaintiff was 37 years old
and worked for defendant, Oakwood Homes, as a loss mitigation
specialist. Plaintiff's job consisted of collecting on delinquent
accounts by contacting customers by phone or through
correspondence. Oakwood Homes is a publicly held corporation with
its headquarters in Greensboro, North Carolina.
In September of 2001, the head of Oakwood Homes's loss
recovery department approached plaintiff and other employees aboutworking in a haunted house as part of the “Scare to Care”
fundraising campaign to benefit the United Way's fund for victims
of the 11 September 2001, terrorist attacks in New York City.
Plaintiff agreed to volunteer.
On 27 October 2001, plaintiff participated in the haunted
house, which was held in the parking lot at Oakwood Homes's
headquarters. Plaintiff was dressed as a horror movie character,
“Michael Meyers.” When spectators entered his portion of the
haunted house, plaintiff would sit up, “kill” a co-worker by
pretending to stab her and then lunge toward the crowd. During one
of these routines, the folding table on which plaintiff was lying
collapsed and he fell from the table, injuring his back.
In an interlocutory opinion, the Deputy Commissioner found, in
part:
3. Beginning in September of 2001, the head
of the loss recovery department approached
some of the employees in plaintiff's section
about working in a haunted house as part of
the “Scare to Care” fundraising campaign to
benefit the United Way for victims of the
September 11, 2001 terrorist attacks. Mike
Rutherford, Vice-President of the defendant-
employer, came up with the campaign slogan and
ideas for the haunted house. Plaintiff agreed
to volunteer for the event.
4. The haunted house was sponsored during the
week of October 25, 2001 through October 31,
2001. The event was publicized through the
issuance of a press release which was released
on Defendant's website and released to
approximately four (4) area newspapers.
5. Defendant used four (4) more or less
dilapidated trailers that Oakwood Homes had
built and later repossessed. Monies from
local donations were used to gut and refurbish
the mobile homes which were then decorated as“haunted houses” for the fundraiser. For the
event, the “haunted houses” were positioned in
the back parking lot of the Oakwood Homes
corporate offices location.
6. Approximately 111 employees participated
in “Scare to Care,” along with approximately
eleven (11) others who were family members of
the employees. Even though the employee
participants were not paid for their time, and
they were not formally reprimanded for not
participating, employees were strongly
encouraged to participate. Flyers were
distributed to employees to encourage their
participation, and employees were also asked
to distribute advertising flyers at local
businesses they patronize. In memoranda
concerning the campaign that was distributed
to employees, those employees who were
scheduled to participate were described as
“hard-working.”
. . . .
9. To plaintiff's knowledge, no direct sales
pitches were made on behalf of the defendant.
However, by its own admission, defendant
planned the “Scare to Care” event not only to
raise donations for the United Way, but also
to foster employee morale, encourage good
health, and to create a good working
environment for Oakwood Homes employees. The
defendant therefore received a direct benefit
from its employees' participation in this
event, including the participation of the
plaintiff.
10. The greater weight of the competent,
credible evidence produced at the hearing
establishes, and the undersigned hereby finds
that on October 27, 2001, plaintiff sustained
a compensable injury by accident arising out
of and in the course of his employment with
the defendant-employer, resulting in injury to
his back.
The Deputy Commissioner then concluded that plaintiff had sustained
a compensable injury by accident arising out of and in the course
of his employment. In a final opinion and award, the DeputyCommissioner adopted her previous findings, made further findings
concerning plaintiff's medical treatment and defendant's actions
regarding that treatment and the workers' compensation claim. The
Deputy Commissioner then awarded plaintiff temporary partial
disability benefits and attorneys fees and fined defendant for
violations of N.C. Gen. Stat. § 97-88.2 and Commission rules.
Defendants appealed to the full Commission. The appeal
questioned whether certain findings of fact in the interlocutory
order and the final opinion and award were supported by competent
evidence, thus resulting in incorrect conclusions of law.
Defendants specifically took exception to the conclusion that
plaintiff's injury by accident arose out of and in the course of
his employment.
The full Commission affirmed the Deputy Commissioner's opinion
and award with minor modifications. However, the modifications
addressed plaintiff's medical treatment and Oakwood Homes's conduct
in handling plaintiff's claim. The full Commission made no
independent findings regarding the circumstances surrounding
plaintiff's accident, finding instead: “The Findings of Fact made
in the Interlocutory Opinion and Award of the Deputy Commissioner
Stanback that was filed on September 12, 2002, are adopted and
incorporated herein by reference.” The full Commission went on to
conclude: “The Conclusions of Law contained in the Interlocutory
Opinion and Award by Deputy Commissioner Stanback filed on
September 24[sic], 2002, are adopted and incorporated herein by
reference.” The Industrial Commission is not an appellate court. Joyner
v. Rocky Mount Mills, 92 N.C. App. 478, 482, 374 S.E.2d 610, 613
(1988). “It is a quasi-judicial agency with statutory authority to
make findings of fact, state conclusions of law and enter an order
resolving the issues between the employee and the employer and the
employer's insurance carrier, if any, arising out of the
application of the Worker's Compensation Act.” Vieregge v. N.C.
State University, 105 N.C. App. 633, 639-40, 414 S.E.2d 771, 775
(1992). “This Court has held that when the matter is 'appealed' to
the full Commission pursuant to G.S. § 97-85, it is the duty and
responsibility of the full Commission to decide all of the matters
in controversy between the parties.” Id. at 638, 414 S.E.2d at
774. Defendants, having filed a Form 44, “[are] entitled to have
the full Commission respond to the questions directly raised by
[their] appeal.” Id. at 639, 414 S.E.2d at 774. By affirming and
incorporating the Deputy Commissioner's findings and conclusions
regarding whether plaintiff's injury by accident arose out of and
in the course of his employment, the Commission failed to address
the issue and thus failed to satisfy the Commission's statutory
duty under N.C. Gen. Stat. § 97-85.
The Commission erred in not addressing the issue of whether
plaintiff's injury by accident arose out of and in the course of
his employment. Upon remand, the Commission shall make its own
findings of fact and conclusions of law and enter an order
resolving this issue.
Vacated and remanded. Judges WYNN and HUNTER concur.
Report per Rule 30(e).
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