Forgay v. N. C. State University

161 S.E.2d 602 (1968) 1 N.C. App. 320

Juan FORGAY, Employee
v.
NORTH CAROLINA STATE UNIVERSITY, Employer, Self-Insurer and Town of Madison, Employer; Hartford Accident and Indemnity Company, Carrier.

No. 68IC96.

Court of Appeals of North Carolina.

June 12, 1968.

T. W. Bruton, Atty. Gen., by Christine Y. Denson, Staff Atty., attorneys for defendant appellant, North Carolina State University.

Adams, Kleemeier, Hagan & Hannah, by Robert G. Baynes, Greensboro, attorneys for defendant appellee, Hartford Accident and Indemnity Company, Compensation Carrier for the Town of Madison.

BROCK, Judge.

Neither the North Carolina State University nor the compensation carrier for the Town of Madison dispute the fact that Juan Forgay is entitled to an award by the Industrial Commission. The controversy centers upon the question of who should bear the cost of the award. The Town of Madison contends that Forgay was an employee of both it and the University, and that the award should be prorated as was done by the Industrial Commission. The University contends that Forgay was not an employee of the University.

On appeal from the Industrial Commission, review is limited to questions of law. These questions of law include whether the record contains any competent evidence to support the findings of fact by the Commission, and whether the facts found are sufficient to support the conclusions of law. Moore v. Adams Electric Co., 259 N.C. 735, 131 S.E.2d 356. It is well settled that if there is any competent evidence upon which the Commission can base its findings they must be upheld. But it is equally correct that the Commission's findings must be supported by some competent evidence. Petree v. Duke Power Co., 268 N.C. 419, 150 S.E.2d 749. And where there is no competent evidence to support a finding of fact by the Commission, the finding of fact must be stricken. McRae v. Wall, 260 N.C. 576, 133 S.E.2d 220.

The University assigns as error:

1.(a) The portion of Finding of Fact #5 which reads: "Plaintiff was assigned by the N. C. State University to work for the Town of Madison as Administrative Assistant."

In the transcript of the evidence before the Industrial Commission we find the following testimony by Juan Forgay given under cross-examination.

Q. "Were you contacted then about the employment at the University about the employment?

A. "I did. It was all through my counselor. Except the very last, I received from the University, I had been accepted and to go to work the day I started.

Q. "Did they tell you who you were to work for?

A. "Yes, for Mr. Little.

Q. "From the University you got this communication?

A. "I believe so. I'm not sure, a little over a year ago. It was from Raleigh.

Q. "Did the University ever tell you what job you were to do for the Town?

A. "They just said I was an administrative aide.

Q. "You do recall, refresh your recollection, receiving a letter from State—North Carolina State University telling you when to start work?

A. "Yes.

Q. "And letters also told you for whom?

A. "Yes."

All of the other evidence in the record is to the effect that PACE, through its local coordinator in Rockingham County, arranged for Forgay's work with the Town of Madison. And also that Mr. Benjamine H. Cromer, the local PACE coordinator, notified Forgay by letter dated June 2, 1966, of his employment, as well as when and to whom he should report for work. Other than Forgay's indefinite statements, there is no evidence that the University even knew of Forgay's employment until after his injury.

Nevertheless, taking Forgay's quoted testimony at full value, it would at best support a finding that the University notified him that he had been given a job by the Town of Madison, and notified him when and to whom he should report for work. We hold that the evidence does not support a finding that he was assigned to work by the University. The University appellant's assignment of error 1.(a) is sustained.

The University assigns as error:

1.(b) The portion of Finding of Fact #7 which reads:

"N. C. State University made application for funds from PACE."

All of the evidence in the transcript before the Industrial Commission discloses that PACE does not handle funds for the employment of students under the program. All of the evidence discloses that participating colleges make their request for funds to the United States Department of Health, Education, and Welfare, and that the funds are allotted by that U. S. Department to the participating college. All of the evidence discloses that PACE administration in North Carolina is provided by the North Carolina State Board of Public Welfare, Division of Community Services. There is no evidence in the transcript that the University made application to PACE for funds. The University appellant's assignment of error 1.(b) is sustained.

The University assigns as error:

1.(c) The portion of Finding of Fact #8 which reads:

"North Carolina State University paying ninety per cent."

All of the evidence in the transcript before the Industrial Commission discloses that the University disbursed to Forgay 100% of his salary. It further discloses that 90% was disbursed by the University from funds allotted by the U. S. Department of Health, Education and Welfare, and that 10% was disbursed by the University from funds deposited with it by the Town of Madison. The University appellant's assignment of error 1.(c) is sustained.

The University assigns as error:

1.(d) The portion of Finding of Fact #9 which reads:

"N. C. State University paid the plaintiff his wages and paid withholdings for Social Security and income tax. N. C. State University had the right to discharge the plaintiff or assign him to another position, and had the right of control."

All of the evidence tends to show that the University did in fact pay Forgay his wages. According to Webster's Third New International Dictionary (1968) to pay, means "to satisfy (someone) for services rendered * * *" This is obviously the sense in which the Commission used the word "paid" in its finding of fact. Also, the University withheld income tax and the employee's contribution to Social Security taxes from Forgay's wages, and remitted them to the appropriate Revenue Departments; the employer's share of Social Security taxes on Forgay's wages was deposited with the University by the Town of Madison in addition to the 10% of wages. However, a finding that Forgay was paid by the University is far from finding, under these circumstances, that he was an employee of the University.

The finding that the University had the right of control is contrary to all of the evidence in the transcript before the Commission. All of the evidence tends to show that the agents of the Town of Madison prescribed Forgay's hours of work, his duties, and manner of performing his duties.

There is evidence to support a finding that the University could cause Forgay's employment to be terminated if it found he became no longer qualified for the program, i. e.: dropped out of college, did not maintain satisfactory grades, or other reasons not to be qualified to participate in the program. This is merely the reverse of the University certifying to PACE that he was eligible in the first place. There is no evidence in the transcript before the Commission to support a finding that the University had the right to discharge Forgay, or that it had the right to assign him to another position. Insofar as the University appellant's assignment of error 1. (d) is addressed to the portion of Finding of Fact #9 which reads: "N. C. State University had the right to discharge the plaintiff or assign him to another position, and had the right of control," the assignment of error is sustained.

Having determined that the foregoing Findings of Fact are not supported by competent evidence, it follows that they must be stricken. Without those findings of fact, the conclusion of law by the Commission that "[p]laintiff was on June 15, 1966, an employee of the North Carolina State University * * *," and the award of 90% of compensation which is based thereon, can find no support, and both must be set aside.

The award of compensation to Juan Forgay, based upon the finding and conclusion that he was an employee of the Town of Madison is unaffected by this decision.

This cause is remanded to the North Carolina Industrial Commission for further proceedings not inconsistent herewith.

Modified and remanded.

MALLARD, C. J., and PARKER, J., concur.