Wallace v. Watkins-Carolina Express, Inc.

GRAHAM, Judge.

Plaintiff’s evidence was sufficient to support a finding that he suffered a compensable injury. Even so, the Commission was not bound to accept plaintiff’s evidence as true or to infer from it that plaintiff had suffered a compensable injury; for the Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Anderson v. Construction Co., 265 N.C. 431, 144 S.E. 2d 272. The Commission is not required to accept even the uncontroverted testimony of a witness. Anderson v. Motor Co., 233 N.C. 372, 64 S.E. 2d 265; Morgan v. Furniture Industries, Inc., 2 N.C. App. 126, 162 S.E. 2d 619.

However, where affirmative findings of fact upon which the Commission bases a decision are unsupported by any competent evidence, such findings must be set aside. 5 Strong, N.C. Index 2d, Master and Servant, § 96, pp. 488, 489. Plaintiff assigns1 as error two findings made by the Commission which are unsupported by any competent evidence.

The Commission found “ [p] laintiff had been involved in a vehicle accident on April 27, 1967, for which he received treat*559ment by Dr. William B. Jones of Greenville, South Carolina for injuries to his right leg, left long finger and skull.” This finding was obviously based upon a report of Dr. Jones, forwarded to the Commission by defendant’s attorney. The report was apparently considered by the Commission after plaintiff’s attorney agreed in writing that reports of certain doctors could be admitted with the “question of relevancy” being left to the Commission. It does not appear in the record that plaintiff had been treated by Dr. Jones; nor does it appear why the testimony of Dr. Jones was considered relevant by defendant. At any rate, Dr. Jones’ report has as its subject one Ray Wallace of Greenville, South Carolina. Defendant does not dispute the fact that Ray Wallace, age 36 of Greenville, South Carolina, is not the plaintiff, Jay Lee Wallace, who is considerably older and from North Carolina. The report, which shows on its face that it concerns a subject other than plaintiff, was not relevant and therefore it was incompetent to support the Commission’s finding with respect to injuries suffered by plaintiff in an unrelated accident.

The second finding attacked by plaintiff is that “Plaintiff continued to haul for Watkins-Carolina, using his own tractor, beginning May 30, 1967 and continuing for about six weeks.” The only evidence concerning when plaintiff returned to driving his truck was his testimony that “[o]ne week after the accident [of 29 May 1967] was when I went back on the truck for the first time.” Hence, a positive finding to the effect plaintiff returned to work the day following his accident is unsupported by the evidence.

Defendant argues that although these findings are erroneous, they are not crucial to the Commission’s decision and should therefore be disregarded. The difficulty with this approach is that we are unable to say to what extent, if any, these findings influenced the Commission’s final conclusion that any injuries sustained by the plaintiff were minor, requiring no medical treatment and causing no disability.

We further note that the Commission found that Dr. Weaver was of the opinion plaintiff had sustained a sprain of his neck and lumbosacral spine and had him hospitalized from 25 July 1967 to 4 August 1967; also, that Dr. Carr had plaintiff hospitalized from 26 October 1967 to 17 November 1967 for conservative treatment of his sprained back. A crucial question *560is whether these sprains resulted from the accident in question. If they did, the Commission’s decision is legally unsound. In any event, a finding with respect to this determinative question has not been made. While it is not necessary that the Commission make a finding as to each fact presented by the evidence, Guest v. Iron & Metal Co., 241 N.C. 448, 85 S.E. 2d 596, specific findings must be made with respect to the crucial facts, upon which the question of plaintiff’s right to compensation depends. Pardue v. Tire Co., 260 N.C. 413, 132 S.E. 2d 747; Thomason v. Cab Co., 235 N.C. 602, 70 S.E. 2d 706; Morgan v. Furniture Industries, Inc., supra.

For the reasons given the case is remanded and the Industrial Commission is directed to make new findings of fact, based on the competent evidence in the record and determinative of all questions at issue.

Error and remanded.

Judges Campbell and Britt concur.