The majority's opinion holds, "[g]iven this record, we cannot conclude that the Commission's findings or conclusions were erroneous" and affirms the North Carolina Industrial Commission's ("Commission") award. I respectfully dissent.
I. Background
Volunteers of the Salter Path Fire and Rescue. ("department") were invited to attend a "fun day" at a local amusement park on 30 September 2001. Six volunteers attended the event. Tammy P. Frost ("plaintiff") attended the event and was injured while riding a go-cart.
Plaintiff filed a worker's compensation claim, and on 29 April 2004, the deputy commissioner concluded "[a]lthough the Plaintiff suffered an injury by accident on September 30, 2001, her injury did not arise out of and in the scope of her employment with the defendant-employer" and denied plaintiff's claim for benefits. Plaintiff appealed. The Full Commission reversed the deputy commissioner's decision and awarded plaintiff temporary total disability benefits for her compensable injury.
Plaintiff testified that her attendance at the event was purely voluntary. Plaintiff admitted it was not "frowned upon" if volunteers did not attend. Plaintiff also testified: (1) while she felt responsible to attend the event as captain of the department, her attendance was not mandatory; and (2) the department did not assign her any responsibilities at the event.
The event was paid for by community donations. When asked how volunteer members of the department would benefit from fun day, plaintiff answered, "[t]he only way I could say they could would be to keep morale up."
II. Standard of Review
Our review of a decision of the Commission is limited to two issues:(1) whether any competent evidence in the record supports the Commission's findings of fact, and (2) whether such findings of fact support the Commission's conclusion of law. The Commission's conclusions of law are reviewable. Whether an injury arises out of and in the course of a claimant's employment is a mixed question of fact and law, and our review is thus limited to whether the findings and conclusions are supported by the evidence.
Hunt v. Tender Loving Care Home Care Agency, Inc., 153 N.C.App. 266, 268, 569 S.E.2d 675, 677-78, disc. rev. denied, 356 N.C. 436, 572 S.E.2d 784 (2002) (emphasis *29supplied) (internal quotations and citations omitted).
This Court has also stated,
The Commission is the sole judge of the credibility of witnesses and may accept or reject any of a claimant's evidence. However, the Commission is required to make specific findings as to the facts upon which a compensation claim is based, including the extent of a claimant's disability.
Grant v. Burlington Industries, Inc., 77 N.C.App. 241, 247, 335 S.E.2d 327, 332 (1985) (emphasis supplied).
On appeal to this Court, "[t]he Commission's conclusions of law are reviewed de novo." McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 701 (2004).
III. Conclusion of Law
The Workers' Compensation Act provides, "`[i]njury and personal injury' shall mean only injury by accident arising out of and in the course of the employment." N.C. Gen. Stat. § 97-2(6) (2005).
Our Supreme Court has stated, "the phrase `out of and in the course of the employment' embraces only those accidents which happen to a servant while he is engaged in the discharge of some function or duty which he is authorized to undertake and which is calculated to further, directly or indirectly, the master's business." Sandy v. Stackhouse, Inc., 258 N.C. 194, 198, 128 S.E.2d 218, 221 (1962) (internal quotations and citation omitted).
In Chilton v. Bowman Gray School of Medicine, this Court identified six factors for the Commission and the court to consider when determining whether a plaintiff's injuries arose "out of and in the course of her employment" to be compensable. 45 N.C.App. 13, 15, 262 S.E.2d 347, 348 (1980). The factors include:
(1) Did the employer in fact sponsor the event?
(2) To what extent was attendance really voluntary?
(3) Was there some degree of encouragement to attend evidenced by such factors as:
a. taking a record of attendance;
b. paying for the time spent;
c. requiring the employee to work if he did not attend; or
d. maintaining a known custom of attending?
(4) Did the employer finance the occasion to a substantial extent?
(5) Did the employees regard it as an employment benefit to which they were entitled as of right?
(6) Did the employer benefit from the event, not merely in a vague way through better morale and good will, but through such tangible advantages as having an opportunity to make speeches and awards?
Id. (citation omitted).
In Chilton, the plaintiff was injured while playing volleyball at an annual voluntary picnic for medical school faculty. Id. at 18, 262 S.E.2d at 350. This Court reversed the Commission's order, which granted plaintiff's claim, and held:
First ... sponsorship standing by itself would not indicate coverage.
Second, attendance was voluntary. There was testimony from faculty members that they felt they should go, but that they were not compelled to do so. The estimated attendance of around 80% of the department indicates that there was no compulsion.
Third, no record of attendance was taken. The participants were not paid for the time spent, nor was any employee required to work at the medical school if he did not attend.
Fourth, the picnic, while certainly an annual custom, was not an event that employee regarded as being a benefit to which he was entitled as a matter of right.
Id. at 17, 262 S.E.2d at 350.
Here, in applying the Chilton factors, the Commission concluded, "the evidence in the instant cause establishes affirmative answers to at least four of the six Chilton questions, and arguably, all six." The Commission stated:
(1) Did the employer in fact sponsor the event?
*30Yes. Salter Path organized and sponsored the Fun Day event.
....
(2) To what extent was attendance really voluntary?
....
Despite the voluntary nature of. Salter Path's operations, Plaintiff justifiably believed that her attendance at Fun Day was mandatory.
....
(3) Was there some degree of encouragement to attend?
Even the defendant's own witness, Taffie Baysden, testified that volunteers were encouraged to attend if they could. In addition, Ms. Baysden ultimately testified that there was a record of attendance (which she previously had denied on direct). In fact, she acknowledged that the names of attendees were recorded in Salter Path's login book as well as a separate sign-in sheet at the check-in window at [the park].
(4) Did the employer finance the occasion to a substantial extent?
Yes. Salter Path paid for the event.
(5) Did the employees regard it as an employment benefit to which they were entitled as of right?
Yes. Fun Day was a benefit for the volunteers and their families. If volunteers did not keep their hours up, they could not attend.
(6) Did the employer benefit from the event, not merely in a vague way through better morale and good will, but through such tangible advantages as having an opportunity to make speeches and awards?
Yes ... Plaintiff was going to make a speech to her EMS workers to thank them for their participation and to encourage continued participation from these volunteers within the department.
The Commission's findings of fact do not support this conclusion of law. Hunt at 271, 569 S.E.2d at 679 ("The Commission erred in its application of the findings of fact to its conclusions of law.").
The Commission concluded the department "sponsored the Fun Day event." In finding of fact number two, the Commission found that the event was "essentially an appreciation day, in which the community thanked volunteer firemen and rescue workers for their contribution and work in the community." The community, not the department, paid for and sponsored the event.
Under the second Chilton factor, the Commission concluded plaintiff's attendance at the event was mandatory. The Commission did not find attendance at the event was mandatory. Plaintiff testified attendance at the event was purely voluntary. Also, in finding of fact number three the Commission found, "Fun Day was a voluntary event."
Regarding the third Chilton factor, the Commission concluded that attendance was encouraged, and the department maintained a record of the volunteers who attended. Even if attendance by the volunteers was taken at the event, undisputed evidence reveals names were taken merely to compute costs to pay the amusement park, rather than for any business purpose. The Commission wholly failed to address the remaining factors under this prong. Undisputed evidence shows the volunteers: (1) were not compensated for attending the event; (2) were not required to work if they failed to attend; and (3) there was no longstanding custom of attending the event since this was only the second time the community had sponsored the event.
The Commission's conclusion that the department funded the event is unsupported by the findings of fact. In finding of fact number three, the Commission found the event was "paid for out of a Special Donations Fund, rather than out of the Department's operating budget." The event was paid for with community donations. The community, not the department, funded the event.
In its analysis of the fifth Chilton factor, the Commission held the event was a benefit to employees who maintained certain hours. This conclusion was not supported by any findings of fact or any evidence. The Commission failed to find that only "active" volunteers were permitted to take part in the event.
*31Plaintiff initially testified the active volunteers were entitled as a matter of right to attend the event, but she later recanted her statement and admitted the event was open to every volunteer. Gutierrez v. GDX Automotive, 169 N.C.App. 173, 178, 609 S.E.2d 445, 449, disc. rev. denied, 359 N.C. 851, 619 S.E.2d 408 (2005). ("Without competent evidence, the Commission's conclusions are likewise unsupported and the opinion and award must be reversed.").
The Commission concluded the department benefitted from the event because plaintiff planned to make a speech. Plaintiff testified her intent was simply to make an impromptu comment regarding her appreciation for the volunteers' work. She testified, "I try to thank my EMTs anytime I can." When asked if she had any role at the event, she testified, "no." Plaintiff admitted the only way the department benefitted from the event was "to keep morale up." In finding of fact number two, the Commission found, "[t]he purpose for Fun Day was to boost the morale and goodwill of Salter Path volunteers." In finding of fact number four, the Commission found, "[t]he employer received a tangible benefit from this event in that it helped to improve morale of volunteers." The Commission's findings of fact do not support the notion that the department benefitted in a tangible way from the event; rather, the department benefitted "merely in a vague way through better morale and good will." Chilton, at 18, 262 S.E.2d at 350. Upon de novo review of the Commission's conclusion of law, I find error in no competent evidence supports some of the Commission's findings of fact and in some cases undisputed evidence is to the contrary. These unsupported findings do not support the Commission's conclusions of law. Id. The Commission's opinion and reward should be reversed.
IV. Conclusion
Upon de novo review of the conclusions of law, the Commission misapplied the Chilton factors to this case. The Commission's third conclusion of law was not supported by the findings of fact. Plaintiff's injury, which occurred at a purely voluntary event, did not arise out of her employment as a volunteer for the department. N.C. Gen.Stat. § 97-2(6). I vote to reverse the Commission's order. I respectfully dissent.