{
  "id": 9185540,
  "name": "MICHAEL JOHNSON, Employee-plaintiff v. HERBIE'S PLACE, Employer, Uninsured, Defendant, NORTH CAROLINA INDUSTRIAL COMMISSION, Agency of the State of North Carolina, Plaintiff v. HERBIE'S PLACE, L.L.C., and BILL KENNEDY, Individually, Defendants",
  "name_abbreviation": "Johnson v. Herbie's Place",
  "decision_date": "2003-04-15",
  "docket_number": "No. COA02-298",
  "first_page": "168",
  "last_page": "182",
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    "name": "North Carolina Court of Appeals"
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      "cite": "545 S.E.2d 428",
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          "parenthetical": "\"where the employer fails to secure the payment of compensation . . . such employer shall be liable during continuance of such refusal or neglect\""
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      "cite": "531 S.E.2d 881",
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      "cite": "138 N.C. App. 703",
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      "cite": "353 N.C. 263",
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      "cite": "139 N.C. App. 561",
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      "cite": "357 S.E.2d 439",
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      "year": 1987,
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    {
      "cite": "86 N.C. App. 299",
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          "page": "484",
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          "page": "591",
          "parenthetical": "\"each contested finding of fact must be separately assigned as error, and the failure to do so results in a waiver of the right to challenge the sufficiency of the evidence to support the finding\""
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      "year": 2002,
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        {
          "page": "239",
          "parenthetical": "where defendant \"failed to set out [relevant] argument as an assignment of error in the record on appeal\" this Court holds that \"defendant has failed to properly preserve this question for appellate review\""
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    {
      "cite": "151 N.C. App. 197",
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          "page": "204",
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      "cite": "266 S.E.2d 696",
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      "year": 1980,
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      "cite": "47 N.C. App. 196",
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      "cite": "244 S.E.2d 654",
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        {
          "page": "662"
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    {
      "cite": "295 N.C. 189",
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          "page": "203"
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      "cite": "532 S.E.2d 192",
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          "page": "197",
          "parenthetical": "\"[o]rdinarily, the word 'must' and the word 'shall,' in a statute, are deemed to indicate a legislative intent to make the provision of the statute mandatory\""
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    {
      "cite": "138 N.C. App. 572",
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      "cite": "559 S.E.2d 567",
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        {
          "page": "572",
          "parenthetical": "\"G.S. \u00a7 97-18(g) [is] mandatory\" where statute states penalty \"shall be added\" in certain situations"
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    {
      "cite": "148 N.C. App. 381",
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      "cite": "519 S.E.2d 777",
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          "page": "782",
          "parenthetical": "\"if the evidence before the Commission is capable of supporting two contrary findings, the determination of the Commission is conclusive on appeal\""
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    {
      "cite": "135 N.C. App. 296",
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      "cite": "545 S.E.2d 424",
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      "year": 2000,
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    {
      "cite": "352 N.C. 674",
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      "cite": "508 S.E.2d 831",
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      "pin_cites": [
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          "page": "834"
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    {
      "cite": "131 N.C. App. 649",
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      "year": 2002,
      "pin_cites": [
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          "page": "51",
          "parenthetical": "citing Bailey v. Sears Roebuck & Co., 131 N.C. App. 649, 653, 508 S.E.2d 831, 834 (1998)"
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      ],
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    {
      "cite": "153 N.C. App. 782",
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      "reporter": "N.C. App.",
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      "year": 2002,
      "pin_cites": [
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          "page": "786",
          "parenthetical": "citing Bailey v. Sears Roebuck & Co., 131 N.C. App. 649, 653, 508 S.E.2d 831, 834 (1998)"
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      "cite": "141 S.E.2d 632",
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      "year": 1965,
      "pin_cites": [
        {
          "page": "633"
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      "opinion_index": 0
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    {
      "cite": "264 N.C. 401",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8573590
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      "year": 1965,
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    {
      "cite": "349 S.E.2d 861",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1986,
      "opinion_index": 0
    },
    {
      "cite": "318 N.C. 507",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        4736704,
        4734882,
        4738767,
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    {
      "cite": "347 S.E.2d 832",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1986,
      "pin_cites": [
        {
          "page": "840"
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      "opinion_index": 0
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    {
      "cite": "82 N.C. App. 453",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8359199
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      "year": 1986,
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      "cite": "144 S.E.2d 272",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1965,
      "pin_cites": [
        {
          "page": "274",
          "parenthetical": "citations omitted"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "265 N.C. 431",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8575582
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      "year": 1965,
      "pin_cites": [
        {
          "page": "433-34",
          "parenthetical": "citations omitted"
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    {
      "cite": "69 S.E. 63",
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      "reporter": "S.E.",
      "year": 1910,
      "pin_cites": [
        {
          "page": "64"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "153 N.C. 160",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11271782
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      "year": 1910,
      "pin_cites": [
        {
          "page": "162-63"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
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    {
      "cite": "118 S.E.2d 611",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1961,
      "pin_cites": [
        {
          "page": "614",
          "parenthetical": "citing Horne, 215 N.C. 622, 3 S.E.2d 1, and McCoy, 199 N.C. 602, 155 S.E. 452"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "254 N.C. 240",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8625652
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      "year": 1961,
      "pin_cites": [
        {
          "page": "244",
          "parenthetical": "citing Horne, 215 N.C. 622, 3 S.E.2d 1, and McCoy, 199 N.C. 602, 155 S.E. 452"
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    {
      "cite": "5 S.E.2d 165",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "216 N.C. 391",
      "category": "reporters:state",
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        8602352
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      "opinion_index": 0,
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    {
      "cite": "167 S.E.2d 549",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1969,
      "pin_cites": [
        {
          "page": "556-57",
          "parenthetical": "citing Cody v. Hovey, 216 N.C. 391, 5 S.E.2d 165, and Horne v. Edwards, 215 N.C. 622, 3 S.E.2d 1"
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      ],
      "opinion_index": 0
    },
    {
      "cite": "4 N.C. App. 534",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8554841
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      "year": 1969,
      "pin_cites": [
        {
          "page": "545",
          "parenthetical": "citing Cody v. Hovey, 216 N.C. 391, 5 S.E.2d 165, and Horne v. Edwards, 215 N.C. 622, 3 S.E.2d 1"
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    {
      "cite": "155 S.E. 452",
      "category": "reporters:state_regional",
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      "weight": 2,
      "year": 1930,
      "pin_cites": [
        {
          "page": "454",
          "parenthetical": "\"perjury and false swearing\" considered an \"intrinsic fraud\""
        }
      ],
      "opinion_index": 0
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    {
      "cite": "199 N.C. 602",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8610778
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      "pin_cites": [
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          "page": "605",
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    {
      "cite": "3 S.E.2d 1",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 3,
      "year": 1939,
      "pin_cites": [
        {
          "page": "3",
          "parenthetical": "discussing \"[i]ntrinsic fraud, as for example, perjury, or the use of false or manufactured evidence\""
        }
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    {
      "cite": "215 N.C. 622",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8631096
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      "weight": 3,
      "year": 1939,
      "pin_cites": [
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          "page": "625",
          "parenthetical": "discussing \"[i]ntrinsic fraud, as for example, perjury, or the use of false or manufactured evidence\""
        }
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    },
    {
      "cite": "152 S.E.2d 214",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1967,
      "opinion_index": 0
    },
    {
      "cite": "269 N.C. 200",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8562504
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      "year": 1967,
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    {
      "cite": "572 S.E.2d 784",
      "category": "reporters:state_regional",
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      "year": 2002,
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    {
      "cite": "356 N.C. 437",
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      "reporter": "N.C.",
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      "MICHAEL JOHNSON, Employee-plaintiff v. HERBIE\u2019S PLACE, Employer, Uninsured, Defendant, NORTH CAROLINA INDUSTRIAL COMMISSION, Agency of the State of North Carolina, Plaintiff v. HERBIE\u2019S PLACE, L.L.C., and BILL KENNEDY, Individually, Defendants"
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      {
        "text": "LEVINSON, Judge.\nThis appeal arises from two consolidated actions: (1) a workers\u2019 compensation claim filed by plaintiff Michael Johnson, and (2) a petition for assessment of administrative penalty filed by the Industrial Commission against defendants (Herbie\u2019s Place, L.L.C., and Bill Kennedy, individually), plaintiff\u2019s employer. Defendants appeal both the award of disability benefits to plaintiff and the assessment of a civil penalty. For the reasons that follow, we affirm.\nThe procedural history of this case is as follows: On 24 January 2000, plaintiff filed an Industrial Commission Form 18, \u201cNotice of Accident to Employer.\u201d Plaintiff alleged that he suffered a back injury as a result of a workplace fall occurring on 1 January 2000. Defendants denied his claim for medical expenses and disability, and plaintiff sought a hearing before the Commission. On 1 March 2000, the Industrial Commission filed a Petition for Assessment of Administrative Penalty for defendants\u2019 failure to have Workers\u2019 Compensation insurance or self-insurance. The Industrial Commission also moved to consolidate the actions.\nBoth cases were heard before a deputy commissioner of the Industrial Commission on 9 May 2000. On 23 August 2000, the deputy commissioner awarded plaintiff temporary total disability and medical expenses. The Opinion and Award also assessed a civil penalty against defendant Herbie\u2019s Place of $37,200, and against individual defendant Kennedy in \u201can amount equal to 100% of the medical and disability compensation due to [plaintiff].\u201d The order provided for a reduction in the civil penalties if defendants paid plaintiff \u201call compensation due under the North Carolina Workers\u2019 Compensation Act.\u201d Defendants appealed to the Full Commission, which issued its Opinion and Award on 16 November 2001. The Industrial Commission affirmed the deputy commissioner\u2019s awards in both cases. The opinion was unanimous as to the administrative penalty. Commissioner Scott dissented from the award of temporary total disability. Defendants appealed to this Court on 11 December 2001.\nStandard of Review\n\u201cThe Workers\u2019 Compensation Act should be liberally construed to achieve its purpose of providing compensation to employees injured by accident arising out of and in the course of their employment[.]\u201d Lynch v. Construction Co., 41 N.C. App. 127, 130, 254 S.E.2d 236, 238, cert. denied, 298 N.C. 298, 259 S.E.2d 914 (1979). \u201cThe standard of appellate review of an opinion and award of the Industrial Commission in a workers\u2019 compensation case is whether there is any competent evidence in the record to support the Commission\u2019s findings of fact and whether these findings support the Commission\u2019s conclusions of law.\u201d Lineback v. Wake County Board of Commissioners, 126 N.C. App. 678, 680, 486 S.E.2d 252, 254 (1997). The Industrial Commission\u2019s findings of fact \u201care conclusive on appeal when supported by competent evidence . . . even [if] there is evidence to support a contrary finding[,]\u201d Morrison v. Burlington Industries, 304 N.C. 1, 6, 282 S.E.2d 458, 463 (1981), and \u201cmay be set aside on appeal [only] when there is a complete lack of competent evidence to support them[.]\u201d Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000).\n\u201cWhether the full Commission conducts a hearing or reviews a cold record, N.C.G.S. \u00a7 97-85 places the ultimate fact-finding function with the Commission[.]\u201d Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 413 (1998). Where \u201cdefendants\u2019 interpretation of the evidence is not the only reasonable interpretation[, it] is for the Commission to determine the credibility of the witnesses, the weight to be given the evidence, and the inferences to be drawn from it. As long as the Commission\u2019s findings are supported by competent evidence of record, they will not be overturned on appeal.\u201d Rackley v. Coastal Painting, 153 N.C. App. 469, 472, 570 S.E.2d 121, 124 (2002) (citation omitted). Therefore, \u201cappellate courts reviewing Commission decisions are limited to reviewing whether any competent evidence supports the Commission\u2019s findings of fact and whether the findings of fact support the Commission\u2019s conclusions of law.\u201d Deese v. Champion Int\u2019l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000) (citing Adams, 349 N.C. at 681, 509 S.E.2d at 413). However, the Industrial Commission\u2019s conclusions of law are reviewable de novo. Lewis v. Craven Regional Medical Center, 122 N.C. App. 143, 468 S.E.2d 269 (1996).\nDefendants argue first that the Industrial Commission \u201ccommitted reversible error by failing to make [certain] specific findings of fact supported by competent and unrebutted evidence[.]\u201d Defendants contend that their proposed findings were \u201cnecessary to decide in order for the appellate court to determine whether there was any adequate basis for the Commission\u2019s ultimate findings of fact.\u201d\nDefendants correctly state that the Industrial Commission \u201cmust make specific findings of fact as to each material fact upon which the rights of the parties in a case involving a claim for compensation depend.\u201d Hansel v. Sherman Textiles, 304 N.C. 44, 59, 283 S.E.2d 101, 109 (1981) (citing Wood v. Stevens & Co., 297 N.C. 636, 256 S.E.2d 692 (1979)). Thus, \u201cthe Commission must find those facts which are necessary to support its conclusions of law.\u201d Peagler v. Tyson Foods, Inc., 138 N.C. App. 593, 602, 532 S.E.2d 207, 213 (2000).\nIn the instant case, the Industrial Commission awarded plaintiff temporary total disability and medical expenses. Under N.C.G.S. \u00a7 97-2(9) (2001), \u201c \u2018disability\u2019 means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.\u201d A compensable injury in the meaning of the workers\u2019 compensation statute is an \u201cinjury by accident arising out of and in the course of the employment^]\u201d N.C.G.S. \u00a7 97-2(6) (2001). With respect to back injuries, G.S. \u00a7 97-2(6) also provides that\nwhere injury to the back arises out of and in the course of the employment and is the direct result of a specific traumatic incident of the work assigned, \u2018injury by accident\u2019 shall be construed to include any disabling physical injury to the back arising out of and causally related to such incident.\nIn the factual context of the present case, the Industrial Commission\u2019s findings of fact should be sufficient to establish: (1) that plaintiff fell, suffering a \u201cspecific traumatic incident,\u201d in the course of his employment; (2) that he injured his back as a result of the fall; and (3) that, as a result of the injury to his back, plaintiff was unable \u201cto earn the wages which [he] was receiving at the time of injury in the same or any other employment.\u201d Against this backdrop, we evaluate the Order of the Industrial Commission, which included the following pertinent findings of fact:\n1. . . . [Defendant employed plaintiff as a cook. . . .\n2. Plaintiff worked ... for defendant on 31 December 1999 and 1 January 2000. At approximately 5:30 a.m., plaintiff slipped in the kitchen and fell on his back. Two of his co-workers . . . saw him on the floor immediately after he fell. . . .\n4. A co-employee, Larry Jones, was working at defendant restaurant on the night of 31 December 1999. . . . [He] saw plaintiff slip on a small amount of butter or margarine and fall, hitting his \u201ctail and right elbow\u201d on the tile floor of the kitchen. Mr. Jones took plaintiff from defendant\u2019s business to the emergency room at. . . [the] Hospitalf.]\u201d\n5. Plaintiff was admitted at 6:05 a.m. on 1 January 2000. Plaintiff reported that he had slipped and fallen while working, injuring his low back. Plaintiff stated that this incident had occurred at work just prior to coming to the hospital. He complained of severe pain. A[n] examination by . . . [a] physician revealed swelling and marks on the skin. The physician excused plaintiff from work pending evaluation at [Moses Cone] Occupational Health.\n6. On 6 January 2000, plaintiff was seen at Moses Cone Occupational Health by [Dr.] Ciacchella, M.D., . . . [who] ordered an MRI to be completed the next day[,] . . . [and] excused plaintiff from work for another day.\n7. The . .. MRI revealed a broad based left sided disc protrusion at L5-S1 potentially encroaching on the left SI nerve root. ... Dr. Ciacchella . . . excused plaintiff from work until ... 10 January 2000.\n8. Plaintiff returned to Dr. Ciacchella on 10 January 2000. Dr. Ciacchella assessed plaintiff as having a herniated nucleus pul-posus at L5-S1 with fairly significant symptomotalogy. Dr. Ciacchella referred plaintiff to a neurosurgeon and excused him from work until insurance authorized the referral.\n14. As a result of the incident on 1 January 2000, plaintiff was rendered incapable of earning wages from defendant or any other employer beginning from 1 January 2000 and continuing through the date of the hearing. . . .\n15. The incident on 1 January 2000 was not caused by plaintiffs intoxication.\nThese findings of fact are supported by competent record evidence, and establish in a straightforward manner that plaintiff fell on 1 January 2000 while performing his job; that the fall was witnessed by Larry Jones; and that as a result of his injury, Dr. Ciacchella determined that he was unable to work until he could obtain neurosurgery. The testimony offered by Jones and Dr. Ciacchella, the two witnesses cited by the Commission in its Opinion, was unimpeached; there is no evidence that Jones was pressured by either side, and no evidence that Dr. Ciacchella was associated with substance abuse or other misbehavior. Further, the authenticity of the Moses Cone Occupational Health records was not challenged. The Commission\u2019s findings also support its conclusions of law that (1) \u201cplaintiff sustained an injury by accident arising out of and in the course of his employment with defendant,\u201d and (2) \u201cplaintiff is entitled to payment of temporary total disability compensation\u201d and \u201cis entitled to payment of all medical expenses incurred or to be incurred as a result of his low back injury[.]\u201d We conclude, therefore, that the Industrial Commission made \u201cspecific findings with respect to crucial facts upon which the question of plaintiffs right to compensation depends.\u201d Trivette v. Mid-South Mgmt., Inc., 154 N.C. App. 140, 144, 571 S.E.2d 692, 695 (2002) (quoting Gaines v. Swain & Son, Inc., 33 N.C. App. 575, 579, 235 S.E.2d 856, 859 (1977)).\nDefendants, however, assert that the Industrial Commission was required to make certain additional findings, which they contend were \u201cmaterial findings of fact\u201d that were \u201csupported by competent and unrebutted evidence.\u201d The thrust of defendants\u2019 proposed findings is that plaintiff had a history of substance abuse, including abuse of prescribed medications such as OxyContin; and that plaintiff\u2019s wife pressured other employees of Herbie\u2019s Place to make false statements at the Industrial Commission hearing. Specifically, defendant argues that the Industrial Commission should have found that (1) in order to obtain prescriptions for OxyContin and other controlled substances, plaintiff consulted a Dr. Clark on multiple occasions in 1999 and 2000; (2) that Dr. Clark was subsequently charged with distribution of controlled substances, and was treated for substance abuse; (3) that in order to obtain controlled substances, plaintiff had in 2000, consulted a Dr. Harris, and had gone to Morehead Memorial Hospital; (4) that defendant may have lied to Drs. Clark or Harris, or to physicians at Morehead Memorial, to obtain prescriptions for controlled substances; and (5) that plaintiff\u2019s wife had attempted to influence the testimony of certain co-employees, other than Mr. Jones, who might be witnesses before the Industrial Commission.\nWe conclude that defendants\u2019 proposed findings of fact are not necessary to our review of the Commission\u2019s determination of plaintiff\u2019s entitlement to disability compensation. Defendants\u2019 suggested findings, if true, would generally establish that plaintiff was a drug abuser, and that his wife is not a person of integrity. This evidence may have been pertinent to the Commission\u2019s determination of the weight and credibility to assign specific testimony or evidence. However:\nthe Commission does not have to explain its findings of fact. . . [or] which evidence or witnesses it finds credible. Requiring the Commission to explain its credibility determinations and allowing the Court of Appeals to review the Commission\u2019s explanation of those credibility determinations would be inconsistent with our legal system\u2019s tradition of not requiring the fact finder to explain why he or she believes one witness over another or believes one piece of evidence is more credible than another.\nDeese, 352 N.C. at 116-17, 530 S.E.2d at 553. Moreover, the evidence proffered by defendants in support of their proposed findings was all before the Industrial Commission.\nDefendants merely want this Court to weigh the opinions and testimony of the witnesses in a manner which benefits defendants. On an appeal from the Industrial Commission, this Court is unable to weigh evidence.... [T]he Commission may assign more weight and credibility to certain testimony than other. Moreover, if the evidence before the Commission is capable of supporting two contrary findings, the determination of the Commission is conclusive on appeal.\nJohnson v. Southern Tire Sales & Serv., 152 N.C. App. 323, 327, 567 S.E.2d 773, 776, disc. review denied, 356 N.C. 437, 572 S.E.2d 784 (2002). This assignment of error is overruled.\nDefendants next argue that the Industrial Commission erred by \u201cfailing to deny an award of compensation to plaintiff in light of the numerous established instances of perjury, deceit, and subornation of perjury by plaintiff.\u201d We disagree.\nIntrinsic fraud on the court refers to fraud relating to the \u201cproceeding itself and concerning some matter necessarily under the consideration of the court upon the merits.\u201d Johnson v. Stevenson, 269 N.C. 200, 152 S.E.2d 214 (1967). Defendants correctly assert that perjury is an intrinsic fraud on the court. Horne v. Edwards, 215 N.C. 622, 625, 3 S.E.2d 1, 3 (1939) (discussing \u201c[i]ntrinsic fraud, as for example, perjury, or the use of false or manufactured evidence\u201d); McCoy v. Justice, 199 N.C. 602, 605, 155 S.E. 452, 454 (1930) (\u201cperjury and false swearing\u201d considered an \u201cintrinsic fraud\u201d). However:\nIn North Carolina perjury is held to be intrinsic fraud and ordinarily is not ground for equitable relief against a judgment resulting from it. . . . [A] party against whom a judgment has been rendered may be granted relief on the grounds of fraud provided the fraud practiced upon him prevented him from presenting all of his case to the court, but.. .judgment will not be set aside on the grounds of perjured testimony or for any other matter that was presented and considered in the judgment under attack.\nThrasher v. Thrasher, 4 N.C. App. 534, 545, 167 S.E.2d 549, 556-57 (1969) (citing Cody v. Hovey, 216 N.C. 391, 5 S.E.2d 165, and Horne v. Edwards, 215 N.C. 622, 3 S.E.2d 1) (emphasis added). Thus, the general rule is that \u201ca judgment cannot be vacated because of perjured testimony unless the party charged with perjury has been indicted and convicted or he has passed beyond the jurisdiction of courts and is not amenable to criminal process.\u201d Gillikin v. Springle, 254 N.C. 240, 244, 118 S.E.2d 611, 614 (1961) (citing Horne, 215 N.C. 622, 3 S.E.2d 1, and McCoy, 199 N.C. 602, 155 S.E. 452). The rationale is that \u201c [i]f perjury were accepted as a ground for relief, litigation might be endless; the same issues would have to be tried repeatedly[,] ... and so the rule is, that a final judgment cannot be annulled merely because it can be shown to have been based on perjured testimony[.]\u201d Mottu v. Davis, 153 N.C. 160, 162-63, 69 S.E. 63, 64 (1910).\nIn the instant case, there have been no criminal charges of perjury arising out of this case. Defendants\u2019 allegation of \u201cnumerous established instances\u201d of perjury rests, therefore, upon their assessment of the credibility of the evidence and testimony. However, \u201c[t]he Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.\u201d Anderson v. Construction Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965) (citations omitted). We conclude that \u201c[a]lthough the Commission had the discretion to find that [witness\u2019s] responses were less than candid, or wholly untruthful, we cannot say, on the record before us, that [the witnesses] committed perjury.\u201d Knight v. Cannon Mills Co., 82 N.C. App. 453, 465, 347 S.E.2d 832, 840, disc. review denied, 318 N.C. 507, 349 S.E.2d 861 (1986). This assignment of error is overruled.\nDefendants argue next that the Industrial Commission erred by making a finding of fact not supported by any competent evidence. We disagree.\nDefendants contend that the Industrial Commission\u2019s finding regarding \u201cprescriptions being filled other than from Dr. Harris\u201d is unsupported by competent evidence. Their contention is based upon the existence of testimony from Dr. Clark, which defendants argue is in conflict with the Industrial Commission\u2019s findings of fact. Defendants have elsewhere argued that Dr. Clark is a substance abuser who has lost all hospital privileges, and who is currently being prosecuted in federal court for distribution of controlled substances. Such evidence was before the Industrial Commission in its determination of whether to make findings of fact based upon the testimony \u2014 and thus the credibility \u2014 of Dr. Clark. We reiterate that the Commission\u2019s findings \u201c \u2018are conclusive on appeal when supported by competent evidence, even though there be evidence that would support findings to the contrary.\u2019 \u201d Adams, 349 N.C. at 681, 509 S.E.2d at 414 (quoting Jones v. Desk Co., 264 N.C. 401, 402, 141 S.E.2d 632, 633 (1965)), and that \u201c[i]t is the Commission\u2019s duty to judge the credibility of the witnesses and to determine the weight given to each testimony.\u201d Gordon v. City of Durham, 153 N.C. App. 782, 786, 571 S.E.2d 48, 51 (2002) (citing Bailey v. Sears Roebuck & Co., 131 N.C. App. 649, 653, 508 S.E.2d 831, 834 (1998)).\nSecondly, the challenged findings of fact concern whether or not plaintiff had tried to get controlled substances from Dr. Clark. Evidence of plaintiff\u2019s purported substance abuse was also before the Industrial Commission in its determination of plaintiff\u2019s credibility. Having resolved issues of credibility to its satisfaction, the Industrial Commission made findings of fact that support its determination regarding plaintiff\u2019s legal entitlement to workers\u2019 compensation. This assignment of error is overruled.\nDefendants argue next that the Industrial Commission\u2019s finding \u201cthat an injury occurred which disabled plaintiff, must be set aside for lack of competent evidence to support it.\u201d We disagree.\nDefendants argue that \u201c[t]he unrebutted evidence established that plaintiff\u2019s back problems developed over a period of time[,]\u201d and thus that there is no competent evidence that the injury occurring on 1 January 2000 was disabling. This argument is based upon evidence tending to show that plaintiff went to several medical care providers during 1999 and 2000 claiming to suffer from painful conditions, including back pain, that could only be treated with controlled substances. Defendants also direct our attention to evidence tending to show that, on one or more of plaintiff\u2019s \u201cdrug-seeking\u201d visits to medical providers, plaintiff listed an employer on the waiting room form.\nAs defendants argue, one plausible interpretation of the evidence is that plaintiffs condition was due to a long and gradual development of a back condition, rather than from the fall on 1 January 2000, and that the fall did not prevent plaintiff from, e.g., bowling, working, or moving a chair, activities which defendants contend are documented by witness testimony. However, another plausible interpretation, depending on one\u2019s determination of the relative strength and credibility of testimony, is that plaintiff suffered a bona fide injury to his back on 1 January 2000, which was separate and apart from his alleged substance abuse or his false statements to certain medical providers.\n\u201c \u2018[T]he findings of fact made by the Commission are conclusive on appeal, ... if supported by competent evidence . . . even though there is evidence which would support a finding to the contrary.\u2019 \u201d Hunter v. Perquimans County Bd. of Educ., 139 N.C. App. 352, 355, 533 S.E.2d 562, 564, (quoting Hansel, 304 N.C. at 49, 283 S.E.2d at 104), cert. denied, 352 N.C. 674, 545 S.E.2d 424 (2000). Rivera v. Trapp, 135 N.C. App. 296, 304, 519 S.E.2d 777, 782 (1999) (\u201cif the evidence before the Commission is capable of supporting two contrary findings, the determination of the Commission is conclusive on appeal\u201d). This assignment of error is overruled.\nFinally, defendants argue that the Industrial Commission erred by imposing a fine for failure to obtain workers\u2019 compensation insurance. Defendants contend first that the Industrial Commission \u201cerred as a matter of law when it determined that the civil penalty provisions of N.C.G.S. \u00a7 97-94(b) are mandatory[.]\u201d We do not agree.\nN.C.G.S. \u00a7 97-94(b) (2001), which governs imposition of a civil penalty against an employer such as Herbie\u2019s Place, provides in pertinent part:\nAny employer required to secure the payment of compensation under this Article who refuses or neglects to secure such compensation shall be punished by a penalty of one dollar ($1.00) for each employee, but not less than fifty dollars ($50.00) nor more than one hundred dollars ($100.00) for each day of such refusal or neglect, and until the same ceases. . . . The penalty herein provided may be assessed by the Industrial Commission administratively, with the right to a hearing if requested within 30 days after notice of the assessment of the penalty and the right of review and appeal as in other cases. . . .\n(emphasis added). The language \u201cshall be punished\u201d indicates that the imposition of a penalty against the employer is mandatory if the employer \u201crefuses or neglects\u201d to obtain workers\u2019 compensation insurance. See Pollock v. Waspco Corp., 148 N.C. App. 381, 388, 559 S.E.2d 567, 572 (2002) (\u201cG.S. \u00a7 97-18(g) [is] mandatory\u201d where statute states penalty \u201cshall be added\u201d in certain situations); Living Centers-Southeast, Inc. v. N.C. Dep\u2019t of Health & Human SerVs., 138 N.C. App. 572, 580, 532 S.E.2d 192, 197 (2000) (\u201c[o]rdinarily, the word \u2018must\u2019 and the word \u2018shall,\u2019 in a statute, are deemed to indicate a legislative intent to make the provision of the statute mandatory\u201d) (quoting State v. House, 295 N.C. 189, 203, 244 S.E.2d 654, 662 (1978)).\nDefendants argue that because the statute also provides that \u201c[t]he penalty herein provided may be assessed by the Industrial Commission administratively,\u201d that the imposition of a penalty is optional. However, we agree with the Industrial Commission that this language \u201cdoes not give the Commission discretion as to whether or not the penalty should be assessed . . . [but] allows the Industrial Commission some discretion in deciding whether or not to assess the penalty administratively without a hearing.\u201d Defendants also contend that, were this Court to decide that the Industrial Commission\u2019s imposition of a civil penalty is discretionary, the presence of \u201cconsiderable mitigating evidence\u201d would make it inappropriate to impose a civil penalty upon the present defendant. However, as we conclude that imposition of civil penalties is required under the statute, we necessarily reject defendants\u2019 argument that such penalties may only be assessed in the absence of \u201cmitigating evidence.\u201d\nDefendants also argue that, before a civil penalty could be imposed against either defendant, the Industrial Commission was required to make certain findings establishing the existence of \u201cneglect\u201d which defendants contend requires proof of \u201csomething more than mere failure to carry out a duty.\u201d We disagree.\nUnder N.C.G.S. \u00a7 97-86 (2001), an appeal from an opinion and award of the Industrial Commission is taken \u201cunder the same terms and conditions as govern appeals from the superior court to the Court of Appeals in ordinary civil actions[, and the] procedure for the appeal shall be as provided by the rules of appellate procedure.\u201d Further, compliance with the North Carolina Rules of Appellate Procedure is mandatory. Marsico v. Adams, 47 N.C. App. 196, 266 S.E.2d 696 (1980). N.C.R. App. P. 10(a) states that \u201cthe scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal.\u201d See Singleton v. Haywood Elec. Membership Corp., 151 N.C. App. 197, 204, 565 S.E.2d 234, 239 (2002) (where defendant \u201cfailed to set out [relevant] argument as an assignment of error in the record on appeal\u201d this Court holds that \u201cdefendant has failed to properly preserve this question for appellate review\u201d). Further, N.C.R. App. P. 10(b) requires that \u201cto preserve a question for appellate review . . . [i]t is . . . necessary for the complaining party to obtain a ruling upon the party\u2019s request, objection or motion.\u201d\nIn the instant case, defendants failed to assign error to any of the Commission\u2019s findings of fact regarding defendants\u2019 failure to secure workers\u2019 compensation insurance. Thus, these findings are conclusively established on appeal. Okwara v. Dillard Dep\u2019t Stores, Inc., 136 N.C. App. 587, 591, 525 S.E.2d 481, 484 (2000) (\u201ceach contested finding of fact must be separately assigned as error, and the failure to do so results in a waiver of the right to challenge the sufficiency of the evidence to support the finding\u201d) (citing Taylor v. N. C. Dept. of Transportation, 86 N.C. App. 299, 357 S.E.2d 439 (1987). Therefore, our review \u201cis limited to the question of whether the [Industrial Commission\u2019s] findings of fact, which are presumed to be supported by competent evidence, support its conclusions of law and judgment.\u201d Okwara, 136 N.C. App. at 591-92, 525 S.E.2d at 484.\nIn the instant case, the Industrial Commission made the following pertinent findings of fact:\n1. . . . Herbie\u2019s Place was a limited liability company operating a restaurant business. . . .\n2. Defendant Bill Kennedy was a corporate officer with the authority and ability to bring the defendant-employer into compliance with [N.C.G.S. \u00a7] 97-93.\n3. . . . defendant-employer regularly employed three or more persons.\n5. . . . defendant-employer failed to maintain a policy of workers\u2019 compensation insurance . . . and Bill Kennedy failed to exercise his authority and ability to bring defendant- employer into compliance with [N.C.G.S. \u00a7] 97-93.\nThe imposition of a penalty against Herbie\u2019s Place is governed by G.S. \u00a7 97-94(b), which addresses imposition of a civil penalty against an employer and provides in part that \u201c[a]ny employer required to secure the payment of compensation under this Article who refuses or neglects to secure such compensation shall be punished by a penalty[.]\u201d (emphasis added). Assessment of the penalty against individual defendant Kennedy is governed by N.C.G.S. \u00a7 97-94(d) (2001), which provides in relevant part as follows:\n. . . Any person who, with the ability and authority to bring an employer in compliance with G.S. 97-93, neglects to bring the employer in compliance, shall be guilty of a Class 1 misdemeanor. Any person who violates this subsection may be assessed a civil penalty by the Commission in an amount up to one hundred percent (100%) of the amount of any compensation due the employer\u2019s employees injured during the time the \u2022employer failed to comply with G.S. 97-93.\n(emphasis added). Thus, a civil penalty must be imposed upon an employer who neglects to secure workers\u2019 compensation, and may be imposed upon an individual who neglects to bring the employer into compliance. As discussed above, the Commission\u2019s findings that defendant-employer was subject to the provisions of the workers\u2019 compensation statute yet failed to obtain insurance, and that Kennedy was a corporate official who had the ability and authority to enforce compliance yet failed to do so, are conclusively established. However, defendants argue that the Industrial Commission\u2019s findings that \u201cdefendant-employer failed to maintain a policy of workers\u2019 compensation insurance\u201d and that defendant \u201cKennedy failed to exercise his authority and ability to bring defendant-employer into compliance\u201d do not support the Industrial Commission\u2019s conclusion of law that defendants were in violation of N.C.G.S. \u00a7 97-93 (2001), because of the Commission\u2019s use of the phrase \u201cfailed to\u201d rather than \u201cneglected to\u201d comply with the statute. We do not agree.\nDefendants propose that in our analysis of G.S. \u00a7 97-94(b) and (d), we apply to the word \u201cneglect\u201d the definition given to the word when it is used as a noun, as in \u201cthe neglect of a duty,\u201d and further assert that \u201cneglect\u201d must mean \u201csomething more than mere failure to carry out a duty.\u201d However, in G.S. \u00a7 97-94(b) and (d), the word \u201cneglect\u201d is found in the phrase \u201cneglects to secure such compensation,\" and, thus, may properly be defined as follows: \u201c([where] foll[owed] by verbal noun, or to + infinitive]): Fail, overlook, or for get the need to.\" Oxford Encyclopedic English Dictionary 970 (Judy Pearsall& Bill Trumble, eds., 2nd ed. 1995) (emphasis added). We conclude that in the context of N.C.G.S. \u00a7 97-94, the phrases \u201cneglects to\u201d secure workers\u2019 compensation, or \u201cneglects to\u201d bring the employer into compliance, carry essentially the same meaning as \u201cfails to secure\u201d workers\u2019 compensation or \u201cfails to bring the employer into compliance.\u201d This conclusion is supported by prior appellate opinions addressing G.S. \u00a7 97-94, in which the phrase \u201cneglects to\u201d obtain workers\u2019 compensation coverage is used interchangeably and synonymously with \u201cfails to\u201d obtain coverage. See, e.g., Harrison v. Tobacco Transp., Inc., 139 N.C. App. 561, 570, 533 S.E.2d 871, 877, disc. review denied, 353 N.C. 263, 546 S.E.2d 96 (2000) (where Industrial Commission finds that \u201cdefendant-employer had failed to \u25a0 secure workers\u2019 compensation insurance\u201d this Court affirms imposition of fine, holding that \u201cthe Commission correctly determined that [employer] had failed to procure necessary insurance for its North Carolina operations, and thus, that [employer] is in violation of G.S. \u00a7 97-94\u201d) (emphasis added); Reece v. Forga, 138 N.C. App. 703, 705, 531 S.E.2d 881, 883, disc. review denied, 352 N.C. 676, 545 S.E.2d 428 (2000) (\u201cwhere the employer fails to secure the payment of compensation . . . such employer shall be liable during continuance of such refusal or neglect\u201d) (emphasis added). Moreover, regardless of which definition of \u2018neglect\u2019 is applied, the existence of neglect is established in the present case, in which defendants concede that they \u201c[were] very tied up and preoccupied\u201d and simply \u201cforgot about it.\u201d We conclude that the Industrial Commission did not err by imposing a penalty on defendants for their failure to obtain workers\u2019 compensation insurance as required by G.S. \u00a7 97-94. This assignment of error is overruled.\nFor the reasons discussed above, the opinion and award of the Industrial Commission is\nAffirmed.\nJudges McGEE and HUDSON concur.",
        "type": "majority",
        "author": "LEVINSON, Judge."
      }
    ],
    "attorneys": [
      "Hodgman and Oxner, by Todd P. Oxner, for plaintiff-appellee Michael Johnson.",
      "Attorney General Roy Cooper, by Assistant Attorney General Tina Lloyd Hlabse and Assistant Attorney General Adrian Phillips, for the State.",
      "Smith, James, Rowlett & Cohen, L.L.P., by Norman B. Smith, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "MICHAEL JOHNSON, Employee-plaintiff v. HERBIE\u2019S PLACE, Employer, Uninsured, Defendant, NORTH CAROLINA INDUSTRIAL COMMISSION, Agency of the State of North Carolina, Plaintiff v. HERBIE\u2019S PLACE, L.L.C., and BILL KENNEDY, Individually, Defendants\nNo. COA02-298\n(Filed 15 April 2003)\n1. Workers\u2019 Compensation\u2014 proposed findings \u2014 province of Commission \u2014 credibility determinations \u2014 explanations not required\nThe Industrial Commission did not err in a workers\u2019 compensation case by not making defendant\u2019s proposed findings regarding the integrity of plaintiff\u2019s wife and plaintiff\u2019s alleged drug abuse. The Commission made specific findings regarding the crucial facts upon which plaintiff\u2019s right to compensation depends and does not have to explain its credibility determinations.\n2. Workers\u2019 Compensation\u2014 alleged perjury \u2014 no criminal action \u2014 credibility of evidence for Commission\nThe Industrial Commission correctly refused to deny a workers\u2019 compensation award based on plaintiffs alleged perjury where there were no criminal charges. Defendants\u2019 allegations of perjury rest upon the credibility of testimony and evidence, of which the Commission is the sole judge.\n3. Workers\u2019 Compensation\u2014 findings \u2014 credibility and weight of evidence\n' The Industrial Commission did not err in a workers\u2019 compensation action by making a finding which defendants contended conflicted with the evidence. It is the Commission\u2019s duty to judge the credibility of the witnesses and to determine the weight to be given testimony.\n4. Workers\u2019 Compensation\u2014 back injury \u2014 cause\u2014findings\u2014 conclusive on appeal\nThere was sufficient evidence that the back injury suffered by a workers\u2019 compensation plaintiff was due to a fall at work rather than the result of a long and gradual deterioration of his back. The Commission\u2019s findings of fact are conclusive on appeal, even if there is evidence to support a contrary finding.\n5. Workers\u2019 Compensation\u2014 failure to obtain insurance\u2014 penalty mandatory\nThe Industrial Commission did not err by imposing a fine for failure to obtain workers\u2019 compensation insurance. Under N.C.G.S. \u00a7 97-94(b), the imposition of a penalty is mandatory if the employer refuses or neglects to obtain workers\u2019 compensation insurance, and the phrase \u201cfailed to\u201d obtain insurance in the Commission\u2019s findings carries the same meaning as \u201cneglected to\u201d carry insurance.\nAppeal by defendant from opinion and award entered 16 November 2001 by the North Carolina Industrial Commission. Heard in the Court of Appeals 30 October 2002.\nHodgman and Oxner, by Todd P. Oxner, for plaintiff-appellee Michael Johnson.\nAttorney General Roy Cooper, by Assistant Attorney General Tina Lloyd Hlabse and Assistant Attorney General Adrian Phillips, for the State.\nSmith, James, Rowlett & Cohen, L.L.P., by Norman B. Smith, for defendant-appellant."
  },
  "file_name": "0168-01",
  "first_page_order": 200,
  "last_page_order": 214
}