{ "id": 9186909, "name": "HAROLD E. SMITH, Employee, Plaintiff-Appellee v. FIRST CHOICE SERVICES, Employer, and STATE FARM INSURANCE COMPANY, Carrier, Defendants-Appellants", "name_abbreviation": "Smith v. First Choice Services", "decision_date": "2003-06-03", "docket_number": "No. COA02-814", "first_page": "244", "last_page": "252", "citations": [ { "type": "official", "cite": "158 N.C. App. 244" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "561 S.E.2d 287", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "296-97" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 105", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9125602 ], "year": 2002, "pin_cites": [ { "page": "119" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0105-01" ] }, { "cite": "342 S.E.2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "846" }, { "page": "846" } ], "opinion_index": 0 }, { "cite": "316 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4695872 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "542" }, { "page": "541-42" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0539-01" ] }, { "cite": "555 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "318-19" } ], "opinion_index": 0 }, { "cite": "354 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138401, 138313, 138378, 138487, 138394 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0228-04", "/nc/354/0228-02", "/nc/354/0228-01", "/nc/354/0228-05", "/nc/354/0228-03" ] }, { "cite": "550 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "197" }, { "page": "197" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 312", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11434008 ], "year": 2001, "pin_cites": [ { "page": "318" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0312-01" ] }, { "cite": "283 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "107", "parenthetical": "denying compensation due to the failure of the claimant, who had the burden of proof, to prove any one of the elements of compensation" }, { "page": "109" } ], "opinion_index": 0 }, { "cite": "304 N.C. 44", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565283 ], "year": 1981, "pin_cites": [ { "page": "54", "parenthetical": "denying compensation due to the failure of the claimant, who had the burden of proof, to prove any one of the elements of compensation" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0044-01" ] }, { "cite": "560 S.E.2d 800", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 285", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220177, 219997, 220157, 220014 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0285-03", "/nc/355/0285-01", "/nc/355/0285-02", "/nc/355/0285-04" ] }, { "cite": "551 S.E.2d 486", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "490-91" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 584", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11439001 ], "year": 2001, "pin_cites": [ { "page": "590" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0584-01" ] }, { "cite": "231 S.E.2d 163", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "166" }, { "page": "166" } ], "opinion_index": 0 }, { "cite": "32 N.C. App. 55", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548532 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "59" }, { "page": "59" } ], "opinion_index": 0, "case_paths": [ "/nc-app/32/0055-01" ] }, { "cite": "286 S.E.2d 868", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "872", "parenthetical": "quoting Durham v. Creech, 32 N.C. App. 55, 59, 231 S.E.2d 163, 166 (1977)" } ], "opinion_index": 0 }, { "cite": "56 N.C. App. 26", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519340 ], "year": 1982, "pin_cites": [ { "page": "32-33", "parenthetical": "quoting Durham v. Creech, 32 N.C. App. 55, 59, 231 S.E.2d 163, 166 (1977)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/56/0026-01" ] }, { "cite": "393 S.E.2d 141", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "144" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 246", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522103 ], "year": 1990, "pin_cites": [ { "page": "252" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0246-01" ] }, { "cite": "487 S.E.2d 157", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "159" }, { "page": "160", "parenthetical": "holding that the insurance company had the burden of proving misrepresentation in the enforcement of an insurance contract" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 795", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11713470 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "798" }, { "page": "799" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0795-01" ] }, { "cite": "568 S.E.2d 214", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "217", "parenthetical": "quoting Metropolitan Property and Cas. Ins. Co. v. Dillard, 126 N.C. App. 795, 798, 487 S.E.2d 157, 159 (1997)" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 659", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251186 ], "year": 2002, "pin_cites": [ { "page": "662", "parenthetical": "quoting Metropolitan Property and Cas. Ins. Co. v. Dillard, 126 N.C. App. 795, 798, 487 S.E.2d 157, 159 (1997)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0659-01" ] }, { "cite": "12 S.E.2d 250", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1940, "pin_cites": [ { "page": "251-52" } ], "opinion_index": 0 }, { "cite": "218 N.C. 726", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624406 ], "year": 1940, "pin_cites": [ { "page": "728" } ], "opinion_index": 0, "case_paths": [ "/nc/218/0726-01" ] }, { "cite": "73 S.E.2d 488", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "pin_cites": [ { "page": "495-96" } ], "opinion_index": 0 }, { "cite": "236 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626252 ], "year": 1952, "pin_cites": [ { "page": "445" } ], "opinion_index": 0, "case_paths": [ "/nc/236/0435-01" ] }, { "cite": "141 S.E.2d 632", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "633" } ], "opinion_index": 0 }, { "cite": "264 N.C. 401", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573590 ], "year": 1965, "pin_cites": [ { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0401-01" ] }, { "cite": "144 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1965, "opinion_index": 0 }, { "cite": "265 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575582 ], "year": 1965, "pin_cites": [ { "page": "434" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0431-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "414", "parenthetical": "quoting Anderson v. Construction Co., 265 N.C. 431, 434, 144 S.E.2d 272 (1965)" }, { "page": "414" }, { "page": "414" } ], "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "681", "parenthetical": "quoting Anderson v. Construction Co., 265 N.C. 431, 434, 144 S.E.2d 272 (1965)" }, { "page": "681" }, { "page": "681" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "530 S.E.2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "553" } ], "opinion_index": 0 }, { "cite": "352 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684964 ], "year": 2000, "pin_cites": [ { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0109-01" ] } ], "analysis": { "cardinality": 797, "char_count": 20381, "ocr_confidence": 0.76, "pagerank": { "raw": 2.7274645206916066e-07, "percentile": 0.830707697630248 }, "sha256": "6557df0fa147ec0c0706099b1b947973fb2c99e8e634d5a285f9b4d33709bce8", "simhash": "1:a1e17fae80b8cc46", "word_count": 3203 }, "last_updated": "2023-07-14T17:16:33.883812+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUDSON and STEELMAN concur." ], "parties": [ "HAROLD E. SMITH, Employee, Plaintiff-Appellee v. FIRST CHOICE SERVICES, Employer, and STATE FARM INSURANCE COMPANY, Carrier, Defendants-Appellants" ], "opinions": [ { "text": "McGEE, Judge.\nState Farm Insurance Company (State Farm) appeals from the opinion and award of the Industrial Commission awarding disability compensation to Harold E. Smith (plaintiff).\nState Farm filed a Form 61 dated 30 July 1997 denying plaintiffs workers\u2019 compensation claim, stating that plaintiff was \u201cnot a covered employee under the Workers\u2019 Compensation Act.\u201d Plaintiff filed a Form 33 request for hearing dated 27 October 1997. State Farm filed a Form 33R response to request for hearing dated 15 December 1997 stating that defendants were not liable for benefits claimed by plaintiff.\nThe evidence before the Industrial Commission tended to show that First Choice Services (First Choice) was a small family-owned company in the business of insurance restoration work. Plaintiff was vice-president and secretary of First Choice and was responsible for sales, marketing and estimations. While trying to reach some cartons on 17 April 1997, plaintiff fell off a ladder onto a concrete warehouse floor and fractured both his femur and his left wrist. Plaintiff\u2019s average weekly wage was $581.40 at that time.\nState Farm began providing First Choice with workers\u2019 compensation insurance coverage in 1991. Initially, First Choice elected to exclude its officers from coverage under the policy. Peggy Smith (Mrs. Smith), plaintiff\u2019s wife and an employee of First Choice, testified that officers were excluded from coverage to save money because the officers\u2019 job requirements made it less likely they would be injured.\nMrs. Smith later revisited the issue of officer coverage with Richard Kepler (Kepler), an independent agent of State Farm. Mrs. Smith testified that when she asked Kepler if adding the officers, would \u201cshoot [her] premiums sky high,\u201d he responded \u201cnot really\u201d because there had been no previous workers\u2019 compensation claims against First Choice. Mrs. Smith claimed that Kepler explained that workers\u2019 compensation would pay two-thirds of an officer\u2019s salary if an officer was injured and unable to work. She also testified that when the policy was renewed, she asked Kepler to \u201cgo ahead and add the officers on.\u201d\nMrs. Smith testified that after plaintiff was injured, she called Kepler and asked if First Choice should submit a workers\u2019 compensation claim. Mrs. Smith said Kepler asked whether there was an officer\u2019s exclusion on First Choice\u2019s policy, and Mrs. Smith responded that there was not. Mrs. Smith also stated that Kepler then checked his computer to confirm whether there was an exclusion. Upon finding no officer exclusion, Kepler told Mrs. Smith to file a claim for workers\u2019 compensation.\nPlaintiff was disabled due to the accident and was unable to return to work. Mrs. Smith stated that First Choice voluntarily paid plaintiff one-third of plaintiff\u2019s salary. Mrs. Smith testified that First Choice made the payments because she was under the impression that workers\u2019 compensation would pay the other two-thirds of plaintiff\u2019s salary. Four months after plaintiffs accident, First Choice stopped paying any salary to plaintiff because business had declined in plaintiff\u2019s absence and money had become very tight.\nMrs. Smith testified that in July 1997 she received a letter from State Farm denying coverage to plaintiff. Upon receipt of the letter, she went to Kepler\u2019s office to inquire about why plaintiff was denied coverage. Kepler said he did not remember a prior conversation between Kepler and Mrs. Smith about adding the officers to the policy because \u201che talked to so many people he couldn\u2019t remember . . . individual conversations.\u201d\nAlthough Kepler testified that First Choice\u2019s policy did not include officer coverage, he also testified that it was possible that the conversation in which Mrs. Smith requested officer inclusion had occurred. Kepler admitted that his hard copy of the policy contained no exclusions. He later testified that an oral request was sufficient to change policy coverage. Kepler also testified that the premium statements did not indicate who was covered and that he was not accusing plaintiff or Mrs. Smith of fraud or misrepresentation. Furthermore, when Kepler was asked, \u201cas far as you know, [there] was a unilateral mistake by State Farm,\u201d he responded, \u201cI can\u2019t dispute that.\u201d\nState Farm employee Elise Cobb (Cobb) testified that all First Choice\u2019s premiums were current and that the workers\u2019 compensation policy in effect did not contain an officer exclusion as of 17 April 1997.\nState Farm audit supervisor Michael Chesnet (Chesnet) testified that during a 1995-1996 audit meeting, Mrs. Smith indicated that First Choice\u2019s officers were excluded from coverage. However, he admitted that he was not aware of what coverage Mrs. Smith requested from Kepler. Chesnet admitted that First Choice\u2019s annual premium had increased between 1996 and 1997, from $3,800 to $6,100 per year. Chesnet stated he was not the auditor in 1997 and did not speak with Mrs. Smith at that time. Chesnet testified that a computer system error during automatic renewal time accounted for the officer inclusion on First Choice\u2019s policy.\nA deputy commissioner, in a bifurcated hearing, filed an opinion and award on 15 December 1998, finding that Mrs. Smith\u2019s testimony was \u201cvery credible\u201d and that evidence indicated that a unilateral mistake was made by State Farm. The deputy commissioner concluded that plaintiff proved that \u201cplaintiff was an \u2018employee\u2019 of the corporate employer for purposes of the Worker\u2019s Compensation Act.\u201d A deputy commissioner filed another opinion and award on 15 June 2000 and awarded compensation to plaintiff in the amount of $387.60 per week.\nState Farm appealed to the Full Commission arguing that the findings of fact were not supported by the evidence. Plaintiff also requested attorney\u2019s fees, reimbursement to plaintiff for medical bills, and retroactive interest on the compensation award.\nThe Full Commission filed an opinion and award on 6 March 2002 which modified in part and affirmed in part the deputy commissioner\u2019s decisions. The opinion awarded plaintiff $387.60 per week for temporary total disability compensation, all medical expenses incurred as a result of the injury, and attorney\u2019s fees. State Farm appeals.\nWhen reviewing an Industrial Commission decision, our Court is \u201climited 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). The Industrial Commission is the finder of fact and this Court may not reweigh the evidence presented but must restrict its review to determining whether there is \u201c \u2018any evidence tending to support the finding.\u2019 \u201d Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (quoting Anderson v. Construction Co., 265 N.C. 431, 434, 144 S.E.2d 272 (1965)). Therefore, the findings of the Industrial Commission are conclusive on appeal when supported by competent evidence \u201c \u2018even though there be evidence that would support findings to the contrary.\u2019 \u201d Id. (quoting Jones v. Desk Co., 264 N.C. 401, 402, 141 S.E.2d 632, 633 (1965)).\nI.\nState Farm first argues that the Industrial Commission lacked jurisdiction to apply the Workers\u2019 Compensation Act to plaintiff\u2019s claim as plaintiff was not considered an employee under the insurance contract in question and was therefore not subject to the Act\u2019s provisions. State Farm claims there was no enforceable contract for insurance coverage of First Choice\u2019s officers because the policy inclusion was due to draftsman\u2019s error and mutual mistake on the part of defendants. State Farm seeks reformation of the insurance policy under which plaintiff claims coverage.\nThe North Carolina Supreme Court has determined that the Industrial Commission has jurisdiction \u201cto hear \u2018all questions arising under\u2019 the [Workers\u2019] Compensation Act. . . . This jurisdiction under the statute ordinarily includes the right and duty to hear and determine questions of fact and law respecting the existence of insurance coverage and liability of the insurance carrier.\u201d Greene v. Spivey, 236 N.C. 435, 445, 73 S.E.2d 488, 495-96 (1952).\nThe record shows that plaintiff worked for First Choice as an officer until his accident. The accident arose out of and occurred during the course of his employment with First Choice. Plaintiff is therefore considered an employee for the purpose of the Workers\u2019 Compensation Act, even if First Choice opted to exclude workers\u2019 compensation coverage for officers in its contract with State Farm. Since the Industrial Commission has \u201cexclusive original jurisdiction to hear . . . matters of compensation for personal injury,\u201d subject to review by our appellate Courts on matters of law, the Industrial Commission had jurisdiction to determine whether plaintiff was entitled to insurance coverage at the time of the accident. Cooke v. Gillis, 218 N.C. 726, 728, 12 S.E.2d 250, 251-52 (1940). The Industrial Commission did not exceed its jurisdiction in hearing plaintiffs claim.\nState Farm further argues that the policy\u2019s officer inclusion was a result of mutual mistake, and that State Farm is therefore entitled to reformation of the policy. A mutual mistake exists when both parties to a contract proceed \u201c \u2018under the same misconception respecting a material fact, the terms of the agreement, or the provisions of the written instrument designed to embody such agreement.\u2019 \u201d Sudds v. Gillian, 152 N.C. App. 659, 662, 568 S.E.2d 214, 217 (2002) (quoting Metropolitan Property and Cas. Ins. Co. v. Dillard, 126 N.C. App. 795, 798, 487 S.E.2d 157, 159 (1997)). A party seeking reformation must prove the existence of mutual mistake. Id. However, \u201c[a] unilateral mistake by a party to a contract, unaccompanied by fraud, imposition, undue influence, or like circumstances of oppression is insufficient to avoid a contract.\u201d Lowry v. Lowry, 99 N.C. App. 246, 252, 393 S.E.2d 141, 144 (1990).\nMrs. Smith testified that she requested officer inclusion upon renewal of First Choice\u2019s policy. Kepler stated that he did not recall talking with Mrs. Smith about including officer coverage, although he also admitted that the request may have been made. When asked if there \u201cwas a unilateral mistake by State Farm,\u201d Kepler admitted that he could not dispute that. Mrs. Smith, Cobb and Kepler all testified that at the time of plaintiff\u2019s accident, the policy included coverage for plaintiff as an officer of First Choice. Chesnet testified that officers were included due to a computer error during automatic renewal. State Farm argues that the computer error should be regarded as draftsman\u2019s error and should be considered as evidence that the parties were mutually mistaken in their beliefs about the change in the officers\u2019 inclusion within the insurance policy.\nOur case law supports the argument that \u201creformation on grounds of mutual mistake is available only where the evidence is clear, cogent and convincing.\u201d Light v. Equitable Life Assurance Society, 56 N.C. App. 26, 32-33, 286 S.E.2d 868, 872 (1982) (quoting Durham v. Creech, 32 N.C. App. 55, 59, 231 S.E.2d 163, 166 (1977)). Findings of fact by the Industrial Commission are binding on appeal if they are supported by competent evidence. Adams, 349 N.C. at 681, 509 S.E.2d at 414. Upon weighing all the facts presented, the Industrial Commission found that \u201c [defendants [did not meet] their burden in showing .. . mutual mistake.\u201d Since the Industrial Commission found that defendants did not show mutual mistake, and competent evidence exists to uphold such a finding, State Farm\u2019s claim for reformation of the contract fails. This argument is therefore overruled.\nII.\nState Farm also argues that this case should be remanded to the Industrial Commission due to insufficient findings of fact. State Farm argues that the Industrial Commission was required to make more detailed findings in consideration of State Farm\u2019s claim that the officer inclusion was a result of mutual mistake by both State Farm and First Choice. We disagree.\nWhen a party seeks to reform a contract due to an affirmative defense such as mutual mistake, misrepresentation or fraud, the burden of proof lies with the moving party. See Metropolitan Property & Cas. Ins. Co., 126 N.C. App. at 799, 487 S.E.2d at 160 (holding that the insurance company had the burden of proving misrepresentation in the enforcement of an insurance contract). The evidence presented to prove mutual mistake must be \u201cclear, cogent and convincing,\u201d and the question of reformation on that basis is a matter to be determined by the fact finder. Durham, 32 N.C. App. at 59, 231 S.E.2d at 166. The Industrial Commission is the ultimate fact finder. Fennell v. N.C. Dep\u2019t of Crime Control and Pub. Safety, 145 N.C. App. 584, 590, 551 S.E.2d 486, 490-91 (2001), cert. denied, 355 N.C. 285, 560 S.E.2d 800 (2002).\nState Farm argues that the Industrial Commission was required to make specific findings concerning the insurance application, the renewal audit reports and the witnesses\u2019 differing testimony before reaching a conclusion regarding mutual mistake and draftsman\u2019s mistake. The Industrial Commission found that State Farm failed to satisfy its burden of proof of mutual mistake. The Commission was not required to make further detailed findings of fact regarding every disputed issue. See Hansel v. Sherman Textiles, 304 N.C. 44, 54, 283 S.E.2d 101, 107 (1981) (denying compensation due to the failure of the claimant, who had the burden of proof, to prove any one of the elements of compensation). Our Court need only determine if competent evidence exists to support the Industrial Commission\u2019s findings, as remand is only necessary if \u201cthe findings of fact of the Commission are insufficient to enable the court to determine the rights of the parties upon the matters in controversy.\u201d Id. at 59, 283 S.E.2d at 109. This Court is not permitted to reevaluate evidence that may support a contrary conclusion and make a decision based on the weight of the evidence. Adams, 349 N.C. at 681, 509 S.E.2d at 414. We have already held that competent evidence existed to support the Industrial Commission\u2019s finding of fact that there was no mutual mistake between State Farm and First Choice. We hold that the Industrial Commission made findings on all ultimate facts in this case and that no additional findings of fact were required. This assignment of error is overruled.\nIII.\nState Farm argues that the Industrial Commission erred by denying State Farm a credit for salary paid to plaintiff by First Choice after plaintiff\u2019s injury. State Farm contends that it should be credited for payments made to plaintiff by First Choice after plaintiff\u2019s injury.\nN.C. Gen Stat. \u00a7 97-42 (2001) states:\nPayments made by the employer to the injured employee during the period of his disability, or to his dependents, which by the terms of this Article were not due and payable when made, may, subject to the approval of the Commission be deducted from the amount to be paid as compensation.\n\u201cPayments are due and payable under section 97-42 when the employer has accepted the plaintiff\u2019s injury as compensable and initiated payment of benefits.\u201d Thomas v. B.F. Goodrich, 144 N.C. App. 312, 318, 550 S.E.2d 193, 197, disc. review denied, 354 N.C. 228, 555 S.E.2d 276 (2001). When payments made by an employer are due and payable, the employer is not entitled to receive a credit for payments under the statute. Id. at 318-19, 550 S.E.2d at 197; see also Moretz v. Richards & Associates, 316 N.C. 539, 542, 342 S.E.2d 844, 846 (1986).\nThe evidence in the record shows that First Choice considered plaintiff\u2019s claim to be compensable and paid plaintiff one-third of his salary, the portion of salary that was not covered under the insurance policy, for four months following plaintiff\u2019s injury. First Choice stopped paying plaintiff because business declined in plaintiff\u2019s absence and First Choice could not afford to continue the payments. There is also evidence in the record that State Farm indicated to First Choice that State Farm considered plaintiffs claim to be compensable and instructed First Choice to file a workers\u2019 compensation claim. Since defendants accepted plaintiffs claim as compensable and First Choice initiated payment of partial benefits, the payments were considered due and payable under the statute. See Moretz, 316 N.C. at 541-42, 342 S.E.2d at 846. Accordingly, State Farm is not entitled to a credit under the statute.\nAdditionally, there is no evidence in the record that State Farm made any payment of benefits to plaintiff following his injury. N.C.G.S. \u00a7 97-42 allows the employer to receive credit when the employer makes payment of benefits, the purpose of which is \u201cto encourage voluntary payments by the employer during the time of the worker\u2019s disability.\u201d Effingham v. Kroger Co., 149 N.C. App. 105, 119, 561 S.E.2d 287, 296-97 (2002). However, the statute does not provide for the insurance carrier to receive a credit for payments made by the employer. State Farm has failed to point us to any authority that would support such an interpretation of the statute. This assignment of error is without merit.\nWe have reviewed defendant\u2019s remaining assignments of error and find them to be without merit.\nAffirmed.\nJudges HUDSON and STEELMAN concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "John J. Korzen and Ling & Farr an, by Jeffrey P. Farr an, for plaintiff-appellee.", "Brooks, Stevens & Pope, P.A., by Michael C. Sigmon and Matthew P. Blake, for defendants-appellants." ], "corrections": "", "head_matter": "HAROLD E. SMITH, Employee, Plaintiff-Appellee v. FIRST CHOICE SERVICES, Employer, and STATE FARM INSURANCE COMPANY, Carrier, Defendants-Appellants\nNo. COA02-814\n(Filed 3 June 2003)\n1. Workers\u2019 Compensation\u2014 jurisdiction \u2014 insurance coverage \u2014 officer exclusion \u2014 mutual mistake\nThe Industrial Commission did not lack jurisdiction to apply the Workers\u2019 Compensation Act to plaintiff\u2019s claim even though defendant insurance carrier contends plaintiff was not considered an employee under the pertinent insurance contract based on an alleged officer exclusion, and no reformation of the pertinent contract is required because: (1) plaintiff worked for defendant employer as an officer until his accident, the accident arose out of and occurred during the course of his employment with his employer, and thus plaintiff is considered an employee for the purpose of the Workers\u2019 Compensation Act even if his employer opted to exclude workers\u2019 compensation coverage for officers in its contract with defendant insurance carrier; and (2) defendant did not meet its burden of showing mutual mistake.\n2. Workers\u2019 Compensation\u2014 detailed findings of fact\u2014 mutual mistake\nThe Industrial Commission did not err in a workers\u2019 compensation case by failing to make more detailed findings concerning the insurance application, the renewal audit reports, and the witnesses\u2019 differing testimony before reaching a conclusion regarding mutual mistake and draftsman\u2019s mistake, because: (1) the Court of Appeals already concluded that competent evidence existed to support the Industrial Commission\u2019s finding of fact that there was no mutual mistake between defendant insurance carrier and defendant employer; and (2) the Industrial Commission made findings on all ultimate facts in this case and no additional findings of fact were required.\n3. Workers\u2019 Compensation\u2014 credit for salary \u2014 available to employer and not to insurance carrier\nThe Industrial Commission did not err in a workers\u2019 compensation case by denying defendant insurance carrier a credit for salary paid to plaintiff by defendant employer after plaintiff\u2019s injury, because: (1) the payments were considered due and payable under N.C.G.S. \u00a7 97-42 since defendants accepted plaintiffs claim as compensable and defendant employer initiated payment of partial benefits, and the employer is not entitled to receive a credit for payments that are due and payable; and (2) there is no evidence that defendant insurance carrier made any payment of benefits to plaintiff following his injury, and N.C.G.S. \u00a7 97-42 does not provide for the insurance carrier to receive a credit for payments made by the employer.\nAppeal by defendants from opinion and award entered 6 March 2002 by the North Carolina Industrial Commission. Heard in the North Carolina Court of Appeals 20 February 2003.\nJohn J. Korzen and Ling & Farr an, by Jeffrey P. Farr an, for plaintiff-appellee.\nBrooks, Stevens & Pope, P.A., by Michael C. Sigmon and Matthew P. Blake, for defendants-appellants." }, "file_name": "0244-01", "first_page_order": 274, "last_page_order": 282 }