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Phillips v. Hertz Corp.10/18/2005
a conclusion that Phillips was not totally disabled. Nor do they resolve whether Phillips might have been partially disabled. The findings do no more than assert that Phillips failed to engage in an active job search. In Peoples, our Supreme Court held that the failure to conduct a job search is not sufficient, without more, to establish a lack of disability: "In order to prove disability, the employee need not prove he unsuccessfully sought employment if the employee proves he is unable to obtain employment." Peoples, 316 N.C. at 444, 342 S.E.2d at 809. Instead, when "an employee's effort to obtain employment would be futile because of age, inexperience, lack of education or other pre-existing factors, the employee should not be precluded from compensation for failing to engage in the meaningless exercise of seeking a job which does not exist." Id. The Full Commission's opinion and award contains no findings of fact relating to the issue of futility even though Phillips offeredevidence relating to the futility of a job search prior to his knee replacement surgery.
The Supreme Court stressed in Johnson the need for specific findings of fact on the dispositive issues: "While the Commission is not required to make findings as to each fact presented by the evidence, it must find those crucial and specific facts upon which the right to compensation depends so that a reviewing court can determine on appeal whether an adequate basis exists for the Commission's award." Johnson, 358 N.C. at 705, 599 S.E.2d at 511. When the Commission fails to do so, we must "remand to the Commission for the purpose of making adequate findings of fact." Id. at 708, 599 S.E.2d at 513. Accordingly, because the Commission has failed to make the necessary findings of fact regarding the extent of Phillips' disability from 8 June 2000 through the date of the hearing before the Deputy Commissioner, we must remand for further findings of fact both as to the period from 8 June 2000 through 12 September 2001 and the period following the termination of Phillips' employment on 12 September 2001.
III.
Finally, defendants assign error to the Full Commission's failure to address defendants' exceptions to the Deputy Commissioner's 13 December 2002 and 13 January 2003 orders assessing defendants a 10% penalty and awarding Phillips' attorneys' fees. We hold that defendants did not properly appeal those orders to the Full Commission and, therefore, decline to address this assignment of error. Following each of the Deputy Commissioner's orders, defendants filed a "Notice of Exception" with the Industrial Commission. Upon receipt, the Commission, in a letter to the parties from the Docket Director, stated that the "Exception has been noted for the record." Once the Deputy Commissioner entered her opinion and award denying Phillips disability compensation, Phillips filed a notice of appeal and a Form 44 application for review. Defendants, however, did not file a notice of appeal from the Deputy Commissioner's orders or file their own Form 44 application for review regarding the sanctions and attorneys' fees.
N.C. Gen. Stat. ยง 97-85 (2003) provides for review by the Full Commission " f application is made to the Commission within 15 days from the date when notice of the award shall have been given." Defendants' "Notice of Exception" filed prior to the opinion and award is not a substitute for a notice of appeal to the Full Commission. An exception is simply a formal objection; it is not an appeal. See N.C.R. Civ. P. 46 (discussing objections and exceptions); Wilson v. Utah Constr. Co.,243 N.C. 96, 98, 89 S.E.2d 864, 866 (1955) (distinguishing between a notice of appeal and a bill of exceptions).
Defendant
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