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NO. COA04-1259
NORTH CAROLINA
COURT OF APPEALS
Filed: 5 July 2005
CAROLINE D’AQUISTO,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 147253
MISSION ST. JOSEPH’S HEALTH SYSTEM,
Employer,
CAMBRIDGE INTEGRATED SERVICES,
Servicing
Agent,
Defendants.
Appeal by Defendants from Opinion
and Award entered 20 May 2004 by the North Carolina Industrial Commission. Heard in the Court of Appeals 6 June 2005.
Ganly & Ramer, P.L.L.C., by
Thomas F. Ramer, for plaintiff-appellee.
Van Winkle, Buck, Wall, Starnes
& Davis, P.A., by Allan R. Tarleton, for defendants-appellants.
WYNN, Judge.
Under the Workers’ Compensation Act,
an injury is only compensable if it is the result of an “accident arising out
of and in the course of the employment[.]”
N.C. Gen. Stat. §97-2(6) (2004).
In this case, the employer acknowledges that an assault upon
Plaintiff-employee occurred “in the course of” her employment but argues that
it did not “arise out of” her employment.
For the reasons given in Wake County Hosp. Sys., Inc. v. Safety Nat’l
Cas. Corp., 127 N.C. App. 33, 487 S.E.2d 789, disc. review denied,
347 N.C. 410, 494 S.E.2d 600 (1997), we hold that the full Commission
properly concluded that the assault “arose out of” Plaintiff’s employment.
We further uphold the full Commission’s Opinion and Award on the remaining
issues presented on appeal.
The record on appeal shows that on
30 April 2001, Plaintiff Caroline D’Aquisto, a cancer analyst at Defendant
Mission St. Joseph’s Health System (“Mission Health System”), arrived at her
office at approximately 6:00 a.m. At
approximately 7:15 a.m. Ms. D’Aquisto left her office on the first floor to go
to the morgue on the second floor. She
carried paperwork needed to confirm the causes of death of individuals who had
died the previous week.
While Ms. D’Aquisto waited in front
of the first floor main staff elevators, a man wearing green scrubs approached
her. After exchanging a few words, the
man walked up to her and said, “Selene . . . We’re going to finish it.” Ms. D’Aquisto testified that he grabbed her
breasts and nipples, turned them, and brought her to her knees. Ms. D’Aquisto broke away and ran into the
stairwell. But the man pursued her,
grabbed her from behind, grabbed her
hair and her groin area, and pulled her down the steps. Ultimately, Ms. D’Aquisto broke free, ran up
the steps to the second floor, opened the door, and fell into the arms of a
co-worker, A.J. Ward.
Mr. Ward, a twenty-one year employee
at Mission Health System, corroborated Ms. D’Aquisto’s testimony, stating that
she came out of the stairwell with a man behind her “[a]nd it seemed like he
was over the top of her trying to -- trying to grab her again[.]” Ms. D’Aquisto fell into his arms and said
“A.J., I don’t know the man.” The man
ran away.
After the incident, Ms. D’Aquisto
returned to her office and provided an account of the assault to security
personnel. Ms. D’Aquisto then filled
out a security incident report. Later
that morning, Ms. D’Aquisto reported the incident to the Asheville Police
Department.
The next day, Ms. D’Aquisto met with
Linda Anderson, director of post-op surgical services, and Jerri Mitchell,
director of endoscopy. Ms. Anderson
testified that Ms. D’Aquisto was very upset, had several torn fingernails,
scrapes on her shins, and a “hand print” bruise on a breast. Ms. Mitchell testified that she observed
“some bruises on her chest and on her breasts and they were pretty impressive.”
After the incident, Mission Health
System sent out an e-mail alerting employees that an employee had been
“inappropriately touched.” The employee
newspaper later described it as a more violent attack.
On 21 May 2001, Mission Health
System security notified Ms. D’Aquisto that the alleged attacker had been
spotted on the hospital premises and she and Mr. Ward were asked to identify
him. Mr. Ward positively identified the
man, who was later determined to be Charles Greene, a sitter[Note 1] for
Diversified Personnel. Mr. Greene was
later charged with assault and found not guilty.
On 25 May 2001, Karen Blicher,
Director of Mental Health Education at Mountain Area Health Education Center
specializing in women’s psychological issues including sexual assault,
evaluated Ms. D’Aquisto. Ms. Blicher
testified that “by the end of that first interview it was very clear to me that
she was experiencing posttraumatic stress disorder of the acute kind.” On 29 May 2001, Ms. Blicher recommended that
Ms. D’Aquisto take a week off of work.
On 31 May 2001, Dr. Steven
Mendelsohn, a board-certified internist and rheumatologist, evaluated Ms.
D’Aquisto. He found:
That her neck was
very stiff compared to before [the assault].
She had a lot of muscle spasms around the neck, extending across the
shoulders and into the back. She had a
slight loss of movement in both shoulders.
And her upper and lower back were quite sore. She had diffuse old bruises in her chest wall, and her lower back
was quite tender.
Dr. Mendelsohn
prescribed an anti-depressant, anti-inflammatories, pain medication, and
sleeping pills. On 13 June 2001, Dr.
Mendelsohn gave Ms. D’Aquisto a written note taking her out of work for a
month.
On 4 June 2001, Dr. Karen Dedman, a
family-practice physician, examined Ms. D’Aquisto who reported that she “was
having vomiting, was terrified, not sleeping, roaring in her ears, coughing to
the point of vomiting.” Dr. Dedman
observed fading bruises on her breast, upper abdomen, and in her left
groin. Dr. Dedman diagnosed Ms.
D’Aquisto with “severe acute stress reaction” and felt she was unable to work. Dr. Dedman testified that as a result of the
assault Ms. D’Aquisto “had a severe stress reaction psychologically[,] . . . an
exacerbation of her underlying left neck pain with underlying degenerative disk
disease[,]” psoriasis, psoriatic arthritis, sleep disorder, and panic attacks.
In September 2001, Ms. D’Aquisto
began seeing Dr. William Anixter, a psychiatrist. After the initial visits, Dr. Anixter diagnosed Ms. D’Aquisto
with posttraumatic stress disorder, chronic type. Upon continued treatment, Dr. Anixter also diagnosed Ms.
D’Aquisto with depression which was caused by many events, which included the
assault, criminal trial, her sister’s death, and her husband’s
disappearance. Dr. Anixter testified
that Ms. D’Aquisto was unable to work and prescribed for her various anti-depressants
and anti-anxiety medication.
Dr. Claudia Coleman, a psychologist,
examined Ms. D’Aquisto at the request of Mission Health System’s counsel. Dr. Coleman performed two tests on Ms.
D’Aquisto and examined her history, but did not have any notes from Dr. Anixter
at the time she made her report nor did she have an accurate history of Ms.
D’Aquisto’s past treatment for depression.
At the time of the examination, Ms. D’Aquisto was taking a variety of
medications. Dr. Coleman was unable to
give an opinion to any degree of medical certainty about the origin of Ms.
D’Aquisto’s panic attacks. Dr. Coleman
opined that Ms. D’Aquisto did not have posttraumatic stress disorder, but
“anxiety disorder, not otherwise specified, in partial remission with dependent
personality traits.”
This case came for hearing before
Deputy Commissioner Edward Garner, Jr. who awarded Ms. D’Aquisto ongoing total
disability compensation, medical and psychological expenses, and ordered
Mission Health System to pay costs and attorney’s fees. On 20 May 2004, the full Commission filed an
Opinion and Award affirming the prior award.
Defendants -- Mission Health System and its insurance carrier servicing
agent, Cambridge Integrated Services, Inc. -- appealed.
_____________________________________________
On appeal [Note 2], Defendants
argue that the full Commission erred by (1) concluding that Ms. D’Aquisto’s
assault arose out of her employment; (2) disregarding competent evidence; (3)
making findings of fact unsupported by competent evidence; and (4) imposing
sanctions against Defendants.
Defendants also argue that the Industrial Commission’s rules and
standards of assessing evidence deprived Defendants of due process. We disagree.
First, Defendants argue that the
full Commission erred in concluding that Ms. D’Aquisto’s assault arose out of
her employment.
Under the Workers’ Compensation Act,
an injury is compensable only if it is the result of an “accident arising out
of and in the course of the employment[.]”
N.C. Gen. Stat. §97-2(6) (2004).
“Whether an injury arose out of and in the course of employment is a
mixed question of law and fact, and the Industrial Commission’s findings in
this regard are conclusive on appeal if supported by competent evidence.” Culpepper v. Fairfield Sapphire Valley,
93 N.C. App. 242, 247, 377 S.E.2d 777, 780, aff’d, 325 N.C. 702, 386
S.E.2d 174 (1989) (citing Gallimore v. Marilyn’s Shoes, 292 N.C. 399,
402, 233 S.E.2d 529, 531 (1977)). The
employee must establish both the “arising out of” and “in the course of”
requirements to be entitled to compensation.
Roberts v. Burlington Indus., Inc., 321 N.C. 350, 354, 364 S.E.2d
417, 420 (1988). Defendants conceded at
the hearing that the assault occurred “in the course of” Ms. D’Aquisto’s
employment, but contend that it did not
“arise out of” her employment.
The words “arising out of the
employment” refer to the origin or cause of the accidental injury. Roberts, 321 N.C. at 354, 364 S.E.2d
at 420. Thus, our first inquiry “is
whether the employment was a contributing cause of the injury.” Id. at 355, 364 S.E.2d at 421.
The record on appeal shows that as a
part of her regular job duties Ms. D’Aquisto had to leave her office and walk
to the morgue, which was located on another floor. Therefore, her reason for walking to the morgue that day was for
the purpose of performing her job. See
Culpepper, 93 N.C. App. at 248-49, 377 S.E.2d at 781 (the plaintiff was
sexually assaulted after she stopped to help a guest with car trouble because
she had been directed to always be helpful to guests; since her decision to
stop had its origin in her employment the injuries arose out of her
employment). This evidence supports the
full Commission’s determination that Ms. D’Aquisto’s employment was a
contributing cause of the injury.
“Second, a contributing proximate
cause of the injury must be a risk inherent or incidental to the
employment, and must be one to which the employee would not have been equally
exposed apart from the employment.” Id.
at 248, 377 S.E.2d at 781 (citing Gallimore, 292 N.C. at 404, 233 S.E.2d
at 533). Under this “increased risk”
analysis, the “causative danger must be peculiar to the work and not common to
the neighborhood.” Gallimore, 292 N.C. at 404, 233 S.E.2d at 533
(citation omitted).
The full Commission relied on Wake
County Hosp. Sys., Inc., 127 N.C. App. 33, 487 S.E.2d 789, in concluding
that Ms. D’Aquisto’s injuries arose out of her employment. In Wake County, the employee was
“abducted from the employee parking lot, she was assaulted and killed on an
adjacent street, she was carrying work materials, and the assailant was a
co-employee.” Id. at 39, 487
S.E.2d at 792. This Court held that,
following the reasoning in Culpepper, the facts were sufficient to show
a causal relationship between the employee’s employment and her death. Id. at 39-40, 487 S.E.2d at 792; see
also Culpepper, 93 N.C. App. at 249-50, 377 S.E.2d at 782 (the plaintiff’s
injuries arose out of her employment because the nature of the plaintiff’s
employment as a cocktail waitress placed her at an increased risk of sexual
assault not shared by the general public); Pittman v. Twin City Laundry
& Cleaners, 61 N.C. App. 468, 473, 300 S.E.2d 899, 902 (1983)
(employee’s death arose out of his employment where he was working at the time
of the shooting, the shooting occurred on the employer’s premises, and the
shooting was caused by an argument between two co-employees); but see
Gallimore, 292 N.C. at 404-05, 233 S.E.2d at 533 (employee’s assault and
death did not arise out of her employment where employee had completed work at
a store in a mall, was not carrying any work materials, and was assaulted in
the mall parking lot).
The full Commission found that Ms.
D’Aquisto was at an “increased risk” for an assault not because of the nature
of her job, but because her job duties required her to walk to areas of the
hospital where there were “few, if any, people in her vicinity.” Nonetheless, Defendants argue that no
competent evidence supported the full Commission’s finding of fact number
twenty-six that Ms. D’Aquisto’s work takes her to areas of the hospital where
there are few people. Finding of fact twenty-six states:
26. Regardless of whether or not Mr. Greene was plaintiff’s assailant, the Full Commission finds that a man wearing scrubs at Mission had the appearance of a legitimate business purpose in being there. Although the majority of plaintiff’s work did occur at her desk, her job duties required her to carry business records to the morgue on a regular basis, causing her to be present in areas of the hospital with few, if any, people in her vicinity. Thus, the Full Commission finds that plaintiff was as an increased risk of being exposed to an assailant not by virtue of her job as a cancer analyst, but rather because of where her job duties took her -- the morgue and other such places with few, if any, people in her vicinity.
We, however,
find that the record on appeal shows competent evidence to support the finding
that Ms. D’Aquisto’s job duties took her out of her office to other areas of
the hospital. Indeed, Ms. D’Aquisto
testified that a part of her normal job duties required her to go to the morgue
every Monday to verify causes of death.
Her office was on the first floor and the morgue is on the second floor,
causing her to have to either use a stairwell or wait for an elevator. The record shows that Ms. D’Aquisto was
assaulted in front of the staff elevators on the first floor, with no person
visible to Ms. D’Aquisto but the man who assaulted her. The staff elevators are at least “[a]
football field” away from the main hospital lobby and behind the patient
elevators. At approximately 7:15 a.m.
when Ms. D’Aquisto was waiting for the elevators the lights were still dim at
the lobby entrance. On the morning Ms.
D’Aquisto was assaulted, Mr. Ward testified that, “At that time, it wasn’t too
busy that morning[.]”
As Plaintiff “is entitled to the
benefit of every reasonable inference to be drawn from the evidence[,]” Deese, 352 N.C. at 115, 530 S.E.2d at
553, this evidence supports the full Commission’s finding that on the morning
of 30 April 2001, Ms. D’Aquisto’s job duties took her to an area of the
hospital where there were few other people around. Moreover, the record shows competent evidence to support finding
that Ms. D’Aquisto was at an “increased risk,” assaulted inside the hospital,
carrying business records at the time, and by a man wearing scrubs who appeared
to have legitimate business at the hospital.
Accordingly, we hold that the full Commission properly concluded that
the assault “arose out of” her employment.
See Wake County Hosp. Sys., Inc., 127 N.C. App. at 39, 487 S.E.2d
at 792.
Second, Defendants argue that the full
Commission erred in impermissibly disregarding competent evidence as to whether
the assault on Ms. D’Aquisto actually occurred and as to Ms. D’Aquisto’s
credibility and demeanor. Determining
credibility of witnesses is the responsibility of the full Commission, not this
Court. Adams, 349 N.C. at 681,
509 S.E.2d at 413. This Court does not
re-weigh the evidence. Id., 509
S.E.2d at 414. Furthermore, “the
Commission does not have to explain its findings of fact by attempting to
distinguish which evidence or witnesses it finds credible.” Deese, 352 N.C. at 116, 530 S.E.2d at
553. Thus, we hold that this argument
is without merit.
Third, Defendants argue that a
portion of finding of fact number forty-five mischaracterizes Dr. Coleman’s
testimony and is not supported by competent evidence. Finding of fact forty-five, in pertinent part, states:
45. … However, when presented with the actual findings of fact, including the eyewitness testimony of A.J. Ward, Dr. Coleman admitted that the attack could not have been a dissociative episode.
Dr. Coleman
testified as follows:
Q: My question is, if that’s true -- if,
for example, A. J. Ward, who’s an employee, says they fell out into my arms and
the guy ran away and he was reaching toward her breasts, that’s not a
dissociative episode, that’s a physical act, isn’t it?
A: Your description of it is a physical
act. That’s absolutely true.
Q: And if that were true, if a judge has
said that is what happened, that would not be a dissociative episode.
A: That part of it, no.
***
Q: . . . But if those are the facts as
testified by Ms. D’Aquisto and Mr. A. J. Ward, who now you’ve got a third
person who was either engaged in a dissociative episode with her --
A: No.
You have someone that saw part of her story.
Mr. Ward
testified that Ms. D’Aquisto came out of the stairwell with a man behind her
“[a]nd it seemed like he was over the top of her trying to -- trying to grab
her again[.]” Ms. D’Aquisto fell into
his arms and the man ran away. Dr.
Coleman testified that since there was an eyewitness, at least the portion of
the assault -- Ms. D’Aquisto coming out of a stairwell with a man trying to
grab her from behind -- could not have been a dissociative episode.
We hold that the full Commission did
not mischaracterize Dr. Coleman’s testimony.
Although the full Commission afforded less weight to Dr. Coleman’s
testimony, determining credibility of witnesses is the responsibility of the
full Commission, not this Court. Adams,
349 N.C. at 681, 509 S.E.2d at 413.
Next, Defendants argue that the
findings of facts concerning its investigation and defense are not supported by
competent evidence and that the full Commission erred by imposing sanctions
against Defendants under section 97-88.1 of the North Carolina General
Statutes.[Note 3] We disagree.
The Industrial Commission may assess
costs and attorney’s fees if it determines that “any hearing has been brought,
prosecuted, or defended without reasonable ground[.]” N.C. Gen. Stat. §97-88.1 (2004).
“The decision of whether to make such an award, and the amount of the
award, is in the discretion of the Commission, and its award or denial of an award
will not be disturbed absent an abuse of discretion.” Troutman v. White & Simpson, Inc., 121 N.C. App. 48,
54-55, 464 S.E.2d 481, 486 (1995), disc. review denied, 343 N.C. 516,
472 S.E.2d 26 (1996). An abuse of
discretion results only where a decision is “‘manifestly unsupported by reason
or is so arbitrary that it could not have been the result of a reasoned
decision.’” Long v. Harris, 137
N.C. App. 461, 465, 528 S.E.2d 633, 635 (2000) (quoting State v. Hennis,
323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)). “In determining whether a hearing has been defended without
reasonable ground, the Commission (and a reviewing court) must look to the
evidence introduced at the hearing. ‘The test is not whether the defense
prevails, but whether it is based in reason rather than in stubborn, unfounded
litigiousness.’” Cooke v. P.H.
Glatfelter/Ecusta, 130 N.C. App. 220, 225, 502 S.E.2d 419, 422-23 (1998)
(quoting Sparks v. Mountain Breeze Rest., 55 N.C. App. 663, 665, 286
S.E.2d 575, 576 (1982)). Defendants argue
that they had reasonable ground to defend themselves as there were “doubts
about the relationship between Plaintiff’s injuries and her story of an assault
on April 30 (sic) . . ..” (Def. Br.
33).
Defendants contest the following
findings of fact related to the award of costs and attorney’s fees:
46. Defendants
presented no witnesses at hearing before the Deputy Commissioner, and offered
only one exhibit (plaintiff’s job evaluation) in the three days of
hearings. All of the witnesses offered
by plaintiff, and their statements, were readily available to defendants to
consider in their investigation and subsequent denial of this matter. Most of the 21 documentary exhibits entered
into evidence by plaintiff were readily available to defendants for investigation,
if one had been properly undertaken.
When asked by the Deputy Commissioner why he was defending this case,
counsel replied, “We don’t know what happened.”
47. Defendants
possessed documents that confirmed plaintiff accounts of the attack, which they
refused to make available to the plaintiff.
She was required to file a Motion to Compel to obtain such documents.
***
49. As
a result of defendants’ failure to perform a reasonable investigation of this
matter, and based upon defendants’ refusal to admit plaintiff was even
assaulted, despite eyewitness testimony, plaintiff was required to prosecute a
three day hearing, presenting at least ten witnesses and twenty-one
exhibits. Thus, the Full Commission finds
defendants’ defense of this matter was based on stubborn, unfounded
litigiousness.
50. As a result of defendants unreasonable and unjustified defense of his (sic) matter, and their pattern and practice of unreasonable defense and bad faith, the Full Commission finds that an award of twenty-five percent (25%) of the total indemnity benefits recovered is reasonable.
The record indicates that Defendants
presented no witnesses at the hearing before the Deputy Commissioner. But the record does show that Defendants
issued a subpoena for Mr. Greene and had it delivered to the sheriff. The transcripts from Mr. Greene’s criminal
trials were entered into the record.
The record shows that the Deputy Commissioner admitted seven exhibits
offered by Defendants, not one as finding of fact number forty-six
indicates. Also Defendants’ counsel did
state that Defendants did not know what happened as they questioned Ms.
D’Aquisto’s credibility. Despite the
mistake regarding the number of exhibits submitted by Defendants, there is
competent evidence to support the remainder of finding of fact forty-six.
The record shows that there is
competent evidence to support finding of fact forty-seven. On 14 October 2002, the Deputy Commissioner
filed an Order for Production of Documents.
The order stated that it “now appear[ed] defendants [had] failed to
comply with the standing bench order to produce the Risk Management records and
file[.]” There is also evidence in the
record to support the finding that Defendants failed to perform a reasonable
investigation causing the hearing to last three-days and depose six other
witnesses. At the hearing, the Deputy
Commissioner stated that:
MR. TARLETON:
I’ve been practicing before [the Industrial Commission] for twenty years and
I’ve never had [a motion for discovery] allowed.
THE COURT: Have
you ever asked me?
MR. TARLETON:
No, sir, I have not.
***
THE COURT: . .
. Mr. Ramer [Plaintiff’s counsel] had
to file Motions with me just for me to order you to turn over some
documents. Then I had come up (sic) and
do an in-camera inspection of things that didn’t make any difference
anyway. Then you attacked the
Constitution of the United States on the due-process clause.
MR. TARLETON:
Well, I certainly am not attacking the Constitution of the United States. I am invoking the Constitution of the United
States.
THE COURT: I’ll
use the word “invoking” the Constitution of the United States. Then you say here today almost, “We don’t
think we should turn over things because is (sic) no discovery.” And we’ve been discovering in -- in workers’
comp cases the history of the Industrial Commission. People do that all the time.
MR. TARLETON:
You’ve -- you’ve experienced a different history than I have. I can tell you that.
THE COURT: You
don’t do any discovery in your workers’ comp case?
MR. TARLETON: I
do my best and -- and I’ve given up trying to ask for leave to depose a
plaintiff. I’ll never get that. I can assure you of that....
This exchange
indicates that Defendants’ counsel inhibited discovery and failed properly to
investigate by not even making a motion for discovery, due to his anticipation
of its being denied. Therefore, there
is competent evidence to support findings of fact forty-nine and fifty. As there was competent evidence to support
the findings of fact, the full Commission did not abuse its discretion in
awarding costs and attorney’s fees, as the findings were not manifestly
unsupported by reason. Troutman,
121 N.C. App. at 54-55, 464 S.E.2d at 486.
Next, Defendants argue that the full
Commission impermissibly placed on them the burden to prove that Ms. D’Aquisto
had not been assaulted. The plaintiff
has the burden of proving that the claim is compensable, which includes proving
that the accident occurred. Henry v.
A. C. Lawrence Leather Co., 231 N.C. 477, 479, 57 S.E.2d 760, 761
(1950). Defendants reference multiple
pages in the hearing transcript before the Deputy Commissioner for support of
their contention, however, they fail to cite any part of the full Commission’s
Opinion and Award that demonstrates the full Commission impermissibly shifted
the burden of proof. We have carefully
reviewed the entire record and find nothing to indicate that either the Deputy
Commissioner or the full Commission improperly placed a burden of proof on
Defendants. In fact when discussing
Defendants’ theory that no assault actually occurred, Defendant’s counsel
stated, “I don’t believe I have the burden to prove that scenario.” The Deputy Commissioner responded, “I
agree.” The Deputy Commissioner
understood that Ms. D’Aquisto had the burden to prove all elements of
compensability. We find no error.
Next, Defendants contend that the
full Commission applied the incorrect standard of proof by using the appellate
review standard of “any competent evidence.”
Defendants argue that this is evident in the full Commission accepting
evidence favorable to Ms. D’Aquisto and discounting evidence in favor of
them. This is not a standard of proof,
but a credibility determination which is solely the responsibility of the full
Commission. Adams, 349 N.C. at
681, 509 S.E.2d at 413. Furthermore,
“the Commission does not have to explain its findings of fact by attempting to
distinguish which evidence or witnesses it finds credible.” Deese, 352 N.C. at 116, 530 S.E.2d at
553. We find this argument to be
without merit.
Next, Defendants argue that the full
Commission’s adoption of portions of Ms. D’Aquisto’s proposed opinion and award
is a failure to properly weigh the evidence.
Since Defendants failed to cite any authority to support this argument,
it is deemed abandoned. N.C. R. App. P.
28(b)(6).
Finally, Defendants contend that
Rule 601 of the Workers’ Compensation Rules impermissibly shifts the burden of
proof and denied them due process. We
disagree.
Rule 601 of the Workers’ Compensation
Rules provides in pertinent part:
The detailed
statement of the basis of denial shall set forth a statement of the facts, as
alleged by the employer, concerning the injury or any other matter in dispute;
a statement identifying the source, by name or date and type of document, of
the facts alleged by the employer; and a statement explaining why the facts, as
alleged by the employer, do not entitle the employee to workers’ compensation
benefits.
Defendants
argue that “Rule 601’s requirement of an employer to come forward with any
evidence to rebut a plaintiff’s claim effectively shifts the burden of proof to
the employer at the outset of a claim and deprives the employer of procedural
due process.” (Def. Br. 30).
The General Assembly has specifically
vested the North Carolina Industrial Commission with the ability to make rules
governing Workers’ Compensation cases.
N.C. Gen. Stat. §97-80 (2004) (“The Commission may make rules, not
inconsistent with this Article, for carrying out the provisions of this
Article.”). Furthermore,
[t]he North
Carolina Industrial Commission has the power not only to make rules governing
its administration of the act, but also to construe and apply such rules. Its construction and application of its
rules, duly made and promulgated, in proceedings pending before the said
Commission, ordinarily are final and conclusive and not subject to review by
the courts of this State, on an appeal from an award made by said Industrial
Commission.
Winslow v.
Carolina Conference Ass’n of Seventh Day Adventists, 211 N.C. 571,
579-80, 191 S.E. 403, 408 (1937). Rule
601 was duly made and promulgated and therefore is presumed valid. Defendants make no specific arguments as to
how Rule 601 denies them procedural due process nor do they cite any
authority. We find this argument to be
without merit, as Rule 601 was properly enacted.
Accordingly, we find no error by the
full Commission and affirm the Opinion and Award.
Affirmed.
Chief Judge MARTIN and Judge MCGEE
concur.
1. A sitter is privately hired by the
patient and/or patient’s family to sit in the hospital room with the
patient. The family hired Mr. Greene
through Diversified Personnel. Mr.
Greene was not an employee of Mission Health System.
2. The standard of review for this Court
in reviewing an appeal from the full Commission is limited to determining
“whether any competent evidence supports the Commission’s findings of fact and
whether the findings of fact support the Commission’s conclusions of law.” Deese
v. Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553
(2000). Our review “‘goes no further
than to determine whether the record contains any evidence tending to support
the finding.’” Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411,
414 (1998) (citation omitted). The full Commission’s findings of fact “are
conclusive on appeal when supported by competent evidence,” even if there is
evidence to support a contrary finding, Morrison v. Burlington Indus.,
304 N.C. 1, 6, 282 S.E.2d 458, 463 (1981), and may be set aside on appeal only
“when there is a complete lack of competent evidence to support them[.]”
Young v. Hickory Bus. Furniture, 353 N.C. 227, 230, 538 S.E.2d 912, 914
(2000). It is not the job of this Court
to re-weigh the evidence. Adams,
349 N.C. at 681, 509 S.E.2d at 414.
Further, all evidence must be taken in the light most favorable to the
plaintiff, and the plaintiff “is entitled to the benefit of every reasonable
inference to be drawn from the evidence.”
Deese, 352 N.C. at 115, 530 S.E.2d at 553.
3. We note that Plaintiff-Appellee’s brief
exceeded the page limitations for briefs filed in the North Carolina Court of
Appeals. N.C. R. App. P. 28(j)
(thirty-five page limit). Therefore, we
do not consider that portion of the brief which exceeds the page
limitation.