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are subject to modification and technical correction prior to official
publication in the North Carolina Reports and North Carolina Court of Appeals
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authoritative.
NO. COA05-401
NORTH CAROLINA COURT OF APPEALS
Filed: 17 January
2006
ALFRED R. FERREYRA,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 217576
CUMBERLAND COUNTY,
Employer,
SELF-INSURED,
KEY RISK MANAGEMENT
SERVICES, INC.,
Servicing
Agent,
Defendants.
Appeal by defendants from opinion and award entered 13 January
2005 by the North Carolina Industrial Commission. Heard in the Court of Appeals 17 November 2005.
MacRae,
Perry, & MacRae, L.L.P., by Daniel T. Perry, III, for plaintiff-appellee.
Teague,
Campbell, Dennis & Gorham, by Dayle A. Flammia and Courtney L. Coates for
defendant-appellants.
HUDSON, Judge.
Plaintiff Alfred R. Ferreyra, an employee of defendant
Cumberland County (“the county”), claimed an injury by accident after he
suffered a burst aneurysm at work on 26 February 2002. Following a hearing on 28 May 2003, Deputy
Commissioner George T. Glenn, II, issued an opinion and award on 30 January
2004, concluding that plaintiff had sustained a compensable injury by accident
at work and awarding benefits. Defendant
appealed, and on 13 January 2005, the Full Commission issued an opinion and
award affirming the Deputy Commissioner’s opinion and award with minor
modifications. Defendants appeal. As discussed below, we affirm.
At the relevant time, plaintiff was employed as a deputy
sheriff. On 26 February 2002, plaintiff
was on routine patrol with a trainee, when a young woman sought help for her
mother (“the victim”). The victim had
stopped breathing while in her daughter’s car.
Plaintiff was certified in cardiopulmonary resuscitation (“CPR”) and as
a First Responder, but had never had occasion to use CPR during his eight years
as a deputy sheriff. Plaintiff
performed chest compressions on the victim in the front seat of the car, while
the trainee began rescue breathing.
After performing twenty-one sets of five chest compressions, plaintiff
felt a sharp pain in his head, and another deputy took over performing the
CPR. Plaintiff was unable to complete
his shift due to his severe headache and went home. After over-the-counter medications and rest did not alleviate his
pain, plaintiff went to the hospital where he was diagnosed as suffering from a
brain aneurysm. Dr. Bruce P. Jaufmann
treated plaintiff and performed surgery on him on 1 March 2002.
Dr. Jaufmann testified that:
It is my opinion that most likely the stress and excitement while performing CPR in attempting to save the individual’s life resulted in an increase in blood pressure, which caused the aneurysm to rupture at that time . . . .
We begin by noting the well-established standard of review
for worker’s compensation cases from the Industrial Commission. This Court does not assess credibility or
re-weigh evidence; it only determines whether the record contains any evidence
to support the challenged findings. Adams
v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998), rehearing
denied, 350 N.C. 108, 532 S.E.2d 522 (1999). We are “limited to reviewing 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). In addition, findings
of fact not challenged on appeal are binding on this Court. Johnson v. Herbie’s Place, 157 N.C.
App. 168, 180, 579 S.E.2d 110, 118, disc. review denied, 357 N.C. 460,
585 S.E.2d 760 (2003).
We note that defendants assign error to the commission’s
findings of fact 6, 7, 8, 13, 14, and 15, but fail to argue them in their brief
to this Court. Accordingly, these
findings are conclusive on appeal.
Defendants first argue that the Commission erred in
concluding that plaintiff sustained an injury by accident. We disagree.
The Workers Compensation Act provides benefits “only [when
an] injury by accident aris[es] out of and in the course of the
employment.” N.C. Gen. Stat. §97-2(6)
(2003). An accident is “an unlooked for
and untoward event which is not expected or designed by the person who suffers
the injury.” Adams v. Burlington
Industries Inc., 61 N.C. App. 258, 260, 300 S.E.2d 455, 456 (1983)
(citations omitted). “An accident
therefore involves ‘the interruption of the routine of work and the
introduction thereby of unusual conditions likely to result in unexpected
consequences.’” Calderwood v.
Charlotte-Mecklenburg Hosp. Auth., 135 N.C. App. 112, 115, 519 S.E.2d 61,
63 (1999), disc. review denied, 351 N.C. 351, 543 S.E.2d 124 (2000)
(quoting Adams, 61 N.C. App. at
260, 300 S.E.2d at 456).
Defendants contend that this case is controlled by the
holding in Neely v. City of Statesville, in which a firefighter’s heart
attack during a fire was found to be a non-compensable injury. 212 N.C. 365, 366, 193 S.E. 664, 665
(1937). The Supreme Court held that
[t]he work in
which the deceased was engaged was the usual work incident to his employment. The surrounding conditions might be expected
at a fire. The falling in of the roof is a natural result of fire burning
there. Heat and smoke are expected.
Physical exertion is required in handling the hose and fire-fighting
equipment. The firemen, of necessity,
act hurriedly. We find no evidence of
an accident.
Id. at 366-67, 193
S.E. at 665. Likewise, defendants here
contend that plaintiff’s injury occurred during usual work incident to his
employment and is thus non-compensable.
We believe that the case here is more analogous to King v. Forsyth
County, 45 N.C. App. 467, 263 S.E.2d 283, disc. review denied, 3000
N.C. 374, 267 S.E.2d 676 (1980). In King,
a deputy sheriff suffered a heart attack just after chasing a fleeing
suspect. Id. at 468, 263 S.E.2d
at 283. In reversing the commission’s
denial of compensation, this Court held that it:
was not
necessary for the plaintiff to show that the overexertion which was the cause
of his injury occurred while he was engaged in some unusual activity. It was the extent and nature of the exertion
that classifies the resulting injury to the plaintiff’s heart as an injury by
accident within the meaning of G.S. 97-2(6).
Id. at 471, 263
S.E.2d at 285. The King opinion
also cites Gabriel v. Town of Newton, 227 N.C. 314, 42 S.E.2d 96 (1947),
in which “our Supreme Court clearly recognized that damage to heart tissue
clearly precipitated or caused by ‘overexertion’ constitutes an injury by
accident.” King, 45 N.C. App. at
468, 263 S.E.2d at 284. In Gabriel,
a policeman suffered a heart attack after struggling with a man who was
violently resisting arrest; the heart attack was held to be a compensable
injury by accident. Gabriel, 227
N.C. at 318, 42 S.E. 2d at 98-99.
Here, the commission found that plaintiff suffered an
aneurysm following exhaustion from administering CPR in the course of his work,
and that the physical exertion and stress of administering CPR caused the
aneurysm to burst. Further the
commission found:
Plaintiff,
Officer Mead and Wanda Smith the dispatcher testified CPR is seldom done by
deputy sheriffs. Although they are
trained in CPR, deputies are rarely first responders to medical
emergencies. This was the first time
plaintiff had done CPR in his 8½ years on the force and dispatcher Smith had
not had any officer on the Sheriff’s department doing CPR in her eight years as
a dispatcher with the Department.
This
finding which is well-supported by the evidence, supports the commission’s
conclusion that plaintiff, like the plaintiff in Gabriel, suffered a
compensable injury by accident. These
findings, which are conclusive on appeal, support the conclusion that plaintiff
suffered a compensable injury by accident on 26 February 2002. Because plaintiff did not need to show that
the overexertion which was the cause of his injury occurred while he was
engaged in some unusual activity, the commission’s findings are sufficient to
support its conclusion. We overrule
this assignment of error.
Defendants next argue that the commission erred in concluding
that plaintiff’s employment was causally related to his aneurysm. We disagree.
Defendants contend that the evidence before the commission
did not support the commission’s finding that plaintiff suffered a ruptured
aneurysm as a result of his work doing CPR on 26 February 2002. However, the record indicates that Dr.
Jaufmann stated by letter that:
Alfred Ferreyra
suffered a subarachnoid hemmorage due to an anterior communicating artery
aneurysm while giving CPR . . . . It is my opinion that most likely the stress
and excitement while performing CPR in attempting to save the individual’s life
resulted in an increase in blood pressure which caused the aneurysm to rupture
at that time.
This
evidence supports the commission’s finding that plaintiff’s administration of
CPR while working caused the aneurysm which in turn supports the conclusion
that plaintiff suffered a compensable injury.
Defendants assert that this testimony was incompetent and
should not have been relied upon because it was based on speculation and
conjecture. See Dean v. Carolina
Coach Co., 287 N.C. 515, 522, 215 S.E.2d 89, 94 (1975). Defendants contend that testimony from
another medical expert should have been given greater weight than Dr.
Jaufmann’s. We conclude that Dr.
Jaufmann’s testimony was unequivocal and not speculative. This Court does not weigh the credibility or
relative strength of evidence. Adams,
349 N.C. at 681, 509 S.E.2d at 414.
Because the evidence supports the commission’s findings of fact, which
in turn support its conclusions of law, we overrule this assignment of error.
Affirmed.
Judges TYSON and LEVINSON concur.