All opinions are subject to modification and technical correction prior
to official publication in the North Carolina Reports and North Carolina Court
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is to be considered authoritative.
NO. COA05-1107
NORTH CAROLINA COURT OF APPEALS
Filed: 1 August 2006
ELEANOR WOOTEN,
Widow of
WALTER WOOTEN,
Deceased,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 250240
NEWCON
TRANSPORTATION, INC.,
Employer,
and
FIREMAN’S FUND
INSURANCE CO./
THE GOFF GROUP,
Carrier,
Defendants.
Appeal by defendants from opinion and award
entered by the North Carolina Industrial Commission on 28 April 2005. Heard in the Court of Appeals 8 March 2006.
Cobourn & Saleeby, L.L.P., by Sean C. Cobourn, for
plaintiff-appellee.
Rudisill, White & Kaplan, P.L.L.C., by Garth H. White and Bradley
H. Smith, for defendant-appellants.
HUDSON, Judge.
In May 2002, plaintiff, the widow of deceased
employee Walter Wooten (“the decedent”), filed a claim with the North Carolina
Industrial Commission alleging that her husband died in a traffic accident that
occurred while he was working as a truck driver for defendant-employer. On 27 April 2004, Deputy Commissioner Philip
A. Baddour, III, entered an opinion and award denying plaintiff’s claim on the
ground that decedent’s death was not an injury by accident which arose out of
his employment. On 28 April 2005, the
Full Commission reversed and awarded plaintiff workers’ compensation
benefits. Defendants appeal. We affirm.
The facts as found by the Commission show
that decedent Walter Wooten was employed as a truck driver with
defendant-employer. On 9 May 2002 at
approximately 10:45 p.m., decedent was driving a tractor-trailer on Interstate
81 in Augusta County, Virginia, at an estimated speed of 65 m.p.h., when his
truck ran off the left side of the road, struck the guardrail, and came to rest
in the median. No other vehicles were
involved in the accident. Two unknown
passersby called 911; one reported that it appeared that the truck struck
debris in the road and ran off the highway, and the other reported that her
husband checked the driver, who was unconscious, but still breathing. Virginia State Police were dispatched and
emergency rescue workers pronounced decedent dead at the scene of the accident.
Following the accident, inspection of the
left side of decedent’s vehicle revealed two missing tires, which most likely
came off as a result of damage to the tire rims when the vehicle hit the guard
rail. At the time of his death,
decedent was 51 years old with a prior history of heart conditions, including
one prior heart attack. Dr. William
Massello, an assistant medical examiner, performed an autopsy on decedent which
revealed arteriosclerotic heart disease, or a hardening and narrowing of the
arteries. He found severe hardening of
the arteries that supply blood to the heart and testified that “they were so
narrow that they were almost completely shut.”
In his first deposition, Dr. Massello testified that decedent’s heart
disease triggered an arrhythmia, causing decedent to experience a sudden heart
attack, and that he believed that the immediate cause of decedent’s death was
arteriosclerotic heart disease. When
asked whether the stress and physical exertion caused by losing control of his
truck could have triggered decedent’s arrhythmia, Dr. Massello stated: “If a
person were physically or mentally stressed because of that and his blood
pressure went up and the adrenaline came out and . . . physical exertion took
place, those would be things that would precipitate an arrhythmia in this man
with this kind of heart disease.”
However, Dr. Massello stated that he could not say whether the
arrhythmia occurred while decedent was driving or after he stopped.
In Dr. Massello’s first deposition, the
deputy commissioner had ruled that the 911 reports were inadmissible
hearsay. However, the Full Commission
subsequently determined that the reports were admissible and allowed a second
deposition of Dr. Massello. In the second
deposition, Dr. Massello again stated that he believed that decedent died as a
result of an arrhythmia caused by arteriosclerotic heart disease. Regarding the 911 reports, Dr. Massello
testified that he did not know whether defendant had the accident because of a
heart attack or whether he had a heart attack because of the accident.
Defendants first argue that the Commission
erred in finding that plaintiff is entitled to the presumption under Pickrell
v. Motor Convoy, Inc., 322 N.C. 363, 368 S.E.2d 582 (1988), that decedent
died from a compensable cause. In order
for plaintiff to recover workers’ compensation benefits for the death of the
decedent, she must prove that he died from an injury by accident arising out of
and in the course of his employment.
N.C. Gen. Stat. §97-2(6) (2001).
Where the circumstances concerning the causal connection between
decedent’s work and his death are unknown, there is a “presumption that death
was work-related, and therefore compensable, whether the medical reason for
death is known or unknown,” known as the “Pickrell presumption.” Pickrell, 322 N.C. at 370, 368 S.E.2d at
586. Here, the Commission made the
following relevant findings of fact:
4. . . . The 911 dispatch report indicates that an unknown 911 caller reported that decedent’s tractor trailer “appeared to have struck tire debris in [the] road and ran off [the] roadway.” The record is unclear why decedent’s vehicle lost control.
* * *
6. On May 10, 2002, an autopsy was
performed on decedent by Dr. William Massello, the Assistant Chief Medical
Examiner for the Virginia Office of the Chief Medical Examiner in western
Virginia. Dr. Massello found that at
the time of decedent’s death, he was suffering from arteriosclerotic heart
disease, or a hardening and narrowing of the arteries that supply blood to the
heart . . . . Dr. Massello further testified that decedent’s heart disease
triggered an arrhythmia, causing decedent to experience a sudden heart
attack. Finally, Dr. Massello testified
to a reasonable degree of medical certainty that the immediate cause of
decedent’s death was arteriosclerotic heart disease.
7. In his first deposition Dr. Massello
was asked whether the stress and physical exertion caused by the truck losing
two tires, striking the guardrail and going into the median could have
triggered decedent’s arrhythmia. Dr. Massello
stated: “If a person were physically or mentally stressed because of that and
his blood pressure went up and the adrenaline came out and . . . physical
exertion took place, those would be things that would precipitate an arrhythmia
in this man with this kind of heart disease. . . .” Upon further questioning whether the arrhythmia took place while
decedent was driving the truck or after he stopped driving the truck, Dr.
Massello stated that there was no way that he could say one way or the other.
8. During the second deposition, Dr. Massello again stated to a reasonable degree of medical certainty that decedent’s death was a result of an arrhythmia caused by arteriosclerotic heart disease. Regarding the information contained in the 911 reports, Dr. Massello stated that he did not know whether decedent allegedly struck debris because there was a heart attack in progress or whether decedent struck debris because he could not avoid it. Dr. Massello further stated decedent “could have had the accident because of a heart attack or he could have had the heart attack because of the accident.” Dr. Massello also indicated that most people who have heart attacks while driving manage to steer the vehicle off the road, even if they lose consciousness before the car stops.
The scope of this Court’s review of an
Industrial Commission decision is 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) (citing Adams v. AVX Corp., 349 N.C. 676, 509
S.E.2d 411 (1998)). Here, although
defendants assigned this error to several findings of fact, they do not make
this argument in their brief. Thus, we
deem these assignments of error abandoned, N.C. R. App. P. 28(b)(6) (2005), and
treat the unchallenged findings of fact as conclusive on appeal. First Union Nat’l Bank v. Bob Dunn Ford,
Inc., 118 N.C. App. 444, 446, 455 S.E.2d 453, 454 (1995). Accordingly, the question before us is
whether the findings support the following challenged conclusions:
4. [T]he greater weight of the evidence
indicates that the circumstances regarding the work-relatedness of decedent’s
death are unknown and that the death occurred as a result of an injury by
accident sustained in the course of decedent’s employment. It is uncontested that plaintiff was within
the course of his employment and was engaged in his employer’s business at the
time of his death. The fact that the
immediate medical cause of decedent’s death is known does not indicate that the
Pickrell presumption does not apply.
Pickrell v. Motor Convoy, Inc., supra.
5. Decedent was involved in a motor
vehicle accident while in the course and scope of his employment with
defendant-employer. As a result of the
accident, decedent suffered a cardiac arrhythmia and died. The only element at issue is whether decedent’s
injury by accident arose out of the employment. The evidence fails to show whether decedent had a heart attack
that caused the motor vehicle accident or whether the circumstances of the
accident caused decedent’s heart arrhythmia.
Therefore, defendants have failed to meet their burden of showing that
plaintiff’s arrhythmia occurred prior to and caused plaintiff’s injury by
accident. Defendants have not
successfully rebutted the presumption by coming forward with sufficient,
credible evidence that death occurred as a result of a non-compensable
cause. Pickrell v. Motor Convoy,
Inc, supra; Melton v. City of Rocky Mount, supra. Plaintiff is entitled to the Pickrell
presumption that decedent’s cause of death was an injury by accident arising
out of the employment. Id.
We conclude that the Commission’s findings of
fact support these conclusions of law and that the Commission correctly applied
the Pickrell presumption here.
Defendants contend that the Commission erred because the presumption of
compensability applies “only where there is no evidence that decedent died
other than by a compensable cause.”
Gilbert v. Entenmann’s, Inc., 113 N.C. App. 619, 623, 440 S.E.2d
115, 118 (1994). However, in Gilbert,
the Court concluded that plaintiff was not entitled to the Pickrell
presumption because decedent died from a subarachnoid hemorrhage, which is not
a compensable cause. In contrast, “an
injury caused by a heart attack may be compensable if the heart attack is due
to an accident, such as when the heart attack is due to unusual or
extraordinary exertion or extreme conditions.” Cody v. Snider Lumber Co., 328 N.C. 67, 71, 399 S.E.2d
104, 106 (1991) (italics in original, internal citations and quotations
omitted). Furthermore, we note that
there was no evidence here that decedent died by other than a compensable cause
- as the Commission concluded, “[t]he evidence fails to show whether decedent
had a heart attack that caused the motor vehicle accident or whether the
circumstances of the accident caused decedent’s heart arrhythmia.”
Defendants also contend that if plaintiff is
entitled to the Pickrell presumption, then they successfully rebutted
it. In order to rebut the presumption, “the defendant has the burden
of producing credible evidence that the death was not accidental or did not
arise out of employment.” Bason v.
Kraft Food Service, Inc., 140 N.C. App. 124, 128, 535 S.E.2d 606, 609
(2000). In Bason, decedent was
found dead in his delivery truck, which was parked behind a building where he
had been scheduled to make a delivery and an autopsy revealed the cause of
death to be a cardiac arrhythmia caused by heart disease. Id.
“Defendant, however, presented evidence and the Full Commission found as
fact that ‘there was nothing unusual about the route, the hours, or the amount
or type of deliveries required of . . . Decedent’ on the day of his
death.” Id. (ellipses in
original). The Court held that the
Commission correctly concluded that defendant rebutted the Pickrell
presumption. Id. Here, it is undisputed that decedent was
involved in an accident, and we conclude that the Commission correctly
concluded that defendants did not rebut the presumption of compensability. We overrule this assignment of error.
Defendants also argue that the Commission
erred in admitting the 911 dispatch report into evidence because it is inadmissible
hearsay. The Commission admitted a 911
dispatch report which contains statements of unknown callers. The rules of evidence do not strictly apply
in worker’s compensation cases, Haponski v. Constructor’s Inc., 87 N.C.
App. 95, 97, 360 S.E.2d 109, 110 (1987), but even if they did, the Commission
did not err in exercising its discretion.
Rule 805 provides that, “[h]earsay included within hearsay is not
excluded under the hearsay rule if each part of the combined statements
conforms with an exception to the hearsay rule provided in these rules.” N.C. Gen. Stat. §8C-1, Rule 805 (2001). The Commission determined that the 911
calls were admissible in their entirety pursuant to the hearsay exceptions of
Rule 803(1), (2), (6) and (8). N.C.
Gen. Stat. §8C-1 (2001). In their
brief, defendants concede that the dispatch reports were admissible under Rule
803(6), “Records of Regularly Conducted Activity,” and Rule 803(8), “Public
Records and Reports.” But defendants contend that the statements of the unknown
callers were not properly admitted pursuant to Rule 803 (1) or (2). We disagree. Rule 803(1), “Present Sense Impression,” allows for admission of “[a] statement
describing or explaining an event or condition made while the declarant was
perceiving the event or condition, or immediately thereafter.” N.C. Gen. Stat. §8C-1. Defendants contend that there is no evidence
that the statements were made “while the declarant was perceiving the event or
condition, or immediately thereafter.”
However, we conclude that 911 calls reporting that “the [tractor
trailer] appeared to have struck tire debris in road and ran off roadway” and
that “[caller’s] husband checked the driver and advised he was not moving but
he was breathing,” qualify as present sense impressions. Even if the callers did not observe the
accident happen, they observed the aftermath and then reported this “event or
condition.” Because we conclude that the calls were admissible pursuant to Rule
803(1), we need not determine whether they qualify as excited utterances under
Rule 803(2). We overrule this
assignment of error.
Affirmed.
Judges HUNTER and BRYANT concur.