All
opinions are subject to modification and technical correction prior to official
publication in the
NO.
COA07-930
Filed:
4 November 2008
MARTY HOLLOWAY,
Employee,
Plaintiff,
v.
I.C.
File No. 328377
TYSON
FOODS, INC.,
Self-Insured,
Employer,
Defendant.
Appeal
by plaintiff from opinion and award entered 4 April 2007 by the North Carolina
Industrial Commission. Heard in the
Court of Appeals 17 January 2008.
David R. Paletta
for plaintiff-appellant.
Brooks, Stevens
& Pope, P.A., by Bambee B. Blake and Ginny P. Lanier, for
defendant-appellee.
GEER,
Judge.
Plaintiff
Marty Holloway appeals from an opinion and award of the Full Commission denying
his claim for workers’ compensation benefits.
Plaintiff primarily argues on appeal that the Commission erred in not
imposing sanctions on defendant Tyson Foods, Inc. for spoliation of evidence,
including granting a presumption of compensability and monetary sanctions. Under controlling precedent, however, the
spoliation of evidence gives rise to a permissive adverse inference and not a
presumption. Moreover, the principle of
spoliation of evidence as applied in
Facts
Plaintiff
has not assigned error to most of the Commission’s findings of fact. Those findings are, therefore, binding on
appeal, Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991),
and establish the following.
On 16
September 2002, the date of the alleged injury, plaintiff, who was 29 years
old, was employed in the maintenance division of the packing department at
Tyson Foods Roasted Products Plant in North Wilkesboro,
On 16
September 2002, plaintiff was performing a nozzle clear to remove an ink
blockage. Regina Wood, an employee in
the Labeling Department, saw plaintiff standing by the line as she was walking
to her worktable. The Commission found:
She saw the plaintiff fall and he didn’t
have anything in his hands when he fell.
She indicated that it was just like plaintiff’s knees went out from
under him. She did not hear any shouts
or sounds from the plaintiff. The
plaintiff was not flinging his arms when he fell. While Ms. Wood saw the plaintiff start to
fall, she did not see the plaintiff actually come into contact with the ground.
Employees then
contacted the plant nurse, Rebecca Houck.
Subsequently, 911 was called.
Houck
observed that plaintiff had no pulse, no respirations, his pupils were
non-reactive, and his face was cyanotic.
Houck and other employees performed CPR until the emergency medical
technicians (“EMTs”) arrived. The EMTs,
who found plaintiff pulseless and in ventricular fibrillation, assessed
plaintiff as being in cardiac arrest.
They transported him to
Later
that day, plaintiff was transferred to the Coronary Care Unit of Baptist
Hospital. A cardiac catheterization on
16 September 2002 revealed normal coronary arteries. Plaintiff was discharged from Baptist
Hospital to Carolina Institute of Rehabilitation on 16 October 2002 with
discharge diagnoses of, among others, sudden cardiac arrest, ventricular
fibrillation, Brugada syndrome, anoxic brain injury, and seizures. Plaintiff was discharged from the
On 27
December 2002, plaintiff was evaluated by Dr. Kenny Hefner with Medical
Associates of Wilkes, who diagnosed plaintiff with status post cardiac arrest
due to Brugada syndrome with mild persisting neurologic deficits. From December 2002 through February 2004,
plaintiff participated in outpatient occupational, speech, and physical therapy
at Wilkes Regional Medical Center Department of Rehabilitation Services.
A
medical note from Baptist Hospital dated 14 January 2003 noted a concern that
plaintiff may have received an electric shock while working on a printer, but
indicated that there was no definite evidence that plaintiff had received a
shock and ultimately concluded that plaintiff had suffered sudden cardiac
death, with its etiology not being clear.
On 21 January 2003, plaintiff underwent internal cardiac defibrillator (“ICD”)
placement. The Commission found that “the
competent, persuasive medical evidence of record establishes that the placement
of an ICD is treatment that would not be provided to someone who had
experienced a one-time electrical shock injury.
Rather, this treatment is consistent with someone who has idiopathic
ventricular fibrillation.” Plaintiff was
also treated with a course of Amiodarone, which the Commission found “is not a
treatment that is consistent with a one-time electrical shock injury.”
Plaintiff
applied for Social Security disability benefits on 15 January 2003 on the basis
that he could not work after experiencing a cardiac arrest that resulted in
brain injury. On 11 June 2003, the
Social Security Administration deemed plaintiff disabled as of 16 September
2002 due to the primary diagnosis of organic mental disorders (chronic brain
syndrome) and a secondary diagnosis of epilepsy.
Plaintiff
filed a Form 18 on 8 May 2003 asserting that he was electrocuted while working
on a machine, resulting in brain damage.
Defendant denied plaintiff’s claim in a Form 61 dated 26 August 2003 and
in a second Form 61 dated 12 January 2004.
In an opinion and award filed 14 June 2005, Deputy Commissioner Wanda
Blanche Taylor denied plaintiff’s claim on the grounds that plaintiff’s heart
condition and brain damage were caused by an idiopathic condition and did not
arise out of his employment.
Plaintiff
appealed to the Full Commission. The
Commission filed an opinion and award on 4 April 2007, affirming Deputy Commissioner
Taylor’s opinion and award with minor modifications. The Commission determined that plaintiff’s
injury was the result of a condition “that was idiopathic in nature” and,
therefore, was not compensable and that “[n]o attribute of plaintiff’s employment
increased the dangerous effect of plaintiff’s idiopathic condition.” The Commission accordingly denied plaintiff’s
claim for workers’ compensation benefits.
Plaintiff timely appealed to this Court.
Discussion
Appellate
review of a decision of the Industrial Commission “is limited to determining
whether there is any competent evidence to support the findings of fact, and
whether the findings of fact justify the conclusions of law.” Cross v. Blue Cross/Blue Shield, 104 N.C.
App. 284, 285-86, 409 S.E.2d 103, 104 (1991).
“The findings of the Commission are conclusive on appeal when such
competent evidence exists, even if there is plenary evidence for contrary
findings.” Hardin v. Motor Panels,
Inc., 136 N.C. App. 351, 353, 524 S.E.2d 368, 371, disc. review denied,
351 N.C. 473, 543 S.E.2d 488 (2000). The
Commission’s findings of fact may only be set aside if there is a “complete
lack of competent evidence to support them.”
Young v.
I
Plaintiff
first contends that the Commission erred in not imposing sanctions upon
defendant as a result of spoliation of evidence. Plaintiff argues that defendant did not
preserve the scene or the equipment involved — including the printer, the power
cord, the power outlet, and the conveyor assembly — so as to allow experts to
reconstruct the accident scene and determine whether there was an electrical
hazard. Plaintiff sought, as sanctions
for spoliation of evidence, a presumption of compensability, the payment of
costs incurred for accident investigation, and attorneys’ fees.
We
first note that plaintiff does not, in his brief, specifically address the
controlling
Nevertheless,
even if a party presents evidence of spoliation sufficient to give rise to an
adverse inference, that inference “‘is permissive, not mandatory.’“
In
this case, the Commission concluded that “[t]he plaintiff’s assertion that the
defendant is subject to sanctions for spoliation of evidence is misplaced and
without merit[,]” citing in support of that conclusion Red Hill Hosiery,
McLain, and Yarborough v. Hughes, 139 N.C. 199, 209, 51 S.E. 904,
907-08 (1905), the case upon which both Red Hill and McClain
relied. McLain specifically
establishes that plaintiff’s request for a burden-shifting presumption rather
than an inference was “misplaced” and meritless, as the Commission
observed. To the extent that plaintiff
sought monetary sanctions, Red Hill Hosiery, McLain, and Yarborough
indicate that the spoliation of evidence principle is an evidentiary matter.
While
conduct giving rise to a spoliation inference might also support the imposition
of sanctions under the Rules of Civil Procedure or other statutes, plaintiff
did not rely upon any other basis for sanctions. See Jones v. GMRI, Inc., 144
N.C. App. 558, 565, 551 S.E.2d 867, 872 (2001) (noting that plaintiffs failed
to seek an instruction on spoliation, but instead contended that “the court
should have used this doctrine as a basis to strike the defense pursuant to
Rules 26(b)(3) and 37(b)(2)(B)”; holding that trial court did not abuse its
discretion in denying sanctions), cert. improvidently allowed, 355 N.C.
275, 559 S.E.2d 787 (2002). Thus, the
Commission was correct when it determined that the precise request made by
plaintiff was not consistent with the law.
Further,
it is apparent from the Commission’s findings of fact that it considered
plaintiff’s contentions regarding spoliation, but chose not to draw an adverse
inference. Although the Commission did
not specifically reference spoliation in its findings of fact, the opinion and
award contains extensive findings directly relevant to the issue, including
findings regarding what defendant’s employees did with the printer, testing
conducted on the printer, reasons that the printer was returned to service,
testing by the printer’s manufacturer, the location of the printer on
subsequent dates, the testing of the printer and other equipment by defendant’s
expert, and plaintiff’s expert’s testing.
The Commission acknowledged that plaintiff’s expert “implied that Tyson
refurbished the plaintiff’s printer in anticipation of his inspection, although
he put forth no evidence to substantiate this allegation.” The Commission decided to “give[] little
weight to the opinion of [plaintiff’s expert] because there is insufficient
evidence of record to substantiate the same.”
The Commission further found: “The record shows that prior to September
16, 2002, there had never been any kind of electrical shock issues with any of
the Linx 6200 inkjet printers at Tyson Foods.
Tyson Foods continued to use the plaintiff’s printer through July/August
2004 without incident.” We hold that the
Commission’s findings are sufficient to address the issue of spoliation.
The
Commission, acting as the trier of fact, was free to accept or reject the
inference. “Inferences from
circumstances when reasonably drawn are permissible and that other reasonable
inferences could have been drawn is no indication of error; deciding which
permissible inference to draw from evidentiary circumstances is as much within
the fact finder’s province as is deciding which of two contradictory witnesses
to believe.” Snow v. Dick &
Kirkman, Inc., 74 N.C. App. 263, 267, 328 S.E.2d 29, 32, disc. review
denied, 314 N.C. 118, 332 S.E.2d 484 (1985). Based upon our review of the record and the
Commission’s findings of fact, we believe that the Commission’s decision not to
draw an adverse inference was reasonable and legally permissible. See id. (“In this instance the
inferences as to accident and effect that the Commission drew from the wealth
of competent evidence presented were both factually reasonable and legally
permissible in our opinion.”); Westbrooks v. Bowes, 130 N.C. App. 517,
526, 503 S.E.2d 409, 415 (1998) (“In our opinion, the inferences drawn by the
Commission regarding the cause of Westbrooks’ death are factually reasonable
and legally permissible.”).
II
Plaintiff
next contends that the Commission erred when it concluded: “Plaintiff is not
entitled to any presumption that this claim is compensable. The Pickrell presumption does not
extend to a plaintiff who survives his injury. Janney v. J.W. Jones Lumber Co., 145
N.C. App. 402, 550 S.E.2d 543 (2001).”
In Pickrell v. Motor Convoy, Inc., 322 N.C. 363, 370, 368 S.E.2d
582, 586 (1988), our Supreme Court held: “In cases . . . where the
circumstances bearing on work‑relatedness are unknown and the death
occurs within the course of employment, claimants should be able to rely on a
presumption that death was work‑related, and therefore compensable,
whether the medical reason for death is known or unknown.”
In Janney
v. J.W. Jones Lumber Co., 145 N.C. App. 402, 406, 550 S.E.2d 543, 546
(2001), this Court specifically limited Pickrell to cases involving
deaths: “[W]e decline to adopt the Pickrell presumption in this workers’
compensation case not resulting in death.”
Although
plaintiff argues extensively in his brief as to why the Pickrell
presumption should apply, he never addresses Janney. “Where a panel of
the Court of Appeals has decided the same issue, albeit in a different case, a
subsequent panel of the same court is bound by that precedent, unless it has
been overturned by a higher court.” In
re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37
(1989). Accordingly, the Commission
properly determined under Janney that the Pickrell presumption
did not apply in this case.
III
Finally,
plaintiff contends that even if his brain injury was caused by an idiopathic
condition, he was entitled to compensation because hazardous conditions of
employment contributed to that injury. Plaintiff points to the fact that the plant
nurse asked an employee to call 911, but the phones in the packing department
and in a nearby office were not working.
The employee ultimately reached the front desk, which in turn relayed
the message to the guard post, and an employee at the guard post called 911. Plaintiff contends that there was a delay of
19 minutes in calling 911.
In
arguing that this delay entitled him to compensation, plaintiff asserts: “Regardless
of the cause of this emergency, Mr. Holloway sustained a more severe injury as
a result of the danger Tyson created by restricting access to an outside phone
line that could call 911.” Plaintiff,
however, failed to present any expert evidence to support this assertion. Although plaintiff points to Dr. David Sane’s
testimony that “it’s quite likely that [plaintiff] sustained brain damage prior
to arrival at the Wilkes County ED[,]” neither Dr. Sane nor any other expert
witness testified that the delay in calling 911 caused plaintiff to suffer more
severe brain damage. See Click
v. Pilot Freight Carriers, Inc., 300 N.C. 164, 167, 265 S.E.2d 389, 391
(1980) (“[W]here the exact nature and probable genesis of a particular type of
injury involves complicated medical questions far removed from the ordinary
experience and knowledge of laymen, only an expert can give competent opinion
evidence as to the cause of the injury.”).
Plaintiff
explored generally with Dr. Sane the importance of CPR and defibrillation. Dr. Sane confirmed that the optimum time
frame to defibrillate a person in cardiac arrest is “[i]mmediately.” He agreed (1) that the sooner an individual
in cardiac arrest has his heart restarted, the better it is for the patient and
(2) that CPR with defibrillation is more beneficial than CPR without
defibrilliation. Dr. Sane also testified
that “the longer you do CPR without restoring the cardiac rhythm to normal then
that does carry a greater risk of brain damage and other damage.” When, however, asked what was the most likely
point in time that plaintiff sustained brain damage, Dr. Sane responded that “the
greatest risk would’ve been the time when he was not receiving any resuscitated
therapy or any CPR or the like, so prior to the onset of the CPR would’ve been
the greatest period of risk.” The record
thus lacks the necessary evidence that the claimed 19-minute delay between the
plant nurse’s starting CPR and the 911 call in fact contributed to a worsening
of plaintiff’s brain damage.
This
Court has held: “When the employee’s idiopathic condition is the sole cause of
the injury, the injury does not arise out of the employment. The injury does arise out of the employment
if the idiopathic condition of the employee combines with ‘risk[s] attributable
to the employment’ to cause the injury.”
Mills v. City of New Bern, 122 N.C. App. 283, 285, 468 S.E.2d
587, 589 (1996) (emphasis added) (internal citations omitted) (quoting Hollar
v. Montclair Furniture Co., 48 N.C. App. 489, 496, 269 S.E.2d 667, 672
(1980)). Plaintiff failed to make the necessary
showing of causation and, therefore, the Commission did not err in concluding
that “[n]o attribute of plaintiff’s employment increased the dangerous effect
of plaintiff’s idiopathic condition.”
Affirmed.
Judges
TYSON and STROUD concur.