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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. COA05-1645
NORTH CAROLINA COURT OF APPEALS
Filed: 5 December 2006
SANDRA ROSE,
Employee,
Plaintiff
v. North
Carolina Industrial Commission
I.C.
File No. 000000
I.C. File No.
386335
CITY OF ROCKY MOUNT,
Self-Insured
Employer,
COMPENSATION CLAIMS SOLUTIONS,
Administrator,
Defendants
Appeal by employer from opinion and award of the North
Carolina Industrial Commission entered 29 September 2005. Heard in the Court of Appeals 19 October
2006.
Thomas
and Farris, P.A., by Albert S. Thomas, Jr., and Rose Rand Attorneys, P.A., by
Paul N. Blake, III, for plaintiff-appellee.
Brooks,
Stevens & Pope, P.A., by Kathlyn C. Hobbs and Matthew P. Blake, for
defendants-appellants.
MARTIN, Chief Judge.
The City of Rocky Mount (“employer”) and Compensation Claims
Solutions (“administrator”)(collectively “defendants”) appeal an opinion and
award by the North Carolina Industrial Commission (“Commission”) awarding
benefits to Sandra Kay Rose (“plaintiff-employee”), a sworn officer of the City
of Rocky Mount’s police department.
The underlying events relating to this case took place on 10
November 2003. Evidence in the record tended to show that plaintiff-employee
had worked in her present position as a police officer since June 1987,
attaining the rank of corporal. At
lunch time, following the standard sign-out procedures, she went to run some
personal errands. She was not paid for
her lunch break, and she drove her personal vehicle. She was accompanied by another officer. During plaintiff-employee’s return trip to the police station,
her car was struck from the rear by a vehicle driven by one Aaron Troy Sutton
(“Sutton”), an intoxicated driver.
Plaintiff-employee emerged from her vehicle to evaluate the
damage. As she began to walk back
toward Sutton’s car, it became evident to her that Sutton was planning to flee
the scene. Following her training, she “tapped” the hood of the car in order to
leave her fingerprints, threw up her hands and yelled for him to stop, while
simultaneously trying to get out of the way.
Sutton struck plaintiff-employee, who was flung across two lanes of
traffic. Sutton then ran across
plaintiff-employee’s legs a second time while making his get-away. The first officer on the scene noted that
plaintiff-employee appeared “almost lifeless.”
An ambulance transported plaintiff-employee to Nash General
Hospital. She was treated for multiple
bruises and abrasions. However, she suffered no fractures. After her discharge, an orthopedic
specialist advised her to continue with the medication, crutches and knee
immobilizer she received during her hospitalization. She was also restricted in her work functions.
Plaintiff-employee returned to work on 6 January 2004.
However, her work functions were circumscribed by the restrictions indicated
above, which barred her from heavy lifting, climbing, and crawling. This limited her ability to perform crime
scene investigations, her primary responsibility. These limitations caused some friction with her supervisor.
Plaintiff-employee was diagnosed with post traumatic stress,
myofacial dysfunctional pain syndrome, bilateral occipital neuralgia, possible
knee reflex sympathetic dystrophy, possible cervical herniated disc,
depression, short term memory loss, lack of concentration, and adjustment
disorder with mixed emotional features.
After her employer determined that her injuries were not
related to her job functions, plaintiff-employee filed a Form 33 Request for a
Hearing on 16 February 2004. Defendants
responded with Form 33R on 5 March 2004.
The deputy commissioner heard the case on 18 August 2004 in
Nashville. On 26 January 2005, she
entered an Opinion and Award, which inter alia, determined that
plaintiff-employee’s injuries arose out of her employment, that she had not
reached maximum medical improvement, and directed that she be given additional
leave and benefits to recuperate.
Defendants appealed to the full Commission.
On 29 September 2005, the Commission entered an Opinion and
Award affirming the deputy commissioner’s decision. This appeal follows.
________________
Standard of Review
Our review of the
Commission’s opinion and award is limited to determining whether competent
evidence of record supports the findings of fact and whether the findings of
fact, in turn, support the conclusions of law. Deese v. Champion Int’l Corp., 352 N.C. 109, 116, 530 S.E.2d
549, 553 (2000). If there is any
competent evidence supporting the Commission’s findings of fact, those findings
will not be disturbed on appeal despite evidence to the contrary. Jones v. Desk Co., 264 N.C. 401, 402, 141
S.E.2d 632, 633 (1965). However, “[t]he
Commission’s conclusions of law are reviewed de novo.” Ward v. Long Beach Vol. Rescue Squad, 151
N.C. App. 717, 720, 568 S.E.2d 626, 628 (2002).
---
Although defendants assigned error to findings of fact 18,
19, 20, 21, 23, and 24, defendants have failed to include in their brief any
argument or legal authority in support of its assignments of error regarding
findings 21, 23 and 24. Accordingly,
these assignments of error are deemed abandoned, N.C. R. App. P. 28(b)(6), and
these findings of fact are conclusively established on appeal. 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). Defendants
also challenge conclusions of law 2 and 3, that the plaintiff-employee was at
increased risk of assault as a police officer and that her injuries arose out
of her employment.
Turning first to conclusion 3, defendants contend that the
Commission erred in determining that plaintiff-employee’s injuries arose out of
and in the course of her employment.
Our Supreme Court has previously held that a determination that an
injury arose out of and in the course of employment is a mixed question of law
and fact, “and where there is evidence to support the Commissioner’s findings
in this regard, [the appellate court is] bound by those findings.” Barham v. Food World, 300 N.C. 329, 331,
266 S.E.2d 676, 678 (1980). This Court
reviews the record to determine if the findings of fact and conclusions of law
are supported by the record. Cauble
v. Soft-Play, Inc., 124 N.C. App. 526, 528, 477 S.E.2d 678, 679 (1996), disc.
review denied, 345 N.C. 751, 485 S.E.2d 49 (1997).
The pivotal finding in this case was the Commission’s
determination that it was plaintiff-employee’s status as a police officer that
motivated Sutton’s attack. This finding
is critical for two reasons. First, as
a matter of law, a mere automobile accident would represent “a risk common to
the traveling public and was not due to a hazard peculiar to a police
officer.” It would thus not be
compensable as a work injury. See
Roberts v. Burlington Indus., Inc., 321 N.C. 350, 358, 364 S.E.2d 417, 423
(1988) (holding that an injury is compensable only if “the nature of the
employment was a contributing proximate cause of the injury, and one to which
the employee would not have been equally exposed apart from the employment”).
Secondly, the Industrial Commission found that
plaintiff-employee’s injuries were sustained as the result of Sutton’s assault
and not as the result of the automobile accident. Significantly, the Commission stated in its findings of fact that
the “hit-and-run assault was a natural result of a risk reasonably associated
with being a police officer” and would not have occurred had plaintiff-employee
not been in uniform. A fellow officer
who was also involved in the accident, but not in the subsequent assault, does
not appear to have been seriously injured.
As noted above, the Commission’s “findings of fact are
conclusive on appeal if supported by competent evidence even though there is
evidence to support a contrary finding.”
Murray v. Associated Insurers, Inc., 341 N.C. 712, 714, 462
S.E.2d 490, 491 (1995). Our Supreme
Court has held that “a police officer retains his official law enforcement
officer status even while ‘off duty’ unless it is clear from the nature of his
activities that he is acting solely on behalf of a private entity, or is
engaged in some frolic or private business of his own.” State v. Gaines, 332 N.C. 461, 472, 421
S.E.2d 569, 575 (1992). Gaines
permitted a potential death penalty prosecution to proceed premised on the
victim’s status as an off-duty police officer.
Id. Other jurisdictions
have followed the Gaines reasoning. See, e.g., White v. Kentucky, 178 S.W.3d 470, 481 (Ky. 2005)
(shooting of uniformed sheriff at fish fry constituted murder of police
official engaged in his duties) (citing Gaines, 332 N.C. at 472, 421
S.E.2d at 574). Logic would dictate that a worker’s compensation claim for a
uniformed police officer acting in accordance with her training presents at
least an equally strong case as a criminal prosecution potentially entailing
the death penalty.
Here, plaintiff-employee testified it was after she emerged
from the vehicle and was mid-center in front of the drunk driver’s car that the
latter attempted to flee. Other
witnesses at the scene told the police that Sutton “aimed” his car at the
“police officer” and proceeded to drag her.
Defendants alleged that there is no evidence to support the Commission’s
determination that plaintiff-employee was attacked because she was a police
officer, since Sutton, the only individual aware of his intentions at the time
of the assault, stated that he did not know that she was a police officer.
We find this suggestion disingenuous. At the time of his statement, Sutton was
faced with the prospect of being charged with a myriad of serious criminal
offenses. Conceding that he had
deliberately targeted a law enforcement officer would have exacerbated his
already precarious position. Indeed,
Sutton denied hitting plaintiff-employee’s truck, denied ramming her, and
denied leaving the scene. Against this
background, we cannot fault the Commission for declining to take his statements
at face value. We note that Sutton did
concede he was aware that his victim was uniformed.
We have previously noted that mental state is seldom
provable by direct evidence. State
v. Campbell, 51 N.C. App. 418, 421, 276 S.E.2d 726, 729 (1981). Therefore, the willfulness of an
individual’s conduct may be inferred from the circumstances surrounding the
events. See, e.g., State v. Agnew,
294 N.C. 382, 393, 241 S.E.2d 684, 691 (1978).
Our Supreme Court has held that:
Knowledge is a mental state that may be proved by offering circumstantial evidence to prove a contemporaneous state of mind. ... It may be proved by the conduct and statements of the defendant, by statements made to him by others, by evidence of reputation which it may be inferred had come to his attention, and by other circumstantial evidence from which an inference of knowledge might reasonably be drawn.
State
v. Bogle,
324 N.C. 190, 195, 376 S.E.2d 745, 748 (1989) (citation omitted). Examining the circumstantial evidence
around the attack on plaintiff-employee, including her testimony and that of
other witnesses present at the scene, we hold there is sufficient evidence to
support the Commission’s findings that the assault was directed against the
plaintiff-employee because of her status as a police officer, and not because
of the traffic accident.
It is this distinction that renders the defendant’s chief
case inapposite to the present one. Dodson v. Dubose Steel, Inc., 159 N.C. App. 1, 12, 582 S.E.2d
389, 395 (2003) (Steelman, J., dissenting), rev’d per curiam, 358 N.C.
129, 591 S.E.2d 548 (2004) (for reasons stated in the dissent), concerned a
driver killed in a road rage altercation.
The dissenting opinion adopted by the Supreme Court specifically noted
that all drivers were at equal risk of confrontations arising from road rage,
whether they were driving for employment or personal reasons. Id. at 15, 582 S.E.2d at 398. The determinative and distinguishing fact
was that the decedent in Dodson was not attacked because he was a truck
driver. By contrast, the Commission has
specifically found that plaintiff-employee in this case was targeted for
assault because of her status as a police officer.
We also note, in the alternative, that the Commission found
as a matter of fact that the plaintiff-employee was acting in her law
enforcement capacity in her response to Sutton. The Commission alluded in particular to the undisputed fact that
plaintiff-employee followed police procedure and “tapped” the hood of the
assailant’s car with her hands to provide prints for subsequent
investigation. Plaintiff-employee also
testified that, in leaving the prints, she was following her training and
established police procedure.
In this context, defendants have challenged some particular
factual findings made by the Commission.
For instance, the Commission relied on the fact that plaintiff-employee was
on call during the incident as an underlying factor to support its
determination that her injuries arose out of and in the course of her
employment. Defendants challenge this
finding, citing Childs v. Johnson,
155 N.C. App. 381, 389, 573 S.E.2d 662, 667 (2002) for the proposition
that being on call is insufficient to draw a government employee into the scope
of employment while on a personal errand.
The comparison is misplaced.
In the first place, the Commission unequivocally rejected
plaintiff-employee’s assertion that being on-call in and of itself placed her
on duty:
15. ... Plaintiff
has argued that she was on-call during her shift, that she had her radio on and
with her throughout the time she was gone in case she was called into service
...
16. However,
plaintiff was not at her workstation and was not engaged in any policy activity
when her vehicle was rear-ended. ... She was not paid for the lunch period,
which was not considered to be a “break”, a shorter rest period taken on site;
nor was she paid mileage for use of her vehicle. Although she had her police radio on while she was gone, she had
not been called into service during her lunch period but spent the time running
personal errands.
Secondly,
Childs dealt with the denial of governmental immunity to a government
official involved in an automobile accident whose job required him to be on
call twenty-four hours a day. Id. It was not a Workers’ Compensation Act
case. In Childs, we held that
the mere fact that the official was on-call while running personal errands did
not suffice to shield his conduct in a subsequent automobile accident via the
doctrine of sovereign immunity. Its
holding is tangential at best to the case at bar.
More importantly, the Commission did not rest its determination
that the attack occurred in the scope of employment exclusively on the fact
that plaintiff-employee was on call.
The evidence was cumulative, and the Commission noted inter alia,
that plaintiff-employee was still on her work shift, was in uniform, and that
the assault resulted from her identification as a police officer. Indeed, in Gaines, supra, our
Supreme Court held that the decedent, an off-duty but uniformed policeman on
security duty murdered by the defendant, had been “engaged in the performance
of his official duties.” Gaines,
332 N.C. at 477, 421 S.E.2d at 577; see State v. Lightner, 108 N.C. App.
349, 351-52, 423 S.E.2d 827, 829 (1992) (upholding a conviction on a count of
assault on a law enforcement officer, where the defendant assaulted off-duty
but uniformed police officers at restaurant during the course of the
altercation).
We stress that this Court does not function as an appellate
fact finder; it is the Commission that performs the “ultimate fact-finding”
function under our Worker’s Compensation Act.
Adams v. AVX Corp., 349 N.C. 676, 680-81, 509 S.E.2d 411, 413
(1998). If the Commission’s findings
are supported by competent evidence, they are conclusive on appeal, Hedrick
v. PPG Indus., 126 N.C. App. 354, 357, 484 S.E.2d 853, 856, disc. review
denied, 346 N.C. 546, 488 S.E.2d 801-02 (1997), and this Court “may set
aside a finding of fact only if it lacks evidentiary support.” Holley v. ACTS, Inc., 357 N.C. 228, 231,
581 S.E.2d 750, 752 (2003). In
particular, this Court may not weigh the evidence or evaluate the credibility
of witnesses, as “the Commission is the sole judge of the credibility of the
witnesses and the weight to be given their testimony.” Adams, 349 N.C.
at 680, 509 S.E.2d at 413. A finding of
fact is conclusive on appeal if supported by competent evidence, even where
there is evidence to contradict the finding. Id. at 681, 509 S.E.2d at 414.
We have noted several findings of fact above that are
undisputed and are cumulatively sufficient to support the Commission’s decision
on alternative grounds. “[S]o long as
there is some ‘evidence of substance which directly or by reasonable inference
tends to support the findings, this Court is bound by such evidence, even
though there is evidence that would have supported a finding to the contrary.’”
Shah v. Howard Johnson, 140 N.C.
App. 58, 61-62, 535 S.E.2d 577, 580 (2000) (quoting Porterfield v. RPC Corp.,
47 N.C. App. 140, 144, 266 S.E.2d 760, 762 (1980)), disc. review denied,
353 N.C. 381, 547 S.E.2d 17 (2001). We
may not substitute our own judgment for that of the Commission, even though the
evidence “might rationally justify reaching a different conclusion.” Floyd v. N.C. Dep’t of Commerce, 99 N.C.
App. 125, 129, 392 S.E.2d 660, 662 (1990) (citation omitted), disc. review
denied, 327 N.C. 482, 397 S.E.2d 217, disc. review dismissed, 327
N.C. 633, 399 S.E.2d 120 (1990).
Next, the defendants contend the full Commission erred in
failing to acknowledge or address all of the issues that were before it,
especially the issue of plaintiff-employee’s authority to engage in traffic
stops. The Commission is not required
to make a specific finding as to each potential point presented by the
evidence. Guest v. Iron & Metal
Co., 241 N.C. 448, 451, 85 S.E.2d 596, 599 (1955); Morgan v. Furniture
Industries, Inc., 2 N.C. App. 126, 128, 162 S.E.2d 619, 620 (1968). The issue of authority is not material in
this case, and the failure to specifically address it is not prejudicial
error. Thomason v. Cab Co., 235
N.C. 602, 605, 70 S.E.2d 706, 708-09 (1952).
We find this argument to be without merit.
The defendant’s last argument contends that the Commission
erred in its conclusion of law 2 in relying on a treatise to support its
conclusion of law that police officials and others who keep the peace are
subject to a special risk of assault. See 1 Larson’s Worker’s Compensation Law §8.01
(2000). We note in passing that our
Supreme Court has previously cited to non-binding authorities to clarify
issues. See, e.g., State v. Ali,
329 N.C. 394, 403, 407 S.E.2d 183, 189 (1991).
Here, the defendants contend that the Commission has
erroneously relied on Larsen’s treatise to effectively adopt the “positional
risk” rule, rather than the “increased risk rule” which is the law of this
state. See Ramsey v. Southern Indus.
Constructors Inc., ___ N.C. App. ___, ___, 630 S.E.2d 681, 689 (2006) (“[O]ur courts have applied an
‘increased risk’ analysis and have rejected the ‘positional risk’ doctrine
....”). We agree that the “increased
risk” test and not the “positional risk” rule is the law of the State, but
disagree with the defendant’s contention that the Commission erroneously
applied the latter.
Under the “increased risk” doctrine the injury arises out of
the employment if the nature of the employment is “a contributing proximate
cause of the injury, and one to which the employee would not have been equally
exposed apart from the employment.” Roberts, 321 N.C. at
358, 364 S.E.2d at 423. By contrast,
the “positional risk” rule holds that “‘[a]n injury arises out of the
employment if it would not have occurred but for the fact that the
conditions and obligations of employment placed claimant in the position where
he was injured.’” Id. (quoting 1
A. Larson, The Law of Workmen’s Compensation §6.50 (1984)). The Commission specifically found that
compensable injury was not the automobile accident -- “a risk common to the
traveling public” -- which would flow from the “positional risk” argument. Instead, the Commission clearly stated that
Sutton’s assault would not have occurred “but for the fact that she
[plaintiff-employee] was in uniform.” (emphasis added). This finding conforms to the contours of the
“increased risk” doctrine as demarcated in Roberts above.
Contrary to the defendants’ assertions, the Commission and
this Court have been cognizant of the fact that police officers are uniquely
vulnerable to certain job related dangers.
Injuries stemming from those dangers qualify for Workers’ Compensation. See Pulley v. City of Durham, 121
N.C. App. 688, 694, 468 S.E.2d 506, 510 (1996) (holding that clinical
depression leading to temporary total disability was a compensable work related
injury for police officer because of nature of work); Baker v. City of
Sanford, 120 N.C. App. 783, 788, 463 S.E.2d 559, 563 (1995) (holding that
depression is an occupational disease for law enforcement officials); Harvey
v. Raleigh Police Dep’t, 85 N.C. App. 541, 544, 355 S.E.2d 147, 150 (1987),
disc. review denied, 320 N.C. 631, 360 S.E.2d 86 (1987) (reversing the
Commission’s finding that job related stress was not cause of officer’s suicide
and remanding for reconsideration); Winfrey v. City of Durham Police Dep’t,
I.C. NO. 814869, 2001 NC Wrk. Comp. LEXIS 2589 (2001) (finding that
“plaintiff’s employment as a police officer for defendant was a significant
causal factor in plaintiff’s development of major depression and plaintiff’s
job with defendant placed him at an increased risk for developing major
depression”).
Finally, we address the plaintiff-employee’s request that under
our discretion we award her the expenses incurred in connection with litigating
this appeal as permitted by statute. See N.C. Gen. Stat. §97-88 (2003). Plaintiff-employee was injured on 10 November
2003. Deputy Commissioner
Morgan’s order granted her compensation for eight weeks of recuperative
leave. Though the underlying facts are
not in dispute, this case has been litigated at three levels over the same
number of years. Under N.C.G.S. §97-88,
the Commission or a reviewing court may award costs, including attorney’s fees,
to an injured employee “‘if (1) the insurer has appealed a decision to the full
Commission or to any court, and (2) on appeal, the Commission or court has
ordered the insurer to make, or continue making, payments of benefits to the
employee.’” Brown v. Public Works
Comm’n, 122 N.C. App. 473, 477, 470 S.E.2d 352, 354 (1996) (quoting Estes
v. N.C. State Univ., 117 N.C. App. 126, 128, 449 S.E.2d 762, 764 (1994)).
In the case at bar, the defendants have appealed the Deputy
Commissioner’s decision that temporary total disability compensation be paid to
plaintiff-employee. On appeal, the
Commission unanimously affirmed the award of temporary total disability
compensation. The defendants have now
appealed to this Court, and we also affirm the original decision of the trial
court. The statutory requirements are therefore satisfied, and we grant
plaintiff-employee’s request for expenses incurred in this appeal in our
discretion. See Brooks v. Capstar
Corp., 168 N.C. App. 23, 30-31, 606
S.E.2d 696, 701 (2005); Flores v. Stacy Penny Masonry Co., 134 N.C. App.
452, 459, 518 S.E.2d 200, 205 (1999).
The Commission must determine the portion of the attorney’s fees
stemming from the appeal. Hodges v.
Equity Grp., 164 N.C. App. 339, 347 596 S.E.2d 31, 37 (2004). Accordingly, this matter is remanded to the
Commission with instruction that the Commission determine the amount due
plaintiff-employee for the costs incurred as a result of the appeal to this Court,
including reasonable attorney’s fees.
Affirmed in part, remanded in part.
Judges ELMORE and JACKSON concur.