All
opinions are subject to modification and technical correction prior to official
publication in the
NO.
COA07-1244
Filed:
20 January 2009
RONALD REAVES, Deceased,
Employee,
Plaintiff,
v.
I.C. File No. 412685
INDUSTRIAL PUMP
SERVICE,
Employer,
AMERICAN INTERSTATE INSURANCE
COMPANY,
Carrier,
Defendants.
Appeal
by plaintiff from opinion and award entered 22 June 2007 by the North Carolina
Industrial Commission. Heard in the
Court of Appeals 15 April 2008.
Shipman &
Wright, LLP, by Gary K. Shipman and William G. Wright, for plaintiff-appellant.
Cranfill Sumner
& Hartzog LLP, by Nicole D. Viele and Meredith Taylor Berard, for
defendants-appellees.
GEER,
Judge.
Plaintiff,
the representative of deceased employee Ronald Reaves, appeals from the
Industrial Commission’s decision denying plaintiff’s claim for workers’
compensation benefits as a result of the death of Mr. Reaves. Because the Commission failed to address all
the issues before it, and, on the issues reached, applied an incorrect legal
standard, we must vacate the decision and remand for further findings of fact
and conclusions of law. On remand, the
Commission must (1) address the applicability of the Pickrell v. Motor
Convoy, Inc., 322 N.C. 363, 370, 368 S.E.2d 582, 586 (1988), presumption;
(2) apply the proper legal standard for determining whether Mr. Reaves’ death
was caused by extreme work conditions; and (3) address plaintiff’s argument
that inadequate safety measures of defendant employer Industrial Pump Service (“IPS”)
were a significant contributing factor in Mr. Reaves’ death.
Facts
On 1
April 2004, Mr. Reaves, who was 54 years old, was working as a welder for
IPS. Mr. Reaves underwent a medical
examination on 16 January 2004, and the results indicated that (1) his blood
pressure was 120/80, (2) his resting heart rate was 76 beats per minute, and
(3) he had no prior history of cardiovascular disease.
Mr.
Reaves and his work partner, Robert Templeman, a machinist, were scheduled to
repair a pump at the International Paper plant in
On 1
April 2004, Mr. Reaves and Mr. Templeman arrived at the International Paper
plant at about 7:00 a.m., but did not begin working until approximately 10:00
a.m. They were required to work in a
pump room in the basement of the plant that had 15- to 18-foot ceilings and was
roughly 30 feet wide and 40 feet long.
The temperature inside the room was in the mid-80s, and it was hotter
and more humid inside the room than outside.
The entrance to the room was approximately 30 to 35 feet away from the
pump they were repairing. That doorway
was 10 feet by 12 feet and led to a well-ventilated hallway that was about five
to 10 degrees cooler than the pump room.
The pump room itself had an upright fan placed 20 to 25 feet away from
where Mr. Reaves and Mr. Templeman were working.
Once
the pump was disassembled by International Paper employees, Mr. Reaves and Mr.
Templeman began their work, first lifting and setting a lathe against the
broken pump shaft. This task took about
10 minutes. The pair then set up
lighting and arranged their tools around
the pump. At that point, Mr. Templeman
did his work on the pump for approximately three hours, during which time Mr.
Reaves was not required to perform any physical labor, but rather had “down
time” and went in and out of the room.
After Mr. Templeman finished, Mr. Reaves worked for approximately 45
minutes, using a welding torch to heat up a metal sleeve to 300 degrees so that
it would expand to fit over the broken shaft and then tack-welding the sleeve
in place over the shaft.
After
Mr. Reaves finished, he and Mr. Templeman went to lunch to let the unit cool down
so they could finish their work. They
returned to working on the pump sometime between 4:00 p.m. and 5:00 p.m. Mr. Templeman machined the sleeve and shaft
to the pump over about roughly four hours, during which time Mr. Reaves was not
working. Mr. Reaves, however, generally
stayed in the room with Mr. Templeman, as it was IPS policy that employees not
operate machinery alone. Occasionally,
Mr. Reaves would, however, leave the room.
The
Commission found that at about 7:00 p.m., Mr. Reaves “complain[ed] of not
feeling well and being hot,” and he told Mr. Templeman he was going to sit down
in the hallway outside the pump room.
The Commission further found that later, “[a]t approximately 10:30 p.m.,
[Mr. Reaves] again complained that he was ‘hot and fatigued’ and Mr. Templeman
suggested that he go outside and take a break.”
Mr. Templeman believed this was the first time that Mr. Reaves had ever
had to walk out of a job site because he was not feeling well and was hot.
Mr.
Templeman walked with Mr. Reaves to their work truck. Mr. Reaves got into the truck, and Mr.
Templeman told Mr. Reaves that he would be back in about 45 minutes when he
needed help reloading the truck. There
were no witnesses to what occurred during the 45 minutes Mr. Reaves was alone
in the truck.
When
Mr. Templeman returned to the truck, he found Mr. Reaves slumped over in the
passenger seat. After he received no
response from Mr. Reaves when he tapped on the window, Mr. Templeman went to
the plant’s EMT station to get help. The
medical staff found Mr. Reaves dead in the truck. An autopsy was performed on 2 April 2004, and
the medical examiner noted: “At autopsy the decedent had evidence of severe
atherosclerotic cardiovascular disease. . . . Cause of death: Coronary artery
disease.”
Plaintiff
filed a claim for death benefits on 22 September 2004, and on 22 September
2006, the deputy commissioner entered an opinion and award denying the
claim. Plaintiff appealed to the Full
Commission, and in an opinion and award entered 22 June 2007, the Commission
affirmed the deputy commissioner’s decision with minor modifications. Plaintiff timely appealed to this Court.
Discussion
Appellate
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).
The Commission’s findings of fact are conclusive on appeal if supported
by competent evidence “notwithstanding evidence that might support a contrary
finding.”
I
Plaintiff
first argues that the work-relatedness of Mr. Reaves’ death is unknown, and
thus the Commission should have applied the presumption of compensability
articulated in Pickrell v. Motor Convoy, Inc., 322 N.C. 363, 370, 368
S.E.2d 582, 586 (1988). Plaintiff argued
Pickrell below, but the Commission failed to make any findings of fact
or conclusions of law regarding that issue.
In Pickrell,
322 N.C. at 370, 368 S.E.2d at 586, our Supreme Court held that “[i]n 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.”
This Court reiterated that holding in Wooten v. Newcon Transp., Inc.,
178 N.C. App. 698, 700, 632 S.E.2d 525, 527 (2006) (internal quotation marks
omitted), disc. review denied, 361 N.C. 704, 655 S.E.2d 405 (2007): “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
. . . .”
In
this case, both plaintiff’s and defendant’s expert witnesses agreed that Mr.
Reaves suffered a cardiac arrhythmia although they disagreed whether that
resulted in an actual heart attack. Both
also agreed that exposure to heat can precipitate a cardiac arrhythmia, but
disagreed whether it did so in this case.
At the time that Mr. Reaves died, he had been alone for a substantial
period of time. As the Commission found,
however, he had twice complained of being hot and not feeling well. These circumstances are sufficient to at
least raise the issue of the applicability of the Pickrell presumption.
“It is
the duty and responsibility of the full Commission to make detailed findings of
fact and conclusions of law with respect to every aspect of the case before it.” Joyner v. Rocky
Defendants
argue that the Commission did not need to address the Pickrell
presumption because the circumstances surrounding Mr. Reaves’ death are known
as a result of Mr. Templeman’s testimony.
The Supreme Court’s reasoning in Pickrell suggests, however, that
the mere fact that another employee can provide testimony regarding some of the
circumstances should not, standing alone, be sufficient to negate the possible
applicability of Pickrell. The
Court explained the purpose of the presumption:
Applying
such a presumption of compensability is fair because the Workers’ Compensation
Act should be liberally construed in order to accomplish its purpose. Employers may be in a better position than
the family of the decedent to offer evidence on the circumstances of the death. Their employees ordinarily are the last to
see the decedent alive, and the first to discover the body. They know the decedent’s duties and work
assignments. Additionally, if
employers deem it necessary to determine the medical reason for death, they may
notify the medical examiner of the county where the body is found, N.C.G.S. §130A-383
(1986), and utilize the certificate of death which the medical examiner
thereafter prepares. N.C.G.S. §130A-385(a)(b)
(1986). Such reports may be received as
evidence, and certified copies thereof have the same evidentiary value as the
originals. N.C.G.S. §130A-392 (1986).
322 N.C. at 370, 368
S.E.2d at 586 (emphasis added). Thus,
the fact that IPS’ employee presented testimony regarding what he observed does
not necessarily render Pickrell immaterial given that plaintiff’s
decedent is not here to testify as to what he actually experienced. The Commission must, therefore, address the
applicability of the presumption.
Defendants
further argue that the Commission did not err in failing to address the Pickrell
presumption because the cause of Mr. Reaves’ death is known and not work-related:
coronary artery disease. The
Significantly,
defendant’s own expert witness, Dr. Arthur Davis, acknowledged that the pre-existing
coronary artery disease would not, by itself, have caused Mr. Reaves’ death: “Now,
the coronary sclerosis by itself, de novo, cannot cause sudden death. You have to have a malignant dysrhythmia.” He also agreed that there were numerous known
causes of dysrhythmia. Dr. Davis’
testimony places this case within the potential scope of Pickrell and Wooten
because it raises, but does not answer, the question: what was the
precipitating cause of the dysrhythmia? See
Wooten, 178 N.C. App. at 703, 632 S.E.2d at 528 (affirming Commission’s
application of Pickrell presumption when 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’“). Contrary
to defendants’ contention, Mr. Reaves did not specifically die of a pre-existing
condition; there was some precipitating cause for the dysrhythmia that resulted
in his death.
This
fact distinguishes this case from Gilbert v. Entenmann’s, Inc., 113 N.C.
App. 619, 440 S.E.2d 115 (1994), on which defendants rely. In Gilbert, the employee died of a
subarachnoid hemorrhage, a non-compensable cause that is deadly in and of
itself without a precipitating event.
Defendants
finally argue that if the Pickrell presumption does apply in this case,
they “clearly presented evidence which rebutted any presumption.” Defendants’ contention, however, overlooks
the fact that the Commission did not address Pickrell at all. This Court may not decide for the first time
on appeal whether defendants rebutted the presumption. We, therefore, remand so that the Commission
may make findings of fact and conclusions of law regarding the applicability of
the Pickrell presumption. As the
Commission may conclude on remand that the Pickrell presumption does not
apply in this case or that defendants presented sufficient evidence to rebut
it, we address plaintiff’s other assignments of error.
II
Plaintiff
acknowledges that in the absence of the Pickrell presumption, plaintiff
bears the burden of proving that Mr. Reaves’ death arose out of his
employment. The Commission’s pertinent
conclusion of law states:
The greater weight of the evidence showed
that decedent’s job duties at the [International Paper] mill in
The finding of fact
supporting this conclusion stated that “decedent’s death was not caused by
extraordinary exertion or by exposure to a greater hazard or risk than that to
which decedent was otherwise exposed and therefore did not arise out of his
employment with defendant-employer.”
As a
general principle, “[w]hen an employee is conducting his work in the usual way
and suffers a heart attack, the injury does not arise by accident and is not
compensable.” Cody v. Snider Lumber
Co., 328 N.C. 67, 71, 399 S.E.2d 104, 106 (1991). Nonetheless, “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.”
In Dillingham
v. Yeargin Constr. Co., 320 N.C. 499, 358 S.E.2d 380 (1987), the Supreme
Court held:
“[W]here the employment subjects a
workman to a special or particular hazard from the elements, such as excessive
heat or cold, likely to produce sunstroke or freezing, death or disability
resulting from such cause usually comes within the purview of the compensation
acts. . . . The test is whether the employment subjects the workman to a
greater hazard or risk than that to which he otherwise would be exposed.”
The
Commission’s finding of fact on this issue focused on whether Mr. Reaves was
exposed “to a greater hazard or risk than that to which decedent was otherwise
exposed.” As the Commission’s conclusion
of law confirms, the Commission found dispositive the fact that this particular
work assignment involved the “same temperatures as those to which [Mr. Reaves]
was normally exposed.” This reasoning is
inconsistent with Dillingham since it does not focus on the correct
comparison: Mr. Reaves’ working conditions versus conditions to which the
general public is exposed. As the
leading workers’ compensation commentator has noted, “[t]he proper application
of the increased-risk test is exemplified by the following beautifully blunt
statement in a Texas sunstroke case: ‘In the case before us the very work which
the deceased was doing for his employer exposed him to a greater hazard from
heat stroke than the general public was exposed to for the simple reason that
the general public were not pushing wheelbarrow loads of sand in the hot sun on
that day.’“ 1 Arthur Larson & Lex K.
Larson, Larson’s Workers’ Compensation Law §5.04[2] (2006) (quoting American
Gen. Ins. Co. v. Webster, 118 S.W.2d 1082, 1085-86 (Tex. Civ. App. 1938)).
Citing
Cody, 328 N.C. at 71, 399 S.E.2d at 106, and Dye v. Shippers Freight
Lines, 118 N.C. App. 280, 282, 454 S.E.2d 845, 847 (1995), defendants
contend that the Commission nonetheless was required to consider whether Mr.
Reaves’ working conditions on the day he died were different than his regular
work conditions. Defendants misread Cody. In Cody, 328 N.C. at 71, 399 S.E.2d at
106 (emphasis original) (internal citation omitted), the Supreme Court observed
that a heart attack may be compensable if “due to unusual or extraordinary
exertion or extreme conditions.” “[U]nusual”
and “extraordinary” modify “exertion” and not “extreme conditions.” Cody cannot reasonably be read to
require a finding of unusually extreme conditions. Indeed, the Supreme Court, in reciting this
test, referred back to its decision in Dillingham, which sets out the
increased-risk test that the Commission should have applied. Cody, 328 N.C. at 71, 399 S.E.2d at
106.
Factually,
neither Cody nor Dye is material to this case since each involved
analysis of the “unusual exertion” prong of the test and not extreme
conditions. See Cody, 328 N.C. at
71, 399 S.E.2d at 107 (concluding heart attack not compensable where plaintiff’s
“physical exertion” was not “precipitating cause of [his] heart attack”); Dye,
118 N.C. App. at 283, 454 S.E.2d at 848 (upholding denial of benefits based on
lack of “credible evidence that plaintiff experienced any unusual or abnormal
stresses in his work that contributed to his” heart attack). Nothing in Cody or Dye can be
read as providing that an employee is not entitled to compensation if a heart
attack resulted from extreme conditions that were a routine aspect of the
employee’s job. That outcome would,
however, be the necessary result of defendants’ argument.
We
hold that the controlling test is the one set out in Dillingham. We note that the Commission did, in its
conclusion of law, also state that “[t]he greater weight of the evidence . . .
failed to show that the conditions of decedent’s employment placed him at a
greater risk of overheating than members of the general public not so employed.” The Commission, however, made no findings of
fact supporting this conclusion.
Instead, the only findings arguably related to the extreme conditions
issue were that although only a two-man crew was not normal operating
procedure, it was adequate for that job; the men were used to the work hours
and that type of work; the job was performed in temperatures cooler than
temperatures under which Mr. Reaves normally worked; Mr. Reaves had not
previously left a job site because of being hot; and “[t]he job performed at
the [International Paper] mill that day was easier than most of the work
decedent normally performed and the [International Paper] job was no hotter or
more fatiguing than any of their other 12-hour jobs.”
Thus,
all of the Commission’s findings on the issue of extreme conditions relate only
to its conclusion that “[t]he greater weight of the evidence showed that
decedent’s job duties at the [International Paper] mill in Franklin, from a
physical standpoint, were easier than most of the jobs he performed and that
decedent worked in the same temperatures as those to which he was normally
exposed.” We note that the Commission
did report that plaintiff’s expert witness as to industrial safety “was of the
opinion that on April 1, 2004, decedent was subjected to a work hazard, namely,
a hot and humid workspace, with poor ventilation.” The Commission also reported the conflicting
opinions of the medical experts as to whether the working conditions were
excessively hot or humid. The Commission
did not make findings resolving the issues suggested by this testimony except
as to find generally “that decedent’s death was not caused by extraordinary
exertion or by exposure to a greater hazard or risk than that to which decedent
was otherwise exposed.”
In
sum, the Commission’s findings of fact and conclusions of law address whether
Mr. Reaves was exposed to greater heat on the day of his death than he usually
encountered during a normal day on the job, an issue immaterial to the test
articulated in Dillingham. Where,
as here, “the findings of the Commission are based on a misapprehension of the
law, the case should be remanded so ‘that the evidence [may] be considered in
its true legal light.’“ Johnson v.
Southern Tire Sales & Serv., 358 N.C. 701, 705, 599 S.E.2d 508, 512
(2004) (quoting McGill v. Town of Lumberton, 215 N.C. 752, 754, 3 S.E.2d
324, 326 (1939)).
III
Plaintiff
additionally argues that the Commission erred in failing to make any
determination regarding whether inadequate training was a significant
contributing factor in Mr. Reaves’ death.
Plaintiff points to the testimony of Debra S. Meurs, the industrial safety expert, and plaintiff’s
expert witness, Dr. William Holt, as indicating that Mr. Templeman’s lack of
proper training in recognizing and reacting to work hazards resulted in an
inadequate response to Mr. Reaves’ complaints that ultimately contributed to
his death.
The
Commission made the following findings summarizing Ms. Meurs’ expert opinion:
26. Ms. Meurs was of the opinion that on
April 1, 2004, decedent was subjected to a work hazard, namely, a hot and humid
workspace, with poor ventilation.
According to Ms. Meurs, OSHA regulations required [IPS] to properly
train decedent and Mr. Templeman in the recognition and response to the
presence of work hazards, and no documentation exists that either decedent or
Mr. Templeman had received such training.
27. Ms. Meurs believed that Mr. Templeman’s
response to decedent’s complaint was inadequate, and that decedent should have
been taken to a medical facility. Mr.
Templeman’s response, according to Ms. Meurs, is attributable to his lack of
training, and his actions on April 1, 2004, contributed to decedent’s death.
Although we note that
Ms. Meurs was not competent to testify regarding medical causation,[Note 1] she was competent to testify
regarding industrial safety issues.
In
addition to Ms. Meurs, Dr. Holt testified that in his medical opinion, the
decision to take “Mr. Reaves to his work truck versus to an on-site medical
facility” was a contributing factor in Mr. Reaves’ death. The Commission made a finding reflecting part
of Dr. Holt’s medical opinion on this issue: “Dr. Holt believed that had
decedent been taken to an EMT or other medical professional when he complained
of feeling ill, decedent would have been properly examined and assessed and
appropriate treatment provided, including using a defibrillator if decedent had
suffered an arrhythmia.”
Despite
the findings acknowledging evidence regarding inadequate training and its role
in Mr. Reaves’ death, the Commission failed to make any ultimate findings as to
whether IPS properly trained Mr. Templeman about how to identify and respond to
work hazards or whether any lack of training led to an inadequate response that
was a significant contributing factor in Mr. Reaves’ death. “‘While the [Full] [C]ommission is not
required to make findings as to each fact presented by the evidence, it is
required to make specific findings with respect to crucial facts upon which the
question of plaintiff’s right to compensation depends.’“ Perry v. CKE Rests., Inc., ___ N.C.
App. ___, ___, 654 S.E.2d 33, 35-36 (2007) (quoting Gaines v. L.D. Swain
& Son, Inc., 33 N.C. App. 575, 579, 235 S.E.2d 856, 859 (1977)). “If the Full Commission’s findings of fact
are insufficient to allow this Court to determine the parties’ rights upon the
matters in controversy, the proceeding must be remanded to the Full Commission
for proper findings of fact.”
Defendants
contend that the Commission did, in fact, address the issue, pointing to the
Commission’s finding of fact and conclusion of law that Mr. Reaves’ death was
not “caused by the willful failure of defendant-employer to comply with any
statutory requirement.” It is, however,
apparent from review of the opinion and award that this finding and conclusion
was not intended to address the inadequate training issue, but rather related
to plaintiff’s claim pursuant to N.C. Gen. Stat. §97-12 (2007), which provides:
“When the injury or death is caused by the willful failure of the employer to
comply with any statutory requirement or any lawful order of the Commission,
compensation shall be increased ten percent (10%).”
Because
plaintiff asserted as part of her claim for compensation that the lack of
training was a significant contributing factor in Mr. Reaves’ death, the
Commission was required to make findings of fact and conclusions of law
resolving the issue presented. See
Vieregge, 105 N.C. App. at 638, 414 S.E.2d at 774. On remand, therefore, the Commission must
also make findings of fact and conclusions of law on this aspect of plaintiff’s
claim. Because we are remanding for
further findings of fact and conclusions of law, we need not address plaintiff’s
remaining arguments.
Reversed
and remanded.
Judges
WYNN and
NOTE
1. 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.”).