Brooks v. City of Winston-Salem, COA17-1208

• Decision Date: 15 May 2018
• Docket Number: No. COA17-1208,COA17-1208
• Citation: 259 N.C.App. 433,816 S.E.2d 260
• Court: North Carolina Court of Appeals
• Parties: Larry BROOKS, Employee, Plaintiff v. CITY OF WINSTON–SALEM, Employer, Self–Insured, Defendant.

259 N.C.App. 433

816 S.E.2d 260

Larry BROOKS, Employee, Plaintiff

v.CITY OF WINSTON–SALEM, Employer, Self–Insured, Defendant.

No. COA17-1208

Court of Appeals of North Carolina.

Filed: May 15, 2018

Oxner + Permar, PLLC, by Kathy Stewart, for plaintiff-appellant.

Spilman Thomas & Battle, PLLC, Winston–Salem, by Kevin B. Cartledge, for defendant-appellee.

DAVIS, Judge.

In this appeal, we revisit the issue of when an employee’s injury is deemed to have arisen out of his employment under the North Carolina Workers’ Compensation Act. Larry Brooks appeals from an opinion and award of the North Carolina Industrial Commission denying his claim for workers’ compensation benefits. Because we conclude that Brooks’ injury occurred solely as a result of his own idiopathic condition rather than due to conduct traceable to his employer, we affirm.

Factual and Procedural Background

In October 2015, Brooks was employed by the City of Winston–Salem (the "City") as a Senior Crew Coordinator in the Utilities Department. He supervised a team of four employees who were performing water and sewer line repairs throughout Winston–Salem. The City allowed Brooks and the other employees on his team to take two 15–minute breaks and one 30–minute lunch break each day. As the supervisor of the group, Brooks was "responsible for deciding whether and when breaks would be taken, and [was] responsible for the crew during breaks."

On 22 October 2015, Brooks was with his crew working at a jobsite. At some point during the day, Brooks and the other employees decided to take a lunch break at a nearby Sheetz gas station. Brooks ate his lunch in the City’s truck while the other employees sat at a table outside the gas station. After he finished eating his meal, Brooks briefly joined the group at the table and then entered the gas station for the purpose of purchasing cigarettes.

Inside the gas station, Brooks decided to buy an e-cigarette, a type of cigarette he had never previously smoked. He returned to the City’s truck after making the purchase and began smoking the e-cigarette while sitting inside the vehicle. At all relevant times, the City maintained a "[t]obacco [f]ree" policy, which provided that "[s]moking cigarettes or e-cigarettes inside City vehicles or on City property [wa]s prohibited...."

As Brooks "ignited and inhaled the e-cigarette," he began coughing "uncontrollably." In order to get some fresh air, he opened the vehicle’s door and stepped out of the truck while continuing to cough

. Brooks then "passed out and fell to the ground." He landed on the cement curb, causing injury to his right hip, back, and head.

Brooks was diagnosed by Dr. Dahari Brooks, a board-certified orthopedist, with "L3, L4 transverse process fractures." Due to these injuries, he was assigned light duty work restrictions, which prevented him from returning to work in his prior position.

The City filed a Form 19 (Employer’s Report of Employee’s Injury) on 29 October 2015 and a Form 61 (Denial of Workers’ Compensation Claim) on 19 November 2015. On 28 December 2015, Brooks filed a Form 18 (Notice of Accident), alleging that "[w]hen [he] stepped out of his truck he passed out (from e-cig) causing him to fall to the ground injuring his back."

On 13 July 2016, a hearing was held before Deputy Commissioner Michael T. Silver. Brooks and Julie Carter, a risk manager working for the City, each provided testimony. Depositions were later taken of Dr. Brooks and Phillip Kelley, a physician’s assistant who had treated Brooks following his injury.

On 21 November 2016, the deputy commissioner issued an opinion and award determining that "[Brooks’] injuries were not the result of an injury by accident arising out of and in the course of employment...." Brooks appealed to the Full Commission.

On 19 July 2017, the Full Commission issued an opinion and award affirming the deputy commissioner’s decision and denying Brooks’ claim for benefits. On 31 July 2017, Brooks filed a timely notice of appeal.

Analysis

Appellate review of an opinion and award of the Industrial Commission is typically "limited to consideration of whether competent evidence supports the Commission’s findings of fact and whether the findings support the Commission’s conclusions of law." Philbeck v. Univ. of Mich. , 235 N.C. App. 124, 127, 761 S.E.2d 668, 671 (2014) (citation and quotation marks omitted). "The findings of fact made by the Commission are conclusive on appeal if supported by competent evidence even if there is also evidence that would support a contrary finding. The Commission’s conclusions of law, however, are reviewed de novo ."

Morgan v. Morgan Motor Co. of Albemarle , 231 N.C. App. 377, 380, 752 S.E.2d 677, 680 (2013) (internal citations omitted), aff’d per curiam , 368 N.C. 69, 772 S.E.2d 238 (2015).

In its opinion and award in the present case, the Commission made the following pertinent findings of fact:

1. On October 22, 2015, [Brooks] was employed by [the City] as a Senior Crew Coordinator in the Utilities Department. In that capacity, [Brooks] was a working supervisor over a crew of five, including himself, which performed water and sewer line repairs throughout the city.

2. [Brooks’] work day started at 7:30 a.m. and was scheduled to end at 4:00 p.m., although he ‘‘worked over a lot." [Brooks] and his crew were entitled to take two 15–minute breaks and one 30–minute lunch break each day. While it is unclear from the record whether these were paid or unpaid breaks, [Brooks] was, as the supervisor, responsible for deciding whether and when breaks would be taken, and responsible for the crew during breaks.

3. On October 22, 2015, [Brooks] reported to work at 7:30 a.m., spoke to his supervisor to get his daily assignment, and then left out at approximately 8:00 a.m. with his crew in one of [the City]’s trucks to travel to that day’s job site. Later that day, [Brooks] and his crew decided to take their lunch break at a Sheetz gas station which was located in close proximity to where they were working. [Brooks] ate his lunch in the truck, while his co-workers sat at a table outside the gas station. [Brooks] testified that they probably took more than 30 minutes for lunch, but they had not taken their 15–minute break that morning. [Brooks] finished eating his meal in the truck, joined his crew briefly, and then went into the gas station to purchase cigarettes. [Brooks] purchased an electronic cigarette (or e-cigarette) which he usually does not smoke. [Brooks] then walked back to [the City]’s truck, got inside, and began to smoke the e-cigarette. Smoking cigarettes or e-cigarettes inside City vehicles or on City property is prohibited by [the City]’s Tobacco Free Policy. When [Brooks] ignited and inhaled the e-cigarette, "it just cut off [his ]wind," and he began coughing uncontrollably. "Out of instinct," he opened the door and stepped out of the truck to get some air, all the while continuing to cough

. After he had stepped out of the truck and while he was standing on the ground, coughing uncontrollably, [Brooks] passed out and fell to the ground. [Brooks] did not fall from the truck onto the ground.

4. EMS was called to the scene and [Brooks’] vital signs were taken. According to EMS records, [Brooks] had a blood pressure of 194/120 and a blood sugar level of 312, both of which are extremely elevated readings.

5. [Brooks] declined EMS transport to the emergency room and, instead, a co-worker took him to Novant Health Urgent Care & Occupational Medicine, where he was seen by Phillip Kelley, P.A. for injury to his right hip, back and head. [Brooks] informed Mr. Kelley that he had passed out after smoking an e-cigarette. [Brooks’] blood pressure remained elevated at 182/112, which Mr. Kelley testified is "very, very high" and constitutes "grade three hypertension," the highest grade there is. [Brooks] also informed Mr. Kelley that he was a known diabetic, but that he had been out of his medication since April. Mr. Kelley advised [Brooks] that he should be seen at the emergency room for further work-up regarding his syncope and extremely elevated blood pressure and blood sugar readings. [Brooks] refused,

telling Mr. Kelley that he thought he had been off his diabetes

medication for too long and that he would be ok once he started taking them again. Mr. Kelley renewed [Brooks’] diabetes medication and discharged him against medical advice with the following diagnoses: "syncope, unspecified syncope type; contusion, back, right, initial encounter; diabetes type 2, uncontrolled; acute post-traumatic headache, not intractable; shortness of breath; glucosuria; elevated blood pressure reading without diagnosis of hypertension."

6. On October 22, 2015, [Brooks] completed a City of Winston–Salem Accident/Incident Report in which he described the accident as follows: "I developed a

cough

so hard I pass (sic) out standing. Free fell backwards onto a curb hurting backside back and head. More so my back cause it landed on curb." In his answers to interrogatories, [Brooks] described his injury as follows: "While sitting in the truck smoking an E-cig I started to choke. I got out to get air but I was coughing so much I passed out. I fell backwards on the cement curb causing my lower back and head to strike the ground."

7. On December 28, 2015, after [the City] had denied [Brooks’] claim, [Brooks] filed a Form 18 Notice of Accident to Employer and Claim of Employee, Representative, or Dependent in which he described the accident as follows: "When Employee stepped out of his truck he passed out (from e-cig) causing him to fall to the ground injuring his back."

8. [Brooks] was diagnosed with L3, L4 transverse process fractures and came under the care of Dr. Dahari Brooks, a board-certified orthopedist, who assigned light duty work restrictions which preclude [Brooks] from returning to work in the position he was performing on the date of the injury. As of the date of the hearing before the Deputy Commissioner, [Brooks] remained...