D'Aquisto v. Mission Health System

• Decision Date: 05 July 2005
• Docket Number: No. COA04-1259.,COA04-1259.
• Citation: 614 S.E.2d 583
• Court: North Carolina Supreme Court
• Parties: Caroline D'AQUISTO, Plaintiff, v. MISSION ST. JOSEPH'S HEALTH SYSTEM, Employer, Cambridge Integrated Services, Servicing Agent, Defendants.

Page 583

614 S.E.2d 583

Caroline D'AQUISTO, Plaintiff, v. MISSION ST. JOSEPH'S HEALTH SYSTEM, Employer Cambridge Integrated Services, Servicing Agent, Defendants.

No. COA04-1259.

Court of Appeals of North Carolina.

July 5, 2005.

Appeal by Defendants from Opinion and Award entered 20 May 2004 by the North Carolina Industrial Commission. Heard in the Court of Appeals 6 June 2005.

Ganly & Ramer, P.L.L.C., by Thomas F. Ramer, Asheville, for plaintiff-appellee.

Van Winkle, Buck, Wall, Starnes & Davis, P.A., by Allan R. Tarleton, Asheville, for defendants-appellants.

WYNN, Judge.

Under the Workers' Compensation Act, an injury is only compensable if it is the result of an "accident arising out of and in the course of the employment [.]" N.C. Gen.Stat. § 97-2(6) (2004). In this case, the employer acknowledges that an assault upon Plaintiff-employee occurred "in the course of" her employment but argues that it did not "arise out of" her employment. For the reasons given in Wake County Hosp. Sys., Inc. v. Safety Nat'l Cas. Corp., 127 N.C.App. 33, 487 S.E.2d 789, disc. review denied, 347 N.C. 410, 494 S.E.2d 600 (1997), we hold that the full Commission properly concluded that the assault "arose out of" Plaintiff's employment. We further uphold the full Commission's Opinion and Award on the remaining issues presented on appeal.

The record on appeal shows that on 30 April 2001, Plaintiff Caroline D'Aquisto, a cancer analyst at Defendant Mission St. Joseph's Health System ("Mission Health System"), arrived at her office at approximately 6:00 a.m. At approximately 7:15 a.m. Ms. D'Aquisto left her office on the first floor to go to the morgue on the second floor. She carried paperwork needed to confirm the causes of death of individuals who had died the previous week.

While Ms. D'Aquisto waited in front of the first floor main staff elevators, a man wearing green scrubs approached her. After exchanging a few words, the man walked up to her and said, "Selene . . . We're going to finish it." Ms. D'Aquisto testified that he grabbed her breasts and nipples, turned them, and brought her to her knees. Ms. D'Aquisto broke away and ran into the stairwell. But the man pursued her, grabbed her from behind, grabbed her hair and her groin area, and pulled her down the steps. Ultimately, Ms. D'Aquisto broke free, ran up the steps to the second floor, opened the door, and fell into the arms of a co-worker, A.J. Ward.

Mr. Ward, a twenty-one year employee at Mission Health System, corroborated Ms. D'Aquisto's testimony, stating that she came out of the stairwell with a man behind her "[a]nd it seemed like he was over the top of her trying to — trying to grab her again[.]" Ms. D'Aquisto fell into his arms and said "A.J., I don't know the man." The man ran away.

After the incident, Ms. D'Aquisto returned to her office and provided an account of the assault to security personnel. Ms. D'Aquisto then filled out a security incident report. Later that morning, Ms. D'Aquisto reported the incident to the Asheville Police Department.

The next day, Ms. D'Aquisto met with Linda Anderson, director of post-op surgical services, and Jerri Mitchell, director of endoscopy. Ms. Anderson testified that Ms. D'Aquisto was very upset, had several torn fingernails, scrapes on her shins, and a "hand print" bruise on a breast. Ms. Mitchell testified that she observed "some bruises on her chest and on her breasts and they were pretty impressive."

After the incident, Mission Health System sent out an e-mail alerting employees that an employee had been "inappropriately touched." The employee newspaper later described it as a more violent attack.

On 21 May 2001, Mission Health System security notified Ms. D'Aquisto that the alleged attacker had been spotted on the hospital premises and she and Mr. Ward were asked to identify him. Mr. Ward positively identified the man, who was later determined to be Charles Greene, a sitter¹ for Diversified Personnel. Mr. Greene was later charged with assault and found not guilty.

On 25 May 2001, Karen Blicher, Director of Mental Health Education at Mountain Area Health Education Center specializing in women's psychological issues including sexual assault, evaluated Ms. D'Aquisto. Ms. Blicher testified that "by the end of that first interview it was very clear to me that she was experiencing posttraumatic stress disorder of the acute kind." On 29 May 2001, Ms. Blicher recommended that Ms. D'Aquisto take a week off of work.

On 31 May 2001, Dr. Steven Mendelsohn, a board-certified internist and rheumatologist, evaluated Ms. D'Aquisto. He found:

That her neck was very stiff compared to before [the assault]. She had a lot of muscle spasms around the neck, extending across the shoulders and into the back. She had a slight loss of movement in both shoulders. And her upper and lower back were quite sore. She had diffuse old bruises in her chest wall, and her lower back was quite tender.

Dr. Mendelsohn prescribed an anti-depressant, anti-inflammatories, pain medication, and sleeping pills. On 13 June 2001, Dr. Mendelsohn gave Ms. D'Aquisto a written note taking her out of work for a month.

On 4 June 2001, Dr. Karen Dedman, a family-practice physician, examined Ms. D'Aquisto who reported that she "was having vomiting, was terrified, not sleeping, roaring in her ears, coughing to the point of vomiting." Dr. Dedman observed fading bruises on her breast, upper abdomen, and in her left groin. Dr. Dedman diagnosed Ms. D'Aquisto with "severe acute stress reaction" and felt she was unable to work. Dr. Dedman testified that as a result of the assault Ms. D'Aquisto "had a severe stress reaction psychologically[,] . . . an exacerbation of her underlying left neck pain with underlying degenerative disk disease[,]" psoriasis, psoriatic arthritis, sleep disorder, and panic attacks.

In September 2001, Ms. D'Aquisto began seeing Dr. William Anixter, a psychiatrist. After the initial visits, Dr. Anixter diagnosed Ms. D'Aquisto with posttraumatic stress disorder, chronic type. Upon continued treatment, Dr. Anixter also diagnosed Ms. D'Aquisto with depression which was caused by many events, which included the assault, criminal trial, her sister's death, and her husband's disappearance. Dr. Anixter testified that Ms. D'Aquisto was unable to work and prescribed for her various anti-depressants and anti-anxiety medication.

Dr. Claudia Coleman, a psychologist, examined Ms. D'Aquisto at the request of Mission Health System's counsel. Dr. Coleman performed two tests on Ms. D'Aquisto and examined her history, but did not have any notes from Dr. Anixter at the time she made her report nor did she have an accurate history of Ms. D'Aquisto's past treatment for depression. At the time of the examination, Ms. D'Aquisto was taking a variety of medications. Dr. Coleman was unable to give an opinion to any degree of medical certainty about the origin of Ms. D'Aquisto's panic attacks. Dr. Coleman opined that Ms. D'Aquisto did not have posttraumatic stress disorder, but "anxiety disorder, not otherwise specified, in partial remission with dependent personality traits."

This case came for hearing before Deputy Commissioner Edward Garner, Jr. who awarded Ms. D'Aquisto ongoing total disability compensation, medical and psychological expenses, and ordered Mission Health System to pay costs and attorney's fees. On 20 May 2004, the full Commission filed an Opinion and Award affirming the prior award. Defendants-Mission Health System and its insurance carrier servicing agent, Cambridge Integrated Services, Inc. — appealed.

On appeal², Defendants argue that the full Commission erred by (1) concluding that Ms. D'Aquisto's assault arose out of her employment; (2) disregarding competent evidence; (3) making findings of fact unsupported by competent evidence; and (4) imposing sanctions against Defendants. Defendants also argue that the Industrial Commission's rules and standards of assessing evidence deprived Defendants of due process. We disagree.

First, Defendants argue that the full Commission erred in concluding that Ms. D'Aquisto's assault arose out of her employment.

Under the Workers' Compensation Act, an injury is compensable only if it is the result of an "accident arising out of and in the course of the employment[.]" N.C. Gen.Stat. § 97-2(6) (2004). "Whether an injury arose out of and in the course of employment is a mixed question of law and fact, and the Industrial Commission's findings in this regard are conclusive on appeal if supported by competent evidence." Culpepper v. Fairfield Sapphire Valley, 93 N.C.App. 242, 247, 377 S.E.2d 777, 780, aff'd, 325 N.C. 702, 386 S.E.2d 174 (1989) (citing Gallimore v. Marilyn's Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977)). The employee must establish both the "arising out of" and "in the course of" requirements to be entitled to compensation. Roberts v. Burlington Indus., Inc., 321 N.C. 350, 354, 364 S.E.2d 417, 420 (1988). Defendants conceded at the hearing that the assault occurred "in the course of" Ms. D'Aquisto's employment, but contend that it did not "arise out of" her employment.

The words "arising out of the employment" refer to the origin or cause of the accidental injury. Roberts, 321 N.C. at 354, 364 S.E.2d at 420. Thus, our first inquiry "is whether the employment was a contributing cause of the injury." Id. at 355, 364 S.E.2d at 421.

The record on appeal shows that as a part of her regular job duties Ms. D'Aquisto had to leave her office and walk to the morgue, which was located on another floor. Therefore, her reason for walking to the morgue that day was for the purpose of performing her job. See Culpepper, 93 N.C.App. at 248-49, 377 S.E.2d at 781 (the plaintiff was sexually assaulted after she stopped to help a guest with car trouble because she had been directed to always be helpful to guests; since her decision to stop had its origin in her employment the injuries arose out of...