Dodson v. DUBOSE STEEL, INC.,

• Court: North Carolina Court of Appeals
• Writing for the Court: HUDSON.
• Citation: Dodson v. DUBOSE STEEL, INC.,, 582 S.E.2d 389, 159 N.C.App. 1 (N.C. App. 2003)
• Decision Date: 15 July 2003
• Docket Number: No. COA02-543.,COA02-543.
• Parties: Shelby J. DODSON, Widow and Personal Representative of the Estate of John E. Dodson, Deceased, Employee, Plaintiff, v. DUBOSE STEEL, INC., Employer, and American Manufacturers Mutual, Carrier, Defendants.

582 S.E.2d 389

159 NC App. 1

Shelby J. DODSON, Widow and Personal Representative of the Estate of John E. Dodson, Deceased, Employee, Plaintiff, v. DUBOSE STEEL, INC., Employer, and American Manufacturers Mutual, Carrier, Defendants.

No. COA02-543.

Court of Appeals of North Carolina.

July 15, 2003.

Lore & McClearen by R. James Lore, Raleigh, and Johnson & Parsons, P.A. by Dale P. Johnson, Clinton, for plaintiff-appellee.

Hedrick, Eatman, Gardner & Kincheloe, L.L.P. by Maura K. Gavigan and Erin D. Eveson, Raleigh, for defendant-appellants.

HUDSON, Judge.

Defendants Dubose Steel, Inc. (Dubose) and American Manufacturers Mutual appeal an opinion and award entered 18 January 2002 by the North Carolina Industrial Commission that awarded plaintiff medical expenses, death benefits and the statutory $2,000 toward burial expenses, for the injury that led to the death of her husband. For the reasons that follow, we affirm.

BACKGROUND

Plaintiff's decedent John Dodson (Dodson), was employed by defendant Dubose as a truck driver, and was driving a load of steel to Virginia for his employer on 27 September 1999. As a result of the events at issue here, Dodson was struck by a vehicle while outside of his truck, and fell to the pavement on his head. After several days without regaining consciousness, Dodson died. His widow Shelby Dodson, the plaintiff, filed claims for workers' compensation benefits due while Dodson was still alive, and for death benefits.

The claims were consolidated and heard 27 September 2000, and, in an opinion and award filed on 30 November 2000, Deputy Commissioner William C. Bost found and concluded that Dodson's injury and death arose out of and in the course of his employment, and awarded benefits to plaintiff.

In an opinion and award filed 18 January 2002 by Commissioner Bernadine Ballance, the Full Commission essentially re-wrote the findings of fact and conclusions of law, but awarded the same benefits. Defendants now appeal.

ANALYSIS

A. The Standard of Review

On appeal of a worker's compensation decision, we are "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). An appellate court reviewing a worker's compensation claim "does not have the right to weigh the evidence and decide the issue on the basis of its weight. The court's duty goes no further than to determine whether the record contains any evidence tending to support the finding." Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (citation and quotation marks omitted), reh'g denied, 350 N.C. 108, 532 S.E.2d 522 (1999). In reviewing the evidence, we are required, in accordance with the Supreme Court's mandate to construe the Workers' Compensation Act in favor of awarding benefits, to take the evidence "in the light most favorable to plaintiff." Id.

The Full Commission is the "sole judge of the weight and credibility of the evidence." Deese, 352 N.C. at 116, 530 S.E.2d at 553. Furthermore,

the Commission does not have to explain its findings of fact by attempting to distinguish which evidence or witnesses it finds credible. Requiring the Commission to explain its credibility determination and allowing the Court of Appeals to review the Commission's explanation of those credibility determinations would be inconsistent with our legal system's tradition of not requiring the fact finder to explain why he or she believes one witness or another or believes one piece of evidence is more credible than another.

Id. at 116-17, 530 S.E.2d at 553.

B. Appellants' Arguments

Defendants bring forward three questions presented, organized into two arguments in their brief. In the heading of Argument I, defendants refer to all but one of the nineteen assignments of error. In the body of the argument, however, defendants do not mention any specific findings by number, but argue generally that the evidence does not support that the Commission "found that [Dodson's] injury and subsequent death arose out of his employment." In identically worded assignments of error 1 though 12, defendants challenge findings of fact 5 through 17 as not being supported by the "competent evidence of record." Similarly, assignments of error 13 through 18 challenge, in identical language, conclusions of law 1 through 4, 6 and 7 as not supported by the evidence and as "contrary to law." Assignment of error 19 challenges the award. We do not believe that this argument complies with the Rules of Appellate Procedure sufficiently to bring forward challenges to any of the specific findings of fact, with the possible exceptions of numbers 11, 12 and 14 and conclusions 1, 2 and 4, which read as follows:

11. The root cause of the confrontation between Dodson and Campbell originated when Dodson, while moving with the traffic, merged into Campbell's lane of traffic forcing Campbell out of his lane. Neither Dodson nor Campbell knew each other prior to this incident. There is no evidence that Dodson intended to force Campbell out of his lane of travel. At the time that the root cause incident occurred, Dodson was driving his truck in the ordinary course of his business for defendant-employer, Dubose Steel, Inc. which was the basic nature of his work as a truck driver. Defendants admit that at the time Dodson was struck by Campbell's vehicle he was an employee of Dubose Steel, Inc.

12. John Dodson's injuries and death resulted from an assault upon his person by a vehicle operated by Troy Campbell. Although there had been gestures and verbal exchanges between Campbell and Dodson(which neither of them could hear), based on the greater weight of the evidence, Dodson did not have a wilful intent to injure or kill Campbell when he exited his vehicle and walked toward the driver's side of Campbell's vehicle. Dodson appeared to have acted spontaneously.

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14. Dodson's injury and death arose out of his employment. As a result of his injury and subsequent death, Dodson and now his estate have incurred ambulance and medical bills for treatment for the time that he lived prior to death, as well as burial expenses in excess of $2,000 ...

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CONCLUSIONS OF LAW

1. The injury to John Dodson occurring on September 27, 1999 and the resulting death occurring on October 4, 1999 constituted a compensable injury by accident arising out of and in the course of Dodson's employment with Dubose Steel, Inc. N.C. Gen Stat. §§ 97-2(6); 97-38.

2. John Dodson died as a result of an assault on his person by a vehicle driven by Troy Campbell. The assault originated from an argument based on the manner in which Dodson drove his truck in the course of his employment. Hegler v. Cannon Mills, 224 N.C. 669, 31 S.E.2d 918 (1944).

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4. Decedent's employment as a long distance truck driver caused him to spend the majority of his working hours traveling on highways and streets. Due to the nature of decedent's work, the risk of driver error causing tempers to flare among strangers on the busy highways was increased. Dodson and Campbell did not know each other so the inciting incident was not due to personal reasons. "Assaults arise out of the employment either if the risk of assault is increased because of the nature or setting of the work, or if the reason for the assault was a quarrel having its origin in the work." A truck driver's risk of being struck by a vehicle is a risk greater than that of the general public. 1 Arthur Larson and Lex K. Larson, Larson's Workers' Compensation, Desk Edition, § 8 Scope (2000).

Thus, we will first discuss whether the evidence supports these findings and conclusions.

After a careful review according to the standard articulated by the Supreme Court, we conclude that evidence in the record supports the Commission's findings 11, 12, and 14. First, Troy Campbell, the motorist who hit Dodson, testified that his vehicle and Dodson's tractor-trailer were trying to merge into one lane of travel from the two in which they were traveling, when Dodson's truck forced Campbell off the road, while Campbell was "laying on the horn when he [Dodson] was coming over." At the next stoplight, according to Campbell and witnesses Scott Cash and Mark Davis, Dodson got out of his truck and started walking toward Campbell, banging his fist onto the hood of Campbell's vehicle, at which point Campbell drove forward, striking Dodson. Several days later Dodson died from his injuries. Campbell could not hear what, if anything, Dodson said while walking toward Campbell's vehicle, and Campbell testified that Dodson "really didn't have any kind of facial expression." We believe that this evidence, among much more, fully supports the above findings of fact to the effect that Dodson's injury and death were rooted in the driving incident.

The Full Commission chose to accept certain testimony as credible, which is within its authority, even though there may be evidence from which one could draw a contrary inference. Deese, 352 N.C. at 116, 530 S.E.2d at 553. As we indicated earlier, the Full Commission is the "sole judge of the weight and credibility of the evidence" and need not explain its findings of fact to justify which evidence or witnesses it finds credible. Id. We conclude that ample evidence in the record supported the Commission's findings of fact.

Next, we examine whether the findings of fact support the Commission's conclusions of law. We believe that they do. Findings of fact numbers 11, 12, and 14, among others, support the Commission's legal conclusions and award regarding the root cause of Dodson's injury.

In their second "Question Presented," briefed as part B of Argument I, the defendants contend that the Commission erroneously analyzed this case according to the law pertaining to workplace assaults. Defendant's argue that the Commission's...