Hill v. Fed. Express Corp.

• Decision Date: 01 July 2014
• Docket Number: No. COA 14–60.,COA 14–60.
• Citation: 760 S.E.2d 70
• Court: North Carolina Court of Appeals
• Parties: Jimmy HILL, Employee, Plaintiff, v. FEDERAL EXPRESS CORPORATION, Employer, Self–Insured (Sedwick CMS, Third Party Administrator), Defendant.

760 S.E.2d 70

Jimmy HILL, Employee, Plaintiff,

v. FEDERAL EXPRESS CORPORATION, Employer, Self–Insured(Sedwick CMS, Third Party Administrator), Defendant.

No. COA 14–60.

Court of Appeals of North Carolina.

July 1, 2014.

Appeal by plaintiff from the Opinion and Award entered 30 August 2013 by the North Carolina Industrial Commission. Heard in the Court of Appeals 5 May 2014.

Oxner Thomas & Permar, Winston–Salem, by Justin B. Wraight, for plaintiff-appellant.

Hedrick Gardner Kincheloe & Garofalo, LLP, by Brooke M. Lewis, and M. Duane Jones, Charlotte, for defendant-appellee.

STEELMAN, Judge.

The Commission's findings of fact were supported by competent evidence and its findings supported its conclusions of law. The Commission did not abuse its discretion in its determinations of the weight and credibility of the evidence, and did not employ an overly narrow interpretation of the Workers Compensation Act in weighing the evidence.

I. Factual and Procedural History

Jimmy Hill (plaintiff) was born in 1953 and was 59 at the time of the hearing in this case. In December 2011 plaintiff had been employed as a courier for Federal Express Corporation (defendant) for over 13 years. His duties included loading and delivering packages. As a courier, plaintiff was required to lift 75 pound packages and delivered 80 to 90 packages a day. On 23 December 2011 plaintiff arrived at work shortly before 8:00 a.m. Upon arrival at work, plaintiff checked the lights and brakes in his truck, performed stretching exercises, and began sorting and arranging the packages in his truck.

On a normal day, couriers were required to deliver packages in order of priority, based on factors such as the need to deliver refrigerated medications in a timely manner or the fact that a customer had paid for express delivery. To accomplish this, plaintiff might drive past some delivery locations, and return to them after he completed the priority deliveries. On 23 December 2011, two factors led defendant to abandon its usual prioritizing. First, because it was the last business day before Christmas, plaintiff had so many deliveries that he had to place packages on the floor of his truck. Secondly, a plane bringing packages for delivery was delayed, so that instead of leaving the warehouse at 8:15, plaintiff did not leave until about 9:00 a.m. Plaintiff's supervisor agreed that plaintiff should deliver packages on the floor as soon as possible, and that he could use a “straight line” delivery route, stopping at each delivery location as he came to it, even if this resulted in delayed delivery of packages to customers who had contracted for early morning delivery.

Between 9:00 and 11:00 a.m., plaintiff delivered about 20 packages. Shortly after 11:00 a.m., plaintiff began experiencing impaired vision and significant difficulties with motor control. He was able to park at a nearby fire station, and was taken by ambulance to Moses Cone Hospital. Plaintiff was diagnosed with a stroke cause by a carotid dissection, which is a tear in a blood vessel. Plaintiff was treated in the hospital for about five days, followed by a period of rehabilitative therapy. Plaintiff made a good recovery, but as of the time of the hearing he was still experiencing cognitive and physical effects of the stroke, and had not been able to return to work.

Plaintiff filed a claim for workers compensation benefits, which defendant denied on the grounds that plaintiff had experienced “no work related accident resulting in injury.” The Full Commission issued its Opinion and Award on 30 August 2013, denying plaintiff's claim for workers compensation benefits. The Commission concluded that “plaintiff's job duties as a courier for FedEx on December 23, 2011 were not a significant factor in his development of a carotid dissection and did not cause the carotid dissection that led to his stroke.”

Plaintiff appeals.

II. Standard of Review

Appellate review of an Industrial Commission order 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 has sole responsibility for evaluating the weight and credibility to be given to the record evidence. Id. (citation omitted). Findings that are not challenged on appeal are “presumed to be supported by competent evidence” and are “conclusively established on appeal.” Johnson v. Herbie's Place, 157 N.C.App. 168, 180, 579 S.E.2d 110, 118 (2003). The “Commission's conclusions of law are reviewed de novo.” McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 701 (2004) (citation omitted).

The “claimant in a workers' compensation case bears the burden of initially proving ‘each and every element of compensability’ ... by a ‘greater weight’ of the evidence or a ‘preponderance’ of the evidence.” Adams v. Metals USA, 168 N.C.App. 469, 475, 608 S.E.2d 357, 361 (2005) (quoting Whitfield v. Laboratory Corp. of Am., 158 N.C.App. 341, 350, 581 S.E.2d 778, 784 (2003), and Phillips v. U.S. Air, Inc., 120 N.C.App. 538, 541–42, 463 S.E.2d 259, 261 (1995)). “To establish ‘compensability’ ... a ‘claimant must prove three elements: (1) [t]hat the injury was caused by an accident; (2) that the injury arose out of the employment; and (3) that the injury was sustained in the course of employment.’ ” Clark v. Wal–Mart, 360 N.C. 41, 43, 619 S.E.2d 491, 492 (2005) (quoting Gallimore v. Marilyn's Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977)). In this case the parties disagree about whether plaintiff presented evidence that (1) his employment bore a causal relationship to his carotid dissection, and (2) whether on 23 December 2011 there was an interruption of plaintiff's normal work routine and the introduction of unexpected or unusual circumstances such that the Commission might find that he suffered an injury by “accident.”

“Our Supreme Court has defined the term ‘accident’ as used in the Workers' Compensation Act as ‘an unlooked for and untoward event which is not expected or designed by the person who suffers the injury.’ The elements of an ‘accident’ are the interruption of the routine of work and the introduction thereby of unusual conditions likely to result in unexpected consequences. Of course, if the employee is performing his regular duties in the ‘usual and customary manner,’ and is injured, there is no ‘accident’ and the injury is not compensable.” Porter v. Shelby Knit, Inc., 46 N.C.App. 22, 26, 264 S.E.2d 360, 363 (1980) (quoting Hensley v. Cooperative, 246 N.C. 274, 278, 98 S.E.2d 289, 292 (1957), and citing Pardue v. Tire Co., 260 N.C. 413, 132 S.E.2d 747 (1963), and O'Mary v. Clearing Corp., 261 N.C. 508, 135 S.E.2d 193 (1964)).

In Gunter v. Dayco Corp., 317 N.C. 670, 346 S.E.2d 395 (1986), our Supreme Court upheld a workers' compensation award where the claimant injured his arm while performing “twisting movements” shortly after starting a new job requiring these unaccustomed movements. Similarly, in Salomon v. Oaks of Carolina, 217 N.C.App. 146, 718 S.E.2d 204 (2011), we upheld the Commission's determination that a nursing assistant suffered an injury by accident where her injury was caused by a patient's unusual and unexpected resistance to the plaintiff's care. However, an injury is not the result of an “accident” simply because it occurs during a challenging workday in which the claimant performs his or her usual duties under more difficult conditions. See, e.g., Southards v. Motor Lines, 11 N.C.App. 583, 585, 181 S.E.2d 811, 813 (1971) (holding the Commission'sfindings insufficient to support award, given that the “fact that plaintiff was handling a different commodity than usual, without more, and that the weather was hot, are not enough to satisfy the requirement of an ‘interruption of the work routine and the introduction of unusual conditions likely to result in unpredicted consequences [.]’ ... Nor is the mere fact that plaintiff was in a hurry [.]”) (citing Gray v. Storage, Inc., 10 N.C.App. 668, 179 S.E.2d 883 (1971)).

III. Commission's Findings of Fact

Plaintiff's first argument challenges the evidentiary support for the Commission's findings concerning whether the circumstances of plaintiff's employment on 23 December 2011 constituted “an unlooked for and untoward event” or “interruption of the routine of work and the introduction thereby of unusual conditions likely to result in unexpected consequences.” Shay v. Rowan Salisbury Sch., 205 N.C.App. 620, 624, 696 S.E.2d 763, 766 (2010) (citation omitted). Plaintiff argues that the Commission erred in making findings on this issue that were not supported by competent evidence. We disagree.

The Commission's findings about the circumstances of plaintiff's job on 23 December 2011 included the following:

1. As of the date of the hearing before the Deputy Commissioner, plaintiff was 59 years old and had been employed by defendant for 14 years as a courier[.] ...

2. As a courier, plaintiff was required to load his truck, deliver packages, and pick up packages. Plaintiff typically handled small and large packages of varying weights. He testified that he lifted packages weighing between 75 and 150 pounds, and it was not unusual for plaintiff to deliver 85 to 90 packages a day.

...

4, In December 2011, plaintiff was driving a sprinter truck.... [He] was familiar with the operation of the truck[.] ...

5. Plaintiff had worked as a courier for defendant during the Christmas season for many years, and he testified that the Christmas season is always a busy time for FedEx couriers. Plaintiff had not driven the particular route he was driving on December 23, 2011 during prior Christmas seasons; however, he had been driving this particular route since his old route had been switched over to the new FedEx hub. The only difference between the two routes that plaintiff was...