Hunt v. Pub. Sch. of Robeson Cnty.
| Decision Date | 03 April 2012 |
| Docket Number | No. COA11–1110.,COA11–1110. |
| Court | North Carolina Court of Appeals |
| Parties | James A. HUNT, Employee, Plaintiff v. PUBLIC SCHOOLS OF ROBESON COUNTY and North Carolina Department of Public Instruction, Employer, Self–Insured (Corvel Corporation, Third–Party Administrator), Defendants. |
OPINION TEXT STARTS HERE
Appeal by defendants from opinion and award entered 28 June 2011 by the North Carolina Industrial Commission. Heard in the Court of Appeals 22 February 2012.
Hardison & Cochran, P.L.L.C., by Benjamin T. Cochran and John Paul Godwin, for the plaintiff.
Roy Cooper, Attorney General, by Lora C. Cubbage, Assistant Attorney General, for the defendants.
The Public Schools of Robeson County and the North Carolina Department of Public Instruction (collectively “Defendants”) appeal from an Opinion and Award of the North Carolina Industrial Commission (“the Full Commission”) awarding temporary total disability compensation to James A. Hunt (“Plaintiff”) after he was shot in his car on his way to work. We must determine whether the Full Commission erred by finding and concluding that Plaintiff's injury arose out of and in the course of his employment. After a review of the record, we affirm.
Plaintiff was the principal at Fairmont Middle School during the 2008–2009 school year. On the morning of 9 April 2009, as Plaintiff was driving his car from his home in Lumberton to his job at Fairmont Middle School, an unknown assailant in a truck pulled alongside Plaintiff and shot him in the face and hand. Plaintiff did not see who shot him. At the time Plaintiff was shot, he was talking to Terry Brown, his administrative intern and curriculum coach, on a cell phone that was provided by his employer. Plaintiff and Ms. Brown were discussing various school-related issues, including new technology for the school and a disciplinary situation. As a result of the shooting, Plaintiff sustained injuries to his face, mouth, teeth, and right hand, and underwent multiple procedures and plastic surgeries.
Plaintiff was employed as an administrator with Public Schools of Robeson County (“Employer”) pursuant to a contract for the term commencing 1 July 2007 and ending 30 June 2011. Plaintiff's employment contract stated, in relevant part, “The Employee shall be paid in accordance with state salary schedule applicable to the position assigned in paragraph 4 above, together with any applicable local supplement (including travel allowance) for services rendered.” The contract also stated, “This contract contains the entire agreement and understanding of the parties regarding the employment of the employee by the Board.” Pursuant to his employment contract, Plaintiff was paid a travel allowance twice a year in the amount of $594.08, after taxes.
Plaintiff testified he believed he was shot due to his role as a school administrator. Plaintiff was active in the community and was involved in anti-gang activities such as participating in anti-gang rallies, a “community workday” with parents, and having an anti-gang group make a presentation at Fairmont Middle School. Plaintiff also stated he had received threats from some of the parents of his students and was suspicious of staff members whom he had to discipline. Plaintiff's shooting was investigated by Detective Dru Martin. Although a full investigation was conducted and many school and non-school related leads were followed, no conclusive evidence was produced as to who shot Plaintiff or why he was shot.
On 4 May 2009, Plaintiff filed a workers' compensation claim. Employer denied Plaintiff's claim on 20 May 2009 because Plaintiff's injury “was not a result of an accident” and “did not arise out of and in the course and scope of. employment[.]” Following Plaintiff's request for a hearing, a hearing was held on 24 March 2010 before Deputy Commissioner Phillip A. Baddour, III. By an Opinion and Award filed on 10 December 2010, Deputy Commissioner Baddour concluded Plaintiff sustained an injury by accident arising out of and in the course and scope of his employment. Defendants appealed to the Full Commission. On 28 June 2011, the Full Commission filed an Opinion and Award affirming the Deputy Commissioner's decision with modifications. The Full Commission concluded, inter alia, that “Plaintiff suffered a compensable injury by accident while in the course and scope of employment with Defendant–Employer on April 9, 2009” and awarded Plaintiff temporary total disability compensation. Defendants appeal from this Opinion and Award.
On appeal, Defendants contend the Full Commission erred by finding and concluding that Plaintiff's injury on 9 April 2009 arose out of and in the course of his employment. We disagree.
“[O]n appeal from an award of the Industrial Commission, review is 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.” Richardson v. Maxim Healthcare/Allegis Group, 362 N.C. 657, 660, 669 S.E.2d 582, 584 (2008) (citation omitted), rehearing denied,363 N.C. 260, 676 S . E.2d 472 (2009). “[T]he Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.” Id. (quotation omitted). “[T]he Commission's findings of fact are conclusive on appeal when supported by any competent evidence, even though there be evidence that would support findings to the contrary and may be set aside only when there is a complete lack of competent evidence to support them.” Nobles v. Coastal Power & Elec., Inc., ––– N.C.App. ––––, ––––, 701 S.E.2d 316, 319 (2010) (citations and quotation marks omitted). “However, the Commission's conclusions of law are reviewed de novo.” Id. (citation omitted). “Unchallenged findings of fact by the Commission are binding on appeal.” Davis v. Hospice & Palliative Care of Winston–Salem, 202 N.C.App. 660, 670, 692 S.E.2d 631, 638 (2010) (citation omitted).
For an injury to be compensable under our Workers' Compensation Act, it “must be shown to have resulted from an accident arising out of and in the course of the employment.” Duncan v. City of Charlotte, 234 N.C. 86, 90, 66 S.E.2d 22, 25 (1951) (citations omitted); see alsoN.C. Gen.Stat. § 97–2(6) (2011). “The two requirements are separate and distinct, and both must be satisfied in order to render an injury compensable.” Barham v. Food World, Inc., 300 N.C. 329, 332, 266 S.E.2d 676, 678 (citation omitted), rehearing denied,300 N.C. 562, 270 S.E.2d 105 (1980). “The term ‘arising out of’ refers to the origin or causal connection of the injury to the employment; the phrase ‘in the course of’ refers to the time, place and circumstances under which the injury by accident occurs.” Id. (citation omitted).
Defendants first contend the Full Commission erred by finding and concluding Plaintiff's injury arose out of his employment. Specifically, Defendants argue Plaintiff's injuries are not related to his employment as a principal. We disagree.
“Where any reasonable relationship to employment exists, or employment is a contributory cause, the court is justified in upholding the award as ‘arising out of employment.’ “ Hauser v. Advanced Plastiform, Inc., 133 N.C.App. 378, 382, 514 S.E.2d 545, 548 (1999) (quotation omitted). “The controlling test of whether an injury ‘arises out of’ the employment is whether the injury is a natural and probable consequence of the nature of the employment.” Dildy v. MBW Investments, Inc., 152 N.C.App. 65, 69, 566 S.E.2d 759, 763 (2002) (quotation omitted). “This test has been referred to as the ‘increased risk’ analysis, and focuses on whether the nature of the employment creates or increases a risk to which the employee is exposed.” Id. (emphasis in original) (citation omitted).
Here, Defendants argue the Full Commission's finding of fact number 17 is not supported by competent evidence. Finding of fact number 17 states, “Based upon the evidence of record, the shooting of Plaintiff was more likely than not related to his anti-gang activities conducted in the course and scope of his employment.” Defendants also contend Plaintiff's anti-gang activity was “not peculiar to his role as a[ ] principal but was related to his role as a community resident and leader.” Defendants, however, do not challenge the following findings of fact related to Plaintiff's anti-gang activities:
11. At Fairgrove Middle School, Plaintiff had problems with gangs. He attempted to catalogue gang members and stop gangs from forming inside the school. Plaintiff suspended a gang leader from school and had a confrontation with another gang member, who made it clear to Plaintiff [ ] that he was not “backing down”. Plaintiff's testimony, which is found to be credible, is that he was known throughout the community for his strong stance against gangs in schools. There were gang members and parents that did not like what he stood for, and one parent even threatened to kill Plaintiff.
12. Plaintiff testified that when the students returned from Easter break, the gang “flags were flying.” Plaintiff had the anti-gang group “City Crisis” make a presentation to the school the Tuesday before he was shot. Plaintiff told the students,
These unchallenged findings of fact are deemed binding on appeal. See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
Although Detective Martin had not identified who shot Plaintiff and could not “say one way or the other” if Plaintiff was “more likely than not” shot because of his work as a principal, there is competent evidence to support the Full Commission's finding that Plaintiff was shot due to his anti-gang activities related to his work as principal. Specifically, Plaintiff testified, ...
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