Melton v. City of Rocky Mount

• Court: North Carolina Court of Appeals
• Writing for the Court: MARK D. MARTIN; ARNOLD, C.J., and JOHNSON
• Citation: Melton v. City of Rocky Mount, 454 S.E.2d 704, 118 N.C.App. 249 (N.C. App. 1995)
• Decision Date: 21 March 1995
• Docket Number: No. 9410IC473,9410IC473
• Parties: Toni Lagrange MELTON, Widow; Toni Lagrange Melton, Guardian Ad Litem for Ryan D. Melton, Minor Son of Robert D. Melton (Deceased) Employee-Plaintiffs-Appellees, v. CITY OF ROCKY MOUNT, Employer, Self-Insured, Defendant-Appellant.

Page 704

454 S.E.2d 704

118 N.C.App. 249

Toni Lagrange MELTON, Widow; Toni Lagrange Melton, Guardian Ad Litem for Ryan D. Melton, Minor Son of Robert D. Melton (Deceased) Employee-Plaintiffs-Appellees, v. CITY OF ROCKY MOUNT, Employer Self-Insured, Defendant-Appellant.

No. 9410IC473.

Court of Appeals of North Carolina.

March 21, 1995.

Taft, Taft & Haigler, P.A. by Thomas F. Taft and James S. Walker, Greenville, for plaintiffs-appellees.

Poyner & Spruill, L.L.P. by Ernie K. Murray, Rocky Mount, for defendant-appellant.

MARK D. MARTIN, Judge.

The issue presented is whether the Industrial Commission erred in applying the Pickrell "presumption of compensability" and awarding compensation to plaintiffs. We affirm.

Robert D. Melton, decedent, was employed by defendant, City of Rocky Mount, as a traffic signal technician. His job duties included repair and maintenance of traffic lights operated within the city limits. On 7 May 1990 Melton and co-worker Ronald Lewis were sent to an intersection where a traffic light was in need of repair. Melton was transported to the height of the traffic light by use of a "bucket," which is a mechanical device used for lifting workers to moderate heights. Prior to Melton entering the bucket, Mr. Lewis testified he checked the electrical current to ensure it was turned off. While Melton was elevated in the bucket, Mr. Lewis heard a noise of "beating and banging" and, when he looked up, observed Melton "waving his hands and flopping" around. Melton was lowered to the ground and paramedics were immediately summoned to the scene. He was rushed to the hospital, where all efforts to revive him failed and he was pronounced dead.

On 8 May 1990, Dr. Louis Levy, local medical examiner, performed an autopsy and issued his autopsy report. Dr. Levy indicated the probable cause of death was anoxic encephalopathy (lack of oxygen to the brain) due to the aspiration of gastric contents. On 9 May 1990 Dr. Levy issued the medical examiner's certificate of death listing the immediate cause of death as "pending." On 7 June 1990 Dr. Levy issued a supplemental report listing "anoxic encephalopathy due to aspiration of gastric contents" as the immediate cause of death and also listing the manner of death as "accident."

The Rocky Mount Police Department conducted an investigation but could not determine the cause of death. However, they did conclude decedent did not sustain any type of electrical shock.

At the widow's request, on 7 September 1990 decedent's body was exhumed and a second autopsy was performed by Dr. Lawrence S. Harris, a forensic pathologist at ECU School of Medicine in Greenville, North Carolina. Dr. Harris filed an autopsy report indicating no new pathologic diagnoses and no evidence of electrical injury. On 12 December 1990 Dr. Harris issued an opinion letter indicating an aerosol spray lubricant decedent was using immediately prior to his death could potentially be a causal factor in the death. By letter dated 1 April 1991, Dr. Harris indicated he could not tie the aerosol to decedent's death.

The Chief Medical Examiner's office reviewed the matter and ordered its own testing to determine the cause and manner of death. On 12 September 1990 Dr. Thomas Clark, Associate Chief Medical Examiner for the State of North Carolina, issued a supplemental report of cause of death changing the cause of death to "aspiration of gastric contents due to undetermined" causes. The manner of death was listed as "not determined."

In response to correspondence from Dr. Levy, on 27 December 1990, Dr. John Butts, Chief Medical Examiner for the State of North Carolina, issued a supplemental report of cause of death to Dr. Levy again stating the immediate cause of death was "aspiration of gastric contents due to undetermined causes." However, the manner of death was changed from "not determined" to "accident." Both Drs. Clark and Butts acted pursuant to Section 130A-385(c) of the General Statutes of North Carolina, which states: "[t]he Chief Medical Examiner shall have the authority to amend a medical examiner death certificate."

Dr. Levy never signed the supplemental report of cause of death containing the amendments issued by the Office of the Chief Medical Examiner, and did not notify the Chief Medical Examiner's Office of his failure to do so.

On 3 October 1991, Associate Chief Medical Examiner Clark filed the supplemental report of cause of death listing the immediate cause of death as "aspiration of gastric contents due to undetermined" causes, and listing the manner of death as "accident."

Dr. Arthur E. Davis, Jr., defendant's expert witness, testified decedent died from aspiration of gastric contents caused by "gastroesophageal reflux syndrome," a noncompensable idiopathic condition. As support for his conclusion, Dr. Davis cited decedent's asthma as a child and his alleged chronic bronchitis at the time of the accident. Dr. Davis also commented on the supplemental report of cause of death certificate prepared by Dr. Clark. Dr. Davis testified Dr. Clark's supplemental report of cause of death filed 6 September 1990 had been "reversed" by Dr. Levy:

Walker (attorney for plaintiff): And you didn't talk with the pathologist in completing this document?

Davis: No, this has been reversed.

Walker: It's been reversed?

Davis: Yes, it has.

Walker: How so?

Davis: Dr. Levy was outraged at his report being changed.

Walker: Do you have a document or material--

Davis: I asked Dr. Levy for that document, but they could not find it.

Dr. Davis further testified:

Davis: This was Dr. Clark's opinion without the courtesy of consulting with Dr. Levy. And that's why Dr. Levy, through many negotiations, had it reversed so that it correspond[ed] to the death certificate.

Walker: Where is the reversal, Sir?

Davis: I do not know. I asked them for that.

Dr. Davis did not produce a written report.

Subsequent to the hearing, Dr. Davis generated an undated opinion letter. Dr. Davis wrote, "[a]s I further testified at the hearing, it is my opinion that the gastroesophogeal [sic] reflux and/or the aspiration of gastric contents did not result from an injury by accident sustained by Mr. Melton during the course and scope of his employment with the City of Rocky Mount."

Although the evidence indicated decedent suffered a single asthma attack as a small child, it does not appear he presented any further asthma symptoms again. Decedent's widow never observed him have an asthma attack. Decedent's pediatrician stated he had never treated decedent for any serious condition and that he had enjoyed excellent health other than ordinary childhood illnesses.

Decedent's widow testified she had seen her husband immediately prior to the accident. She testified that decedent ate a normal meal at lunch and she did not notice anything unusual about him.

When decedent returned to work after lunch, co-worker Ronald Lewis testified he looked "fine" and did not appear to be sick when they went to repair the traffic light. Mr. Lewis also testified decedent's appearance was the same after lunch as it was before lunch, and he did not appear to be sick at either time. Mr. Lewis had worked with decedent on several occasions and had never seen him have a seizure or convulsion.

On 8 October 1991 Dr. Clark issued an opinion letter addressing the likelihood of gastroesophageal reflux syndrome causing decedent's death. In this letter Dr. Clark explained the procedural process for amending the death certificate and indicated the 1990 amendment had never been filed due to a clerical oversight. Dr. Clark also stated that Dr. Levy did not have the authority to reverse the determination of the Chief Medical Examiner's Office. According to Dr. Clark, "Now that I have personally signed the supplemental death certificate it can no longer be modified by anyone outside of the chief medical examiner's office." Dr. Clark also stated, "[i]t is my opinion that [decedent's] aspiration probably occurred as a result of death, or may have been the mechanism of death but not the proximate cause of it." (emphasis in original). Dr. Clark further stated:

[T]he only significant finding of this case is aspiration. I consider it most likely that this aspiration is a result of stresses surrounding death, and not the proximate cause of death. The proximate cause of death remains undetermined.... I consider it more likely than not that something in his environment caused his death. The manner of death, therefore, is considered to be accidental.

Lastly, Dr. Clark stated, "[i]t is difficult for me to follow the logic of Dr. Davis' testimony in which an attempt is made to link chronic bronchitis to esophageal reflux in this death. Based on my knowledge of this case I can see no reason that either would be related to his death."

Classifying Dr. Davis' gastroesophageal reflux theory as "speculation," Dr. Harris stated: "It is a tribute to Dr. Davis' chutzpa that he was able, apparently successfully, to throw this obfuscatory handful of sand into the machinery of legal proceedings." Dr. Harris further stated: "I am equally certain that I do not understand why that vomiting and aspiration took place. I would concur with Dr. Clark of Chapel Hill who reached a similar conclusion that the 'bottom line' cause of death remains '[u]ndetermined.' "

The decedent's surviving next of kin properly and timely filed a workers compensation claim for death benefits with the North Carolina Industrial Commission. The City of Rocky Mount denied the claim on 24 July 1990.

On 9 September 1991 the matter came on for hearing before Deputy Commissioner Roger L. Dillard. On 18 June 1992 Deputy Commissioner Dillard applied the Pickrell presumption of compensability and awarded compensation to plaintiffs. On 14 March 1994 the Full Commission affirmed the...