Pitillo v. NC DEPT. OF ENV. HEALTH

• Decision Date: 06 August 2002
• Docket Number: No. COA01-999.,COA01-999.
• Citation: 151 NC App. 641,566 S.E.2d 807
• Parties: Sabrina PITILLO, Employee/Plaintiff, v. N.C. DEPARTMENT OF ENVIRONMENTAL HEALTH AND NATURAL RESOURCES, Employer/Self-Insured, Key Risk Management Services, Carrier/Defendant.
• Court: North Carolina Court of Appeals

566 S.E.2d 807

151 NC App. 641

Sabrina PITILLO, Employee/Plaintiff, v. N.C. DEPARTMENT OF ENVIRONMENTAL HEALTH AND NATURAL RESOURCES, Employer/Self-Insured, Key Risk Management Services, Carrier/Defendant.

No. COA01-999.

Court of Appeals of North Carolina.

August 6, 2002.

Law Offices of George W. Lennon, by George W. Lennon and Michael W. Ballance, Raleigh, for plaintiff-appellant.

Attorney General Roy Cooper, by Special Deputy Attorney General Jonathan P. Babb, for defendant-appellees.

BIGGS, Judge.

Sabrina Pitillo (plaintiff) appeals from the Industrial Commission's denial of her workers' compensation claim. For the reasons that follow, we affirm the Industrial Commission.

Plaintiff began work for the North Carolina Department of Environmental Health and Natural Resources (defendant; with Key Risk Management Services, Inc., collectively, defendants), in 1995, as a waste management specialist. She was responsible for inspection of commercial hazardous waste facilities, which required travel to industrial work sites in order to ascertain whether companies were in compliance with applicable environmental laws and regulations. In June 1997, plaintiff received an annual performance review from her supervisor, Ms. Arms. She received ratings of "outstanding" or "very good" in twelve areas, and a rating of "good" in two areas, for an overall rating of "very good plus." Plaintiff was very upset that she was rated "good" in two areas, and angry that the "good" ratings were based in part upon input from unidentified co-workers. To "appeal the inclusion of alleged comments" in her review, plaintiff sought a meeting with Mike Kelly, the deputy director of the Division of Waste Management, and Brenda Rivers, personnel officer in the division's department. Plaintiff wrote Kelly that Arms' performance evaluation was "arbitrary and capricious"; that she was "outraged" at her annual evaluation; and that she had decided to "stand up to this injustice."

The meeting requested by plaintiff took place in Raleigh, on 24 July 1997. In attendance were plaintiff, Kelly, Rivers, Arms, and Ann Waddell, the manager of employee relations for the Department. Rivers later testified that she informed plaintiff in advance that Arms and Waddell would be included. The meeting focused on plaintiff's job performance, and on her concerns about the annual evaluation. There was also discussion of areas in which her supervisor saw some room for improvement.

The meeting ended after two hours of discussion, with no change in plaintiff's employment status or her overall performance rating of "very good plus." After the meeting, as plaintiff was driving home, she became very upset, stopped driving, and called her fiancee for help. The following day, plaintiff met with Dr. Patel, her family doctor, who referred her to Dr. Patterson, a psychiatrist. Plaintiff received extensive psychiatric treatment during the following months, including medication, outpatient care for psychiatric illness, and psychiatric counseling from two psychiatrists.

On 21 August 1997, plaintiff filed an Industrial Commission Form 18 "Notice of Accident to Employer," in which she alleged that the 24 July 1997 meeting in Raleigh either constituted a workplace accident, or had precipitated an occupational disease. She sought workers' compensation benefits for "stress induced anxiety" and a "diagnosed nervous breakdown." Defendants denied her claim on 24 September 1997, and the matter was subsequently heard by a deputy commissioner of the Industrial Commission. On 28 March 2000 the deputy commissioner issued an opinion denying plaintiff's claim for workers' compensation benefits. Plaintiff appealed to the Full Commission for a hearing, and filed a motion to compel a full accounting of bills submitted and fees received by Dr. Arnoff, a defense witness. The Commission issued an opinion on 2 May 2001, denying plaintiff's claim for benefits. They did not rule on plaintiff's motion to compel an accounting of Dr. Arnoff's fees. Plaintiff appealed from the Commission's Opinion and Award.

Standard of Review

"The standard of appellate review of an opinion and award of the Industrial Commission in a workers' compensation case is whether there is any competent evidence in the record to support the Commission's findings of fact and whether these findings support the Commission's conclusions of law." Lineback v. Wake County Board of Commissioners, 126 N.C.App. 678, 680, 486 S.E.2d 252, 254 (1997). Moreover:

[T]he Industrial Commission is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. The Commission may accept or reject the testimony of a witness solely on the basis of whether it believes the witness or not.

Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982) (citation omitted). "The Commission chooses what findings to make based on its consideration of the evidence[, and this] court is not at liberty to supplement the Commission's findings[.]" Bailey v. Sears Roebuck & Co., 131 N.C.App. 649, 653, 508 S.E.2d 831, 834 (1998). The Industrial Commission's findings of fact "are conclusive upon appeal if supported by competent evidence," even if there is evidence to support a contrary finding, Morrison v. Burlington Industries, 304 N.C. 1, 6, 282 S.E.2d 458, 463 (1981), and may be set aside on appeal only "when there is a complete lack of competent evidence to support them[.]" Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000).

I.

Plaintiff argues first that the Commission erred in its conclusion that plaintiff did not suffer an "injury by accident." We disagree. Workers' compensation "does not provide compensation for injury, but only for injury by accident." O'Mary v. Clearing Corp., 261 N.C. 508, 510, 135 S.E.2d 193, 194 (1964). Thus, an injury is compensable under the North Carolina Workers' Compensation Act only if (1) it is caused by an "accident," and (2) the accident arises out of and in the course of employment. N.C.G.S. § 97-2(6) (2001). "The claimant bears the burden of proving these elements[,]" including the existence of an accident. Smith v. Pinkerton's Sec. and Investigations, 146 N.C.App. 278, 280, 552 S.E.2d 682, 684 (2001) (citing Pickrell v. Motor Convoy, Inc., 322 N.C. 363, 368 S.E.2d 582 (1988)). In the present case, plaintiff contends that the psychological trauma of her performance review meeting on 24 July 1997, constituted a workplace "accident," thus, meeting the first part of the statutory test for compensability.

An accident under the workers' compensation act has been defined as "`an unlooked for and untoward event which is not expected or designed by the person who suffers the injury,'" and which involves "`the interruption of the routine of work and the introduction thereby of unusual conditions likely to result in unexpected consequences.' " Calderwood v. Charlotte-Mecklenburg Hosp. Auth., 135 N.C.App. 112, 115, 519 S.E.2d 61, 63 (1999) (quoting Adams v. Burlington Industries, 61 N.C.App. 258, 260, 300 S.E.2d 455, 456 (1983)), disc. review denied, 351 N.C. 351, 543 S.E.2d 124 (2000) (accident occurred where plaintiff was injured when required to lift the legs of a 263 pound patient, a task she had never in her eleven years of work done before). If an injury occurs under normal working conditions, no accident has occurred. Ruffin v. Compass Group, U.S.A., ___ N.C.App.___, 563 S.E.2d 633 (2002).

Plaintiff correctly states that a mental or psychological illness may be a compensable injury if it has occurred as a result of an accident arising out of and in the course of the claimant's employment. See Jordan v. Central Piedmont Community College, 124 N.C.App. 112, 476 S.E.2d 410 (1996), disc. review denied, 345 N.C. 753, 485 S.E.2d 53 (1997) (upholding award of benefits to prison instructor who suffered post-traumatic stress disorder after inmate students engaged in violent fight while plaintiff was isolated from other prison employees or guards). However, an injury is not a compensable "injury by accident" if the relevant events were "neither unexpected nor extraordinary," and it was only the "[claimants'] emotional response to the [events that] was the precipitating factor." Cody v. Snider Lumber Co., 328 N.C. 67, 71, 399 S.E.2d 104, 106 (1991).

In the case sub judice, plaintiff does not allege that the meeting's occurrence was unexpected, for it was called at her request. She contends, however, that the presence of Arms and Waddell, the subject matter discussed, and the participant's behavior towards her, all were unexpected and traumatic. Her testimony to this effect was contradicted by testimony from others who attended the meeting, presenting issues of credibility to be resolved by the Industrial Commission. In this regard, the Industrial Commission made the following pertinent findings of fact:

....

9.... [T]he greater weight of the evidence presented ... indicates that the discussion was a routine, problem-solving meeting in which everyone was treated courteously and with respect. Plaintiff was not verbally attacked, reprimanded or severely criticized. Nothing in this meeting was different from other meetings to discuss performance evaluations....

10. At the meeting plaintiff's supervisors encouraged plaintiff to be less adversarial... [and] to develop cooperative relationships and to establish rapport with the industry in order to facilitate compliance....

....

20.... [P]laintiff's account of the meeting on July 24, 1997 ... was not an accurate representation of what actually occurred at the meeting. The Commission gives greater weight to the testimony of ... the four [other] individuals present [at the meeting.]

21. The Commission finds that the greater weight of the competent, credible evidence of record shows that the events of July 24, 1997 did not constitute an unexpected, unusual or untoward occurrence, nor did the meeting constitute an

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