Rose v. City of Rocky Mount, COA05-1645.

• Decision Date: 05 December 2006
• Docket Number: No. COA05-1645.,COA05-1645.
• Citation: 637 S.E.2d 251
• Court: North Carolina Court of Appeals
• Parties: Sandra ROSE, Employee, Plaintiff v. CITY OF ROCKY MOUNT, Self-Insured Employer, Compensation Claims Solutions, Administrator, Defendants.

637 S.E.2d 251

Sandra ROSE, Employee, Plaintiff v. CITY OF ROCKY MOUNT, Self-Insured Employer, Compensation Claims Solutions, Administrator, Defendants.

No. COA05-1645.

Court of Appeals of North Carolina.

December 5, 2006.

COPYRIGHT MATERIAL OMITTED

Appeal by employer from opinion and award of the North Carolina Industrial Commission entered 29 September 2005. Heard in the Court of Appeals 19 October 2006.

Thomas and Farris, P.A., by Albert S. Thomas, Jr., and Rose Rand Attorneys, P.A., by Paul N. Blake, III, Wilson, for plaintiff-appellee.

Brooks, Stevens & Pope, P.A., by Kathlyn C. Hobbs and Matthew P. Blake, Cary, for defendants-appellants.

MARTIN, Chief Judge.

The City of Rocky Mount ("employer") and Compensation Claims Solutions ("administrator")(collectively "defendants") appeal an opinion and award by the North Carolina Industrial Commission ("Commission") awarding benefits to Sandra Kay Rose ("plaintiff-employee"), a sworn officer of the City of Rocky Mount's police department.

The underlying events relating to this case took place on 10 November 2003. Evidence in the record tended to show that plaintiff-employee had worked in her present position as a police officer since June 1987, attaining the rank of corporal. At lunch time, following the standard sign-out procedures, she went to run some personal errands. She was not paid for her lunch break, and she drove her personal vehicle. She was accompanied by another officer. During plaintiff-employee's return trip to the police station, her car was struck from the rear by a vehicle driven by one Aaron Troy Sutton ("Sutton"), an intoxicated driver.

Plaintiff-employee emerged from her vehicle to evaluate the damage. As she began to walk back toward Sutton's car, it became evident to her that Sutton was planning to flee the scene. Following her training, she "tapped" the hood of the car in order to leave her fingerprints, threw up her hands and yelled for him to stop, while simultaneously trying to get out of the way. Sutton struck plaintiff-employee, who was flung across two lanes of traffic. Sutton then ran across plaintiff-employee's legs a second time while making his get-away. The first officer on the scene noted that plaintiff-employee appeared "almost lifeless."

An ambulance transported plaintiff-employee to Nash General Hospital. She was treated for multiple bruises and abrasions. However, she suffered no fractures. After her discharge, an orthopedic specialist advised her to continue with the medication, crutches and knee immobilizer she received during her hospitalization. She was also restricted in her work functions.

Plaintiff-employee returned to work on 6 January 2004. However, her work functions were circumscribed by the restrictions indicated above, which barred her from heavy lifting, climbing, and crawling. This limited her ability to perform crime scene investigations, her primary responsibility. These limitations caused some friction with her supervisor.

Plaintiff-employee was diagnosed with post traumatic stress, myofacial dysfunctional pain syndrome, bilateral occipital neuralgia, possible knee reflex sympathetic dystrophy, possible cervical herniated disc, depression, short term memory loss, lack of concentration, and adjustment disorder with mixed emotional features.

After her employer determined that her injuries were not related to her job functions, plaintiff-employee filed a Form 33 Request for a Hearing on 16 February 2004. Defendants responded with Form 33R on 5 March 2004. The deputy commissioner heard the case on 18 August 2004 in Nashville. On 26 January 2005, she entered an Opinion and Award, which inter alia, determined that plaintiff-employee's injuries arose out of her employment, that she had not reached maximum medical improvement, and directed that she be given additional leave and benefits to recuperate. Defendants appealed to the full Commission.

On 29 September 2005, the Commission entered an Opinion and Award affirming the deputy commissioner's decision. This appeal follows.

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                         Standard of Review
                

Our review of the Commission's opinion and award is limited to determining whether competent evidence of record supports the findings of fact and whether the findings of fact, in turn, support the conclusions of law. Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). If there is any competent evidence supporting the Commission's findings of fact, those findings will not be disturbed on appeal despite evidence to the contrary. Jones v. Myrtle Desk Co., 264 N.C. 401, 402, 141 S.E.2d 632, 633 (1965). However, "[t]he Commission's conclusions of law are reviewed de novo." Ward v. Long Beach Vol. Rescue Squad, 151 N.C.App. 717, 720, 568 S.E.2d 626, 628 (2002).

Although defendants assigned error to findings of fact 18, 19, 20, 21, 23, and 24, defendants have failed to include in their brief any argument or legal authority in support of its assignments of error regarding findings 21, 23 and 24. Accordingly, these assignments of error are deemed abandoned, N.C. R.App. P. 28(b)(6), and these findings of fact are conclusively established on appeal. Johnson v. Herbie's Place, 157 N.C.App. 168, 180, 579 S.E.2d 110, 118, disc. review denied, 357 N.C. 460, 585 S.E.2d 760 (2003). Defendants also challenge conclusions of law 2 and 3, that the plaintiff-employee was at increased risk of assault as a police officer and that her injuries arose out of her employment.

Turning first to conclusion 3, defendants contend that the Commission erred in determining that plaintiff-employee's injuries arose out of and in the course of her employment. Our Supreme Court has previously held that a determination that an injury arose out of and in the course of employment is a mixed question of law and fact, "and where there is evidence to support the Commissioner's findings in this regard, [the appellate court is] bound by those findings." Barham v. Food World, 300 N.C. 329, 331, 266 S.E.2d 676, 678 (1980). This Court reviews the record to determine if the findings of fact and conclusions of law are supported by the record. Cauble v. Soft-Play, Inc., 124 N.C.App. 526, 528, 477 S.E.2d 678, 679 (1996), disc. review denied, 345 N.C. 751, 485 S.E.2d 49 (1997).

The pivotal finding in this case was the Commission's determination that it was plaintiff-employee's status as a police officer that motivated Sutton's attack. This finding is critical for two reasons. First, as a matter of law, a mere automobile accident would represent "a risk common to the traveling public and was not due to a hazard peculiar to a police officer." It would thus not be compensable as a work injury. See Roberts v. Burlington Indus., Inc., 321 N.C. 350, 358, 364 S.E.2d 417, 423 (1988) (holding that an injury is compensable only if "the nature of the employment was a contributing proximate cause of the injury, and one to which the employee would not have been equally exposed apart from the employment").

Secondly, the Industrial Commission found that plaintiff-employee's injuries were sustained as the result of Sutton's assault and not as the result of the automobile accident. Significantly, the Commission stated in its findings of fact that the "hit-and-run assault was a natural result of a risk reasonably associated with being a police officer" and would not have occurred had plaintiff-employee not been in uniform. A fellow officer who was also involved in the accident, but not in the subsequent assault, does not appear to have been seriously injured.

As noted above, the Commission's "findings of fact are conclusive on appeal if supported by competent evidence even though there is evidence to support a contrary finding." Murray v. Associated Insurers, Inc., 341 N.C. 712, 714, 462 S.E.2d 490, 491 (1995). Our Supreme Court has held that "a police officer retains his official law enforcement officer status even while `off duty' unless it is clear from the nature of his activities that he is acting solely on behalf of a private entity, or is engaged in some frolic or private business of his own." State v. Gaines, 332 N.C. 461, 472, 421 S.E.2d 569, 575 (1992). Gaines permitted a potential death penalty prosecution to proceed premised on the victim's status as an off-duty police officer. Id. Other jurisdictions have followed the Gaines reasoning. See, e.g., White v. Kentucky, 178 S.W.3d 470, 481 (Ky.2005) (shooting of uniformed sheriff at fish fry constituted murder of police official engaged in his duties) (citing Gaines, 332 N.C. at 472, 421 S.E.2d at 574). Logic would dictate that a worker's compensation claim for a uniformed police officer acting in accordance with her training presents at least an equally strong case as a criminal prosecution potentially entailing the death penalty.

Here, plaintiff-employee testified it was after she emerged from the vehicle and was mid-center in front of the drunk driver's car that the latter attempted to flee. Other witnesses at the scene told the police that Sutton "aimed" his car at the "police officer" and proceeded to drag her. Defendants alleged that there is no evidence to support the Commission's determination that plaintiff-employee was attacked because she was a police officer, since Sutton, the only individual aware of his intentions at the time of the assault, stated that he did not know that she was a police officer.

We find this suggestion disingenuous. At the time of his statement, Sutton was faced with the prospect of being charged with a myriad of serious criminal offenses. Conceding that he had deliberately targeted a law enforcement officer would have exacerbated his already precarious position. Indeed, Sutton denied hitting plaintiff-employee's truck, denied ramming her, and denied leaving the scene. Against this background, we cannot fault the Commission for declining to take his statements at face value. We note that Sutton did...