Willey v. Williamson Produce

• Decision Date: 05 March 2002
• Docket Number: No. COA01-226.,COA01-226.
• Citation: 149 NC App. 74,562 S.E.2d 1
• Court: North Carolina Court of Appeals
• Parties: Ralph G. WILLEY, Guardian Ad Litem for Elizabeth Mullins, Minor Daughter of William Henry Mullins, Deceased, Employee, Plaintiff, v. WILLIAMSON PRODUCE, Employer, The Goff Group, Carrier, Defendants.

562 S.E.2d 1

149 NC App. 74

Ralph G. WILLEY, Guardian Ad Litem for Elizabeth Mullins, Minor Daughter of William Henry Mullins, Deceased, Employee, Plaintiff, v. WILLIAMSON PRODUCE, Employer, The Goff Group, Carrier, Defendants.

No. COA01-226.

Court of Appeals of North Carolina.

March 5, 2002.

Keel O'Malley, L.L.P., by Susan M. O'Malley, Tarboro, for plaintiff-appellee.

Lewis & Roberts, P.L.L.C., by John H. Ruocchio, Raleigh, for defendant-appellants.

TYSON, Judge.

Williamson Produce ("Williamson") and The Goff Group (collectively "defendants") appeal the amended opinion and award of the Full Commission ("Commission") of the North Carolina Industrial Commission filed 7 December 2000 awarding Ralph G. Willey ("plaintiff"), the guardian ad litem, workers compensation death benefits for the use and benefit of Elizabeth Mullins.

I. Facts

The undisputed facts show that on 17 November 1997, William Henry Mullins ("Mullins") was driving a truck for Williamson during the course and in the scope of his employment, and was killed in an accident. At the time of the accident, Elizabeth Mullins was a minor and the only dependent of Mullins. The guardian ad litem requested a hearing before the deputy commissioner to determine defendant's liability for benefits available to Elizabeth Mullins pursuant to N.C.G.S. § 97-38 and § 97-39. Defendants denied liability under N.C.G.S. § 97-12.

Two eyewitnesses of the accident reported that Mullins was driving erratically, weaving from one lane to the other, for a period of forty-five minutes prior to the accident, before his tractor-trailer left the pavement on the right side of the road and slid down an embankment.

Mullins' urine contained cocaine and marijuana at the time of his death. The metabolites of cocaine found in Mullins' urine measured at least 300 nanograms per milliliter.

Dr. Arthur E. Davis, Jr. ("Davis") was qualified as an expert in pathology and toxicology. Dr. Davis testified that at the time of the fatal collision, the employee was impaired by cocaine and that this impairment caused the accident and the employee's death. Dr. Davis formulated his opinion after reviewing all of the documents and records in evidence, including: the accident report, coroner's report, death certificate, three separate toxicology reports, case reports, and employment records. Dr. Davis further testified that the threshold levels established by the federal government of 300 nanograms per milliliter is a level sufficient to have a pharmacological effect or show impairment.

Dr. Arthur John McBay ("McBay") was qualified as an expert in forensic toxicology. Dr. McBay's review consisted of the accident report, coroner's report, death certificate, and toxicology reports. Dr. McBay testified that it was impossible to determine from the drug screens and other information whether Mullins was impaired at the time of the fatal collision. Dr. McBay further testified that it is not possible to tell from a urine drug screen whether either drug was introduced to Mullins' system within twelve hours before Mullins' death and that it is not possible for anyone to determine whether the substances impaired Mullins.

The deputy commissioner, considering the testimony of two eyewitnesses of Mullins' erratic driving, placed greater weight on the testimony of Dr. Davis. The deputy commissioner denied benefits, finding that "the employee was under the influence of and impaired by cocaine" and that "[t]he employee's death was proximately caused by his being under the influence of cocaine."

The Commission, with one commissioner dissenting, reversed the deputy commissioner. The Commission found in pertinent part:

5. A urinary drug screen was performed post mortem [on Mullins] which showed a positive screen for the metabolites for cocaine and marijuana ... The cut off [sic] for the drug screen for the cocaine metabolite is 300 nanograms. A nanogram is a billionth of a gram. There was no evidence of the quantitative amount of the cocaine or marijuana metabolites in decedent's system at the time of the accident which resulted in his death.

6. There is no evidence of when either cocaine or marijuana entered [Mullins'] system, how much was introduced or the mode of administration. It is possible for an individual to test positive for the cocaine metabolite for 3 or 4 days after it is introduced to their system. It is possible to test positive for the marijuana metabolite for as long as 20 days after it is introduced to an individual's system.

7. Based on the post mortem urine drug screen performed on [Mullins'] body, there is no scientific basis for determining what impact, if any, the drug metabolites had on [Mullins] at the time of the accident. Drug screens are only meant to demonstrate an analytically significant amount of a metabolite, not a pharmacologically significant amount. An analytically significant amount simply means an amount that can be determined with certainty. A pharmacologically significant amount is an amount that has a measurable effect on an individual. Therefore, it cannot be shown that 300 nanograms of the metabolite of cocaine in [Mullins'] urine had a measurable pharmacological effect on him at the time of the accident.

8. The opinion of Dr. Art Davis that [Mullins] was impaired at the time of the accident is not given any weight. Dr. Davis based his opinion on a review of only four documents. He did not know [Mullins'] height, weight, medical history, when cocaine was introduced to [Mullins'] system or how much was introduced. As such, Dr. Davis' opinions regarding [Mullins'] potential impairment or intoxication at the time of the accident were given on an inadequate factual basis to be accepted. Dr. Davis provided no opinion on the effect of the marijuana metabolites on [Mullins'] at the time of the accident.

....

10. Dr. Arthur McBay has extensive experience in the area of forensic toxicology and has served as the Chief Toxicologist at the Office of Chief Medical Examiner in North Carolina. Dr. Arthur McBay testified that based on the data obtained subsequent to [Mullins'] death that it is impossible to determine the time and means of administration of marijuana or cocaine into [Mullins'] system. He also testified that the leading cause of single tractor-trailer accidents is fatigue. The accident in question occurred at 11:20 p.m. The Full Commission gives greater weight to the opinions of Dr. McBay.

11. Defendants have failed to produce sufficient evidence to prove that the accident which resulted in [Mullins'] death was proximately caused by [Mullins] being under the influence of cocaine or marijuana or that he was intoxicated at the time it occurred.

II. Issues

The only question raised on appeal is whether defendants presented sufficient competent evidence to establish the affirmative defense found in N.C.G.S § 97-12, which provides that:

No compensation shall be payable if the injury or death of the employee was proximately caused by:

(2) His being under the influence of any controlled substance listed in the North Carolina Controlled Substances Act, G.S. 90-86, et seq., where such controlled substance was not by prescription by a practitioner.

N.C. Gen.Stat. § 97-12(2) (1999).

The employer bears the burden of proof for the affirmative defense of intoxication or impairment. Harvey v. Raleigh Police Dept., 85 N.C.App. 540, 545, 355 S.E.2d 147, 150 (1987). The employer is not required to disprove all other possible causes or that intoxication or impairment was the sole proximate cause of the employee's injury. Sidney v. Raleigh Paving & Patching, Inc., 109 N.C.App. 254, 256, 426 S.E.2d 424, 426 (1993) (citing Anderson v. Century Data Sys., Inc., 71 N.C.App. 540, 322 S.E.2d 638 (1984)). The employer is required to prove only that it is more probable than not that intoxication or impairment was a cause in fact of the injury. Id.

Appellate review of an opinion and award by the Commission is limited to two questions: "(1) [w]hether or not there was any competent evidence before the Commission to support its findings of fact; and (2) whether or not the findings of fact of the Commission justify its legal conclusions and decision." Inscoe v. DeRose Indus., Inc., 292 N.C. 210, 216, 232 S.E.2d 449, 452 (1977). The Commission is "the sole judge of the credibility of the witnesses and the weight to be given their testimony." Melton v. City of Rocky Mount, 118 N.C.App. 249, 255, 454 S.E.2d 704, 708 (1995) (citation omitted).

The evidence presented in this case raised two issues for the Commission's determination: (1) whether Mullins was under the influence of controlled substances at the time of the fatal accident and if so, (2) whether Mullins' impairment was a proximate cause of the accident. Defendants contend that the findings of the Commission were not based on competent evidence and that the Commission failed to make specific findings regarding crucial facts and resolve all the issues raised. We conclude that competent evidence existed in the record to establish the defense of intoxication. We reverse the opinion and award and remand to the Commission for findings of fact resolving all the issues raised by the evidence in this case.

A. Impairment

"It is the duty of the Commission to make findings of fact resolving all issues raised by the evidence given in the case." Anderson v. Century Data Sys., Inc., 71 N.C.App. 540, 544, 322 S.E.2d 638, 640 (1984). The Commission did not make an express finding on the issue of whether Mullins was impaired. The Commission found and concluded that defendants failed to produce evidence that Mullins was impaired at the time of the accident.

The Commission did not give any weight to the opinion of Dr. Davis that Mullins was impaired at the time of the accident. The Commission found that Dr. Davis' opinions were based on inadequate facts, stating that Dr. Davis "based his opinion on a review of only four documents," did not know ...