Appeal by plaintiff from Opinion and Award of the North Carolina Industrial Commission entered 25 September 1980. Heard in the Court of Appeals 2 September 1981.
Clark, Judge. Chief Judge Morris and Judge Wells concur.
In an appeal from a decision by the Industrial Commission, the scope of review is limited to a determination of whether the Commission's findings of fact are supported by competent evidence and whether the conclusions of law are supported by the findings. In order to be compensable under the Workers' Compensation Act, an injury must result from an accident arising out of and in the course of employment. G.S. 97-2(6); Barham v. Food World, 300 N.C. 329, 266 S.E.2d 676, rehearing denied, 300 N.C. 562 (1980). Whether the injury arose out of and in the course of employment is a mixed question of fact and law, and where there is evidence to support the Commission's findings, this Court is bound by them. Barham v. Food World, supra; Hollar v. Furniture Co., 48 N.C. App. 489, 269 S.E.2d 667 (1980).
This appeal presents only the question of whether plaintiff's injuries arose out of his employment with defendant-employer. The parties have stipulated that plaintiff's injuries resulted from
an accident within the meaning of the Workers' Compensation Act, and his injuries clearly occurred in the course of his employment.
In Gallimore v. Marilyn's Shoes, 292 N.C. 399, 233 S.E.2d 529 (1977), the Supreme Court stated that the 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. A contributing proximate cause of the injury must be a risk to which the employee is exposed because of the nature of the employment. This risk must be such that it 'might have been contemplated by a reasonable person familiar with the whole situation as incidental to the service when he entered the employment. The test "excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen equally exposed apart from the employment. . . ."' Bartlett v. Duke University, 284 N.C. 230, 233, 200 S.E.2d 193, 195 (1973). In other words, the '"causative danger must be peculiar to the work and not common to the neighborhood. . . ."' Harden v. Furniture Co., supra, [199 N.C. 733] at 735, 155 S.E. at 730."
Id. at 404, 233 S.E.2d at 532-533.
The court in Gallimore relied on Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972), where the facts are somewhat similar to the facts in the case sub judice. In Robbins the claimants were the survivors of two deceased employees of a grocery store. The estranged husband of one of the employees entered the store and shot his wife and a co-worker. The shootings had their origin in domestic problems. The husband was jealous, accused her of "running around" with her co-worker, and had gone to the store and threatened to kill them. He also threatened to kill her employer if he continued to employ her. The Court reversed the Commission award to the survivors, holding that to be compensable the injury must be caused by a risk which is reasonably related to and created by the employment, and since the origin of the shootings was in the domestic problems of the husband and wife and not in the employment, the claimants could not recover.
The plaintiff makes the argument that Robbins is distinguishable on the facts in that in the case before us the violent nature of the Hicks-Williams relationship was a continuing one and that the deceased was given the responsibility of keeping a time record of Hicks' work, which required the claimant to be present in the office at the time of the shooting. But we find these factors present also in Robbins where there was a continuing threat of death and the duties of the co-workers required their presence at the store with the intimidated employee. Further, in Robbins the risk of death or bodily injury to co-workers was greater in that the threat of death by the outsider included other co-workers and was not limited, as in the case sub judice, to a threat against the one worker involved in the personal relationship with the outsider.
The Gallimore and Robbins cases are authority for the principle of law that an injury is not compensable when it is inflicted in an assault upon an employee by an outsider as the result of a personal relationship between them, and the attack was not created by and not reasonably related to the employment. The assault must have had such a connection with the employment that it can be logically found that the nature of the employment created the risk of the ...