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Weaver v. Dedmon

Court of Appeals of North Carolina

May 16, 2017

SHAUN WEAVER, Employee, Plaintiff,
v.
DANIEL GLENN DEDMON d/b/a DAN THE FENCE MAN d/b/a BAYSIDE CONSTRUCTION, Employer, NONINSURED, and DANIEL GLENN DEDMON, Individually; and SEEGARS FENCE COMPANY, INC. of ELIZABETH CITY, Employer, and BUILDERS MUTUAL INSURANCE COMPANY, Carrier, Defendants.

          Heard in the Court of Appeals 7 June 2016.

         Appeal by Plaintiff from an Opinion and Award entered 2 September 2015 by the Full North Carolina Industrial Commission Nos. Y26729 & PH-3452.

          The Jernigan Law Firm, by Leonard T. Jernigan, Jr. and Kristina Brown Thompson, for Plaintiff-Appellant.

          Lewis & Roberts, by J. Timothy Wilson, for Defendants-Appellees.

          INMAN, Judge.

         A decision by the North Carolina Industrial Commission that contains contradictory factual findings and misapplies controlling law must be set aside and remanded to the Commission to determine, in light of the correct legal standards, factual and legal issues regarding whether an employee's injury arose out of and in the course of his employment.

         Shaun Weaver ("Plaintiff" or "Mr. Weaver") appeals from an Opinion and Award of the Full Commission of the North Carolina Industrial Commission (the "Commission"), denying him compensation for injuries suffered in an on-the-job accident. For the reasons explained in this opinion, we remand.

         Factual and Procedural History

         Mr. Weaver's appeal arises from an accident that occurred in October 2012 in an outdoor storage yard of Seegars Elizabeth City, a facility owned and operated by Seegars Fence Company ("Defendant Seegars"). Mr. Weaver, at that time 20 years old, was in the yard with Daniel Glenn Dedmon ("Dedmon"), who owned a small business known alternatively as Dan the Fence Man or Bayside Construction.

         The record tends to show the following:

         A few weeks before the accident, Defendant Seegars had hired Dedmon as a subcontractor in anticipation of a brief period of high-volume contracts for fence construction. Defendant Seegars provided fencing materials as well as a truck and trailer, and Dedmon provided the tools. Dedmon hired Mr. Weaver to do the work. Dedmon directed and controlled Mr. Weaver's work. Mr. Weaver had worked building fences with Dedmon, the father of Mr. Weaver's half-brother, for a few years.

         Defendant Seegars delivered fencing supplies to construction worksites on flatbed trucks. Other supplies were picked up by Dedmon and Mr. Weaver from the Seegars storage yard. After completing their work each day, Dedmon and Mr. Weaver would return to the storage yard, unload unused supplies, and reload supplies needed for the following day. According to Mr. Weaver's testimony, to load and unload supplies, Dedmon regularly operated a Bobcat skid-steer loader kept in the yard and Mr. Weaver regularly operated a forklift kept in a nearby warehouse. Mr. Weaver had no certificate to drive the forklift but testified that he was never told that he was not allowed to operate it. The storage yard is a quarter-acre gravel yard approximately 200 feet behind the warehouse and an adjacent office. A seven-foot fence with privacy slats and barbed wire surrounds the yard.

         Between 5:30 and 5:40 p.m. on 17 October 2012, Mr. Weaver and Dedmon returned to the storage yard after finishing their day's work on a construction site. Dedmon operated the Bobcat while Mr. Weaver operated the forklift. At approximately 5:50 p.m., the forklift overturned, entrapping Mr. Weaver between the roll bars of the top portion of the forklift. Mr. Weaver testified that he had completed loading and unloading items with the forklift and was about to return the forklift to the warehouse when he turned it too quickly, causing it to overturn.

         Charles Mapes, the owner and operator of a business next door to Seegars who was working about 300 to 350 feet from the storage yard that afternoon, witnessed Mr. Weaver operating the forklift prior to the accident. Mapes heard the loud noise of equipment "running at a high throttle" and looked over the fence to see the forklift being driven in circles or "donuts."[1] Mapes did not see any work materials and "there was no indication that there was any work being done." Mapes turned around to carry some lumber into his building when he heard a loud boom, followed by screaming. Mapes ran over to the yard and found Dedmon trying without success to use the Bobcat to lift the forklift off of Mr. Weaver's body, which was folded in half.

         Paramedics arrived at approximately 5:55 p.m., freed Mr. Weaver from the forklift, and transported him to a nearby hospital. Mr. Weaver was diagnosed with, inter alia, a crush injury; closed head injury; cervical, thoracic, lumbar, and pelvic fractures; liver and renal lacerations; splenic injury; and cardiac arrest. Mr. Weaver required several months of in-patient care and at the time of the hearing of this matter remained in an assisted living facility.

         At the time of the accident, Defendant Seegars had workers' compensation insurance. Dedmon had no workers' compensation insurance. Defendant Seegars had not obtained a certificate of workers' compensation insurance coverage from Dedmon prior to the accident.

         On 23 October 2012, one week after the accident, Defendant Seegars filed a Form 19 Notice of Accident pursuant to the Workers' Compensation Act. On 5 November 2012, Defendant Seegars's insurance carrier filed a Form 61 Denial of Workers' Compensation Claim explaining that a claim by Mr. Weaver arising from the accident would be denied because "[e]mployee did not sustain an injury by accident or specific traumatic event arising out of and during the course and scope of his employment." On 11 April 2013, Mr. Weaver filed a Form 18 Notice of Injury pursuant to the Workers' Compensation Act. On 20 August 2013, Mr. Weaver filed a Form 33 Request for Hearing.

         Mr. Weaver and Defendant Seegars, through counsel, appeared at a hearing on 20 February 2014 before Deputy Commissioner Adrian Phillips. Dedmon did not appear and did not participate in the proceedings below. Following depositions and briefing, the Deputy Commissioner on 7 October 2014 entered an Opinion and Award denying Mr. Weaver's claim in its entirety. The Deputy Commissioner found credible testimony by Mapes that Mr. Weaver was driving the forklift in high-speed turns or "donuts" and found that the turns caused the forklift to tip over onto Mr. Weaver.

         Mr. Weaver appealed to the Full North Carolina Industrial Commission pursuant to N.C. Gen. Stat. § 97-85 and Commission Rule 701, and the matter was heard on 10 March 2015. The parties, again with the exception of Dedmon, appeared through counsel and submitted briefs and oral arguments. The Commission entered an Opinion and Award on 6 July 2016 affirming the Deputy Commissioner's Opinion and Award and providing extensive findings of fact and conclusions of law denying Mr. Weaver's claim for compensation. The Commission recited Mr. Weaver's testimony in its findings of fact but did not make a finding that the testimony was credible, or that it was not credible. The Commission found Mapes's testimony- including his account of seeing the forklift doing "donuts"-was credible because he "was an unbiased, disinterested eyewitness of the events immediately preceding and subsequent to the flipping of the forklift."

         The Commission also found credible testimony by an accident reconstruction expert that photographs showing curved tire impressions at the accident scene were consistent with the forklift driving in tight circles. The Commission found that Mr. Weaver "was operating the forklift at such a speed to cause it to rollover and inflict the resulting serious injuries from which [he] now suffers." The Commission further found that "the manner in which Plaintiff operated the forklift preceding his injury was unreasonable and reckless, in essence joy riding and/or thrill seeking." The Commission concluded that Mr. Weaver's injury did not arise out of and in the course of his employment and is therefore not compensable.

         Commissioner Bernadine Ballance dissented, asserting that Mr. Weaver was injured while operating the forklift "for the purpose of moving and loading materials needed to accomplish the job for which he was hired, " and "in the presence of, at the direction of, and under the supervision of his employer, " Dedmon. As the statutory employer, Commissioner Ballance concluded that Defendant Seegars should be liable to the same extent Dedmon would have been if he had purchased workers' compensation insurance. Beyond disputing the Commission's findings based on the evidence, Commissioner Ballance noted that the Commission's finding that Plaintiff was operating the forklift at an excessive or high speed "indicates that Plaintiff may have been negligently operating the forklift" at the time of the accident. Commissioner Ballance reasoned that "neither negligence, nor gross negligence would bar compensation to Plaintiff, if Plaintiff's actions in operating the forklift were reasonably related to the accomplishment of the tasks for which he was hired."

         Mr. Weaver timely appealed the Commission's Opinion and Award.

         Analysis

         Mr. Weaver argues the Commission's legal conclusions are inconsistent with its factual findings and are not supported by the relevant case law. Specifically, Mr. Weaver argues the Commission's findings do not support the legal conclusion that his manner of operating the forklift removed him from the scope of his employment. He also argues that the Commission failed to make findings necessary to support the conclusion that he was injured while engaging in an activity unrelated to the job duties he was performing. After careful review, we agree and remand this matter to the Commission to reconsider and to determine, based on the North Carolina Workers' Compensation Act and our precedent, whether Mr. Weaver's injuries arose out of and in the course of his employment.

         I. Standard of Review

         Our review of an opinion and award of the Commission is limited to determining: (1) whether the findings of fact are supported by competent evidence, and (2) whether those findings support the Commission's conclusions of law. Chambers v. Transit Mgmt., 360 N.C. 609, 611, 636 S.E.2d 553, 555 (2006). Unchallenged findings of fact "are 'presumed to be supported by competent evidence' and are, thus 'conclusively established[.]' " Chaisson v. Simpson, 195 N.C.App. 463, 470, 673 S.E.2d 149, 156 (2009) (quoting Johnson v. Herbie's Place, 157 N.C.App. 168, 180, 579 S.E.2d 110, 118 (2003)).

         The Commission's conclusions of law are reviewed de novo. McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 701 (2004) (citation omitted). Challenged findings of fact are conclusive on appeal "when such competent evidence exists, even if there is plenary evidence for contrary findings." Hardin v. Motor Panels, Inc., 136 N.C.App. 351, 353, 524 S.E.2d 368, 371 (2000). This Court has no authority to re-weigh the evidence or to substitute its view of the facts for those found by the Commission.

         Because appellate courts have no jurisdiction to determine issues of fact, errors by the Commission regarding mixed issues of law and fact are generally corrected by remand rather than reversal. "When the Commission acts under a misapprehension of the law, the award must be set aside and the case remanded for a new determination using the correct legal standard." Ballenger v. ITT Grinnell Indus. Piping, Inc., 320 N.C. 155, 158, 357 S.E.2d 683, 685 (1987) (citations omitted).

         In this appeal, Mr. Weaver challenges some aspects of the Commission's Opinion and Award that are denominated conclusions of law but which actually are findings of fact. Our standard of review depends on the actual nature of the Commission's determination, rather than the label it uses. Barnette v. Lowe's Home Ctrs., Inc., ___ N.C.App. ___, ___, 785 S.E.2d 161, 165 (2016) ("Regardless of how they may be labeled, we treat findings of fact as findings of fact and conclusions of law as conclusions of law for purposes of our review.").

         "[T]he determination of whether an accident arises out of and in the course of employment is a mixed question of law and fact, and this Court may review the record to determine if the findings and conclusions are supported by sufficient evidence." Gallimore v. Marilyn's Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977). Because the amount of deference provided to the Commission by the appellate court can determine the ultimate outcome of an appeal, it is imperative that we take care to apply the appropriate standard of review to each determination in dispute.

         II. "Arising Out of and in the Course of Employment"

         The first issue disputed between the parties is whether Mr. Weaver's injury arose out of and in the course of his employment.

         The North Carolina Workers' Compensation Act (the "Act") defines compensable injury as "only injury by accident arising out of and in the course of the employment." N.C. Gen. Stat. § 97-2(6) (2015). The terms "arising out of" and "in the course of" employment "are not synonymous, but involve two distinct ideas and impose a double condition, both of which must be satisfied in order to render an injury compensable." Williams v. Hydro Print, Inc., 65 N.C.App. 1, 5, 308 S.E.2d 478, 481 (1983) (citation omitted). As both requirements are "parts of a single test of work-connection . . ., 'deficiencies in the strength of one factor are sometimes allowed to be made up by strength in the other.' " Id. at 9, 308 S.E.2d at 483 (quotation marks and citation omitted). "The term 'arising out of' refers to the origin or cause of the accident, and the term 'in the course of' refers to the time, place, and circumstances of the accident." Hoyle v. Isenhour Brick & Tile Co., 306 N.C. 248, 251, 293 S.E.2d 196, 198 (1982) (citation omitted).

         In Teague v. Atlantic Co., 213 N.C. 546, 196 S.E. 875 (1938), the Supreme Court of North Carolina denied a workers' compensation claim by the estate of an employee who died while riding on a crate conveyor belt, despite a previous warning by his supervisor that riding the belt was dangerous and prohibited. The Commission relied on the Act's definition of compensable injury and concluded that the employee's death did not arise out of his employment because "there was no causal connection between the conditions under which the work was required to be performed and the resulting injury." Id. at 548, 196 S.E. at 876. The Supreme Court also quoted the Commission's reasoning that the employee died, not as a result of a risk inherent in his work activities, but rather

by stepping aside from the sphere of his employment and voluntarily and in violation of his employer's orders, for his own convenience or for the thrill of attempting a hazardous feat, attempted to ride on machinery installed and used for another purpose and obviously dangerous for the use he attempted to make of it rather than take the usual course of going ...

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