in the Court of Appeals 7 June 2016.
by Plaintiff from an Opinion and Award entered 2 September
2015 by the Full North Carolina Industrial Commission Nos.
Y26729 & PH-3452.
Jernigan Law Firm, by Leonard T. Jernigan, Jr. and Kristina
Brown Thompson, for Plaintiff-Appellant.
& Roberts, by J. Timothy Wilson, for
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
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.
and Procedural History
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.
record tends to show the following:
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
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.
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
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." 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.
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.
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.
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.
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.
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."
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.
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."
Weaver timely appealed the Commission's Opinion and
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
Standard of Review
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)).
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.
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).
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.").
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.
"Arising Out of and in the Course of
first issue disputed between the parties is whether Mr.
Weaver's injury arose out of and in the course of his
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).
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 ...