in the Court of Appeals 7 March 2018.
by plaintiff from opinion and award entered 25 July 2017 by
the North Carolina Industrial Commission.I.C. No. 15-734251
Hardison & Cochran, P.L.L.C., by Benjamin T. Cochran and
J. Carter Whittington, for plaintiff-appellant.
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Patrick S. Wooten, for defendant-appellee.
appeal, we revisit the issue of whether an employee who
suffers an illness allegedly resulting from a meeting with
her supervisor is able to establish an injury by
"accident" under North Carolina's Workers'
Compensation Act. Alina Cohen appeals from the opinion and
award of the North Carolina Industrial Commission denying her
claim for workers' compensation benefits. Because we
conclude that she has failed to show an injury by accident
within the terms of the statute, we affirm.
and Procedural Background
January 2010, Cohen was hired by Franklin County Schools
("Defendant") to work as a full-time math teacher
at Early College High School ("Early College").
Each teacher at Early College was "required to create an
individual PDP [Professional Development Plan] at the
beginning of the year that stated their goals and also a plan
as to how to accomplish those goals with an associated
timeline." As a part of her employment, Cohen
"underwent periodic classroom observations and was
evaluated by the school principal, James A. Harris, Jr."
Harris was Cohen's principal throughout her employment
with Early College.
to his duties as the school principal, Harris would normally
conduct "three observations with an evaluation" for
each teacher throughout the course of the year. Prior to
October 2013, Harris had conducted observations in
Cohen's classroom and held evaluation conferences with
her. Cohen was aware of the process for teacher observations
and post-observation conferences with Harris. She also knew
that post-observation conferences "should be during the
ten working days after . . . observation."
2013, Harris received "various complaints in regard to
[Cohen's] teaching." After having received these
complaints, Harris "prepared an observation and a
'principal directed' PDP to go over with [Cohen] on
October 11, 2013." He believed that the "PDP was
designed for [Cohen] and him to work together to assist [her]
and to get her to the level where we felt that she would
become a better teacher."
October 2013, Harris went to Defendant's Central Office
to meet with Charles Fuller, a director of secondary
education. Harris told Fuller that he "had prepared a
directed PDP for [Cohen] and that [he] did not believe that
[Cohen] would receive it well." Because Harris did not
have an assistant principal and "wanted someone to be a
witness" during the meeting, Harris asked Fuller to sit
in on the meeting.
same morning, Harris saw Cohen at Early College and told her
"that he had to go over the observation and PDP with her
that day, and asked her to stay after school." In the
past, Harris had not given Cohen advance notice of
post-observation conferences and would typically "do
most of these at the end of the school day . . . ."
conclusion of the school day on 11 October 2013, Cohen was
leaving the school building for the weekend when she saw
Fuller coming into the building. Cohen and Fuller greeted
each other, and she walked outside. As she was leaving,
Harris ran out of the building and stated, "Mrs. Cohen,
I need you to come back." Cohen followed Harris into his
office and saw Fuller sitting in a chair inside the office.
proceeded to explain that he was meeting with Cohen because
of problems with her teaching. He explained that he had
written out a PDP for her. She refused to sign the PDP and
asked for a sheet of paper to instead write that she had been
"pushed to sign [the PDP] without reading . . . ."
The meeting lasted approximately fifteen to twenty minutes,
and Cohen continued to argue with Harris until the end of the
meeting at which point all three participants left the
testified that at some point during the 11 October 2013
meeting with Harris she began to experience "horrible
head pain" and felt as though "her head was going
to blow up." On 14 October 2013, she was seen by Dr.
Richard Noble, an internist, and later that same day she was
examined by Dr. Mitchell Freedman, a neurologist at Duke
Health. Both Dr. Noble and Dr. Freeman determined that Cohen
had suffered a stroke.
June 2015, Cohen initiated a workers' compensation claim
by filing a Form 18 ("Notice of Accident to
Employer"), and she submitted a Form 33 ("Request
That Claim Be Assigned For Hearing") on 16 July 2015.
Defendant filed a Form 61 ("Denial of Workers'
Compensation Claim") on 20 July 2015.
April 2016, a hearing was held before Deputy Commissioner
Philip A. Baddour, III. Cohen testified at the hearing in
support of her claim for benefits. Harris and Fuller
testified on behalf of Defendant. Depositions were later
taken of Dr. Noble and Dr. Freedman.
December 2016, the deputy commissioner issued an opinion and
award determining that Cohen's meeting with Harris and
Fuller on 11 October 2013 was "an ordinary incident of
employment constituting circumstances common to employees in
any profession. There was nothing unexpected or unusual with
regard to the way the meeting was arranged or
conducted." The deputy commissioner concluded that Cohen
"did not experience an unlooked for and untoward event .
. . [and] did not suffer an injury by accident within the
meaning of the North Carolina Workers' Compensation Act,
and therefore her claim is not compensable." Cohen
appealed to the Full Commission.
July 2017, the Full Commission issued an Opinion and Award
affirming the deputy commissioner's decision and denying
Cohen's claim for benefits. On 7 August 2017, Cohen filed
a timely notice of appeal.
review of an opinion and award of the Industrial Commission
is typically "limited to consideration of whether
competent evidence supports the Commission's findings of
fact and whether the findings support the Commission's
conclusions of law." Philbeck v. Univ. of
Mich., 235 N.C.App. 124, 127, 761 S.E.2d 668, 671 (2014)
(citation and quotation marks omitted). "The findings of
fact made by the Commission are conclusive on appeal if
supported by competent evidence even if there is also
evidence that would support a contrary finding. The
Commission's conclusions of law, however, are reviewed
de novo." Morgan v. Morgan Motor Co. of
Albemarle, 231 N.C.App. 377, 380, 752 S.E.2d 677, 680
(2013) (internal citations omitted), affd per
curiam, 368 N.C. 69, 772 S.E.2d 238 (2015).
the Workers' Compensation Act, an injury is compensable
if the claimant proves three elements: "(1) that the
injury was caused by an accident; (2) that the injury was
sustained in the course of the employment; and (3) that the
injury arose out of the employment." Hedges v. Wake
Cty. Pub. Sch. Sys., 206 N.C.App. 732, 734, 699 S.E.2d
124, 126 (2010) ...