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Brooks v. City of Winston-Salem

Court of Appeals of North Carolina

May 15, 2018

LARRY BROOKS, Employee, Plaintiff
v.
CITY OF WINSTON-SALEM, Employer, SELF-INSURED, Defendant.

          Heard in the Court of Appeals 5 April 2018

          Appeal by plaintiff from opinion and award entered 19 July 2017 by the North Carolina Industrial Commission. North Carolina Industrial Commission, I.C. No. 15-056517

          Oxner Permar, PLLC, by Kathy Stewart, for plaintiff-appellant.

          Spilman Thomas & Battle, PLLC, by Kevin B. Cartledge, for defendant-appellee.

          DAVIS, JUDGE.

         In this appeal, we revisit the issue of when an employee's injury is deemed to have arisen out of his employment under the North Carolina Workers' Compensation Act. Larry Brooks appeals from an opinion and award of the North Carolina Industrial Commission denying his claim for workers' compensation benefits. Because we conclude that Brooks' injury occurred solely as a result of his own idiopathic condition rather than due to conduct traceable to his employer, we affirm.

         Factual and Procedural Background

         In October 2015, Brooks was employed by the City of Winston-Salem (the "City") as a Senior Crew Coordinator in the Utilities Department. He supervised a team of four employees who were performing water and sewer line repairs throughout Winston-Salem. The City allowed Brooks and the other employees on his team to take two 15-minute breaks and one 30-minute lunch break each day. As the supervisor of the group, Brooks was "responsible for deciding whether and when breaks would be taken, and [was] responsible for the crew during breaks."

         On 22 October 2015, Brooks was with his crew working at a jobsite. At some point during the day, Brooks and the other employees decided to take a lunch break at a nearby Sheetz gas station. Brooks ate his lunch in the City's truck while the other employees sat at a table outside the gas station. After he finished eating his meal, Brooks briefly joined the group at the table and then entered the gas station for the purpose of purchasing cigarettes.

         Inside the gas station, Brooks decided to buy an e-cigarette, a type of cigarette he had never previously smoked. He returned to the City's truck after making the purchase and began smoking the e-cigarette while sitting inside the vehicle. At all relevant times, the City maintained a "[t]obacco [f]ree" policy, which provided that "[s]moking cigarettes or e-cigarettes inside City vehicles or on City property [wa]s prohibited . . . ."

         As Brooks "ignited and inhaled the e-cigarette, " he began coughing "uncontrollably." In order to get some fresh air, he opened the vehicle's door and stepped out of the truck while continuing to cough. Brooks then "passed out and fell to the ground." He landed on the cement curb, causing injury to his right hip, back, and head.

         Brooks was diagnosed by Dr. Dahari Brooks, a board-certified orthopedist, with "L3, L4 transverse process fractures." Due to these injuries, he was assigned light duty work restrictions, which prevented him from returning to work in his prior position.

         The City filed a Form 19 (Employer's Report of Employee's Injury) on 29 October 2015 and a Form 61 (Denial of Workers' Compensation Claim) on 19 November 2015. On 28 December 2015, Brooks filed a Form 18 (Notice of Accident), alleging that "[w]hen [he] stepped out of his truck he passed out (from e-cig) causing him to fall to the ground injuring his back."

         On 13 July 2016, a hearing was held before Deputy Commissioner Michael T. Silver. Brooks and Julie Carter, a risk manager working for the City, each provided testimony. Depositions were later taken of Dr. Brooks and Phillip Kelley, a physician's assistant who had treated Brooks following his injury.

         On 21 November 2016, the deputy commissioner issued an opinion and award determining that "[Brooks'] injuries were not the result of an injury by accident arising out of and in the course of employment . . . ." Brooks appealed to the Full Commission.

         On 19 July 2017, the Full Commission issued an opinion and award affirming the deputy commissioner's decision and denying Brooks' claim for benefits. On 31 ...


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