in the Court of Appeals 5 April 2018
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
Permar, PLLC, by Kathy Stewart, for plaintiff-appellant.
Spilman Thomas & Battle, PLLC, by Kevin B. Cartledge, for
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.
and Procedural Background
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."
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
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 . . . ."
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
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.
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."
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
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
July 2017, the Full Commission issued an opinion and award
affirming the deputy commissioner's decision and denying
Brooks' claim for benefits. On 31 ...