Gilbert v. B & S Contractors, Inc.

343 S.E.2d 609, 81 N.C. App. 110, 1986 N.C. App. LEXIS 2265
CourtCourt of Appeals of North Carolina
DecidedJune 3, 1986
DocketNo. 8510IC700
StatusPublished
Cited by1 cases

This text of 343 S.E.2d 609 (Gilbert v. B & S Contractors, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gilbert v. B & S Contractors, Inc., 343 S.E.2d 609, 81 N.C. App. 110, 1986 N.C. App. LEXIS 2265 (N.C. Ct. App. 1986).

Opinion

COZORT, Judge.

James Gilbert, a 34-year-old cable vision lineman, was found dead at the base of a utility pole by two co-workers. The examining pathologist attributed the probable cause of death as marked atherosclerotic coronary artery disease, noting, however, that “the possibility of a low voltage injury cannot be completely excluded.” The North Carolina Industrial Commission denied Gilbert’s mother’s claim for workers’ compensation benefits, ruling that Gilbert’s death was not compensable under the Workers’ Compensation Act. We affirm. The facts follow.

James Gilbert, Dennis Lawing and Donald Herman were working as a three-man crew putting up cable for television on utility poles on Davis Park Road in Gaston County on the morning of 11 June 1982. They were “pulling” the cable, running it along the side of the road prior to climbing the pole to attach the cable to the pole. Lawing and Herman had gone on down the road around a curve. Gilbert had stayed behind at the utility pole, out of the vision of Lawing and Herman, watching for cars which would need to slow down before going around the curve where Lawing and Herman were pulling the cable. When Lawing and Herman came back around the curve, Gilbert was lying near the utility pole, apparently dead. Lawing did not recall hearing anything or seeing any sparks. Herman did not observe any blood [112]*112on Gilbert’s shirt. Lawing ran to a house down the road to have an ambulance called. When the ambulance arrived, emergency medical technicians attempted to revive Gilbert with cardiopulmonary resuscitation, to no avail. Gilbert was pronounced dead in the emergency room at Gaston Memorial Hospital, without ever having regained consciousness.

The pathological examination was conducted by Dr. Jon F. Gentry. He testified he found two things: “very severe significant coronary artery disease,” and “blood in his stomach.” He testified he could find no anatomic basis for the blood in the stomach: “I just mentioned it as a finding because it is a finding. What it means, I don’t know.” Dr. Gentry also found abrasions on the front of each leg below the knee. He testified that the most probable and the most likely cause of death was the coronary artery disease, which he described as severe enough to narrow the vessels such that the flow of blood in the heart was restricted to only 25 to 30 percent of normal. He was asked whether “a low voltage shock could or might have caused [Gilbert’s] death and the blood in his stomach.” Dr. Gentry testified:

[T]here is a possibility. I can’t exclude it. . . .
* * * *
[T]here were no wounds about the body.
* * * *
[A] person may die of a low-voltage injury and there’s nothing there you can see inside that body. . . .
* * * *
... I was looking for evidence of electrical injury which I did not find in terms of the examination ....
* * * *
I don’t have physical evidence to indicate such, but a low-voltage injury you may not see physical damage to the body like burns. ... I can’t exclude that.

The Deputy Commissioner for the Industrial Commission denied the claim, finding that Gilbert “died as a result of very severe and significant coronary artery disease that was neither [113]*113caused by, aggravated by or otherwise related to his employment. [Gilbert’s] death was not proximately caused by an injury by accident arising out of and in the course of his employment with defendant/employer.” The Full Commission adopted as its own and affirmed the Deputy Commissioner’s Opinion and Award.

On appeal, claimant contends the Commission erred by failing to accord to claimant two “presumptions of law” to which she was entitled: (1) “upon an unexplained death of an employee ... an evidentiary presumption or inference exists that the death arose out of the employment and is compensable”; and (2) “in close cases benefit of the doubt as to the issue of whether the injury arose out of and in the course of employment should be decided in the employee’s benefit in accordance with [the] established policy of liberal construction and application of the Workers’ Compensation Act.” We disagree.

Claimant contends she was entitled to the first presumption that, upon an unexplained death, there is an inference the death arose out of the employment and is compensable, relying on her interpretation of Harris v. Henry’s Auto Parts, Inc., 57 N.C. App. 90, 290 S.E. 2d 716, disc. rev. denied, 306 N.C. 384, 294 S.E. 2d 208 (1982). Claimant’s reliance on Harris is misplaced. In Harris, we held that there was a presumption in claimant’s favor where a night attendant at a self-service gas station was shot to death during his work hours on the station premises. The death was unexplained; there was no evidence of robbery or any other motive for the killing. In reviewing three North Carolina Supreme Court cases where an inference of compensable death was allowed, we stated that “[o]ur Supreme Court has held that death by violence raises the presumption that the death arose out of the employment when the employee is found at his place of employment during the time which he was to be working.” Id. at 94, 290 S.E. 2d at 719 [emphasis added]. The presumption is a rebuttable one and arises only if there is no evidence of what caused the death. Id., 290 S.E. 2d at 718. There are two reasons the case below is not covered by the rules set forth in Harris. First, Gilbert’s death was not a “violent” death, as was the case in Harris. Second, Gilbert’s death was not unexplained because the expert witness, Dr. Gentry, gave an explanation for Gilbert’s death: the most likely cause was severe coronary artery disease. We hold the claim[114]*114ant was not entitled to a presumption that Gilbert’s death arose out of his employment.

In her argument that she was entitled to a presumption that “close cases . . . should be decided in the employee’s benefit,” claimant cites Hoffman v. Ryder Truck Lines, Inc., 306 N.C. 502, 293 S.E. 2d 807 (1982). Again, we find claimant’s reliance on case law to be misplaced. In Hoffman, the court found an injury to be compensable where the primary issue to be resolved was “whether or not the employee was acting for the benefit of his employer ‘to any appreciable extent’ when the accident occurred.” Id. at 506, 293 S.E. 2d at 810, quoting Guest v. Iron & Metal Co., 241 N.C. 448, 452, 85 S.E. 2d 596, 600 (1955). The court held that “[s]uch a determination depends largely upon the unique facts of each particular case, and, in close cases, the benefit of the doubt concerning this issue should be given to the employee in accordance with the established policy of liberal construction and application of the Workers’ Compensation Act.” Id. [Emphasis added.] We face a substantially different issue in this case. The issue is whether Gilbert’s death was caused by coronary artery disease (not compensable) or electrical shock (compensable). The testimony from the examining pathologist was that the most probable and most likely cause of death was coronary artery disease, though he could not “exclude” the possibility that Gilbert could have died from a low-voltage electrical shock.

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Bluebook (online)
343 S.E.2d 609, 81 N.C. App. 110, 1986 N.C. App. LEXIS 2265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilbert-v-b-s-contractors-inc-ncctapp-1986.