Gray v. United Parcel Service, Inc.

739 S.E.2d 590, 226 N.C. App. 15, 2013 WL 1108319, 2013 N.C. App. LEXIS 288
CourtCourt of Appeals of North Carolina
DecidedMarch 19, 2013
DocketNo. COA12-1029
StatusPublished

This text of 739 S.E.2d 590 (Gray v. United Parcel Service, 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
Gray v. United Parcel Service, Inc., 739 S.E.2d 590, 226 N.C. App. 15, 2013 WL 1108319, 2013 N.C. App. LEXIS 288 (N.C. Ct. App. 2013).

Opinion

BRYANT, Judge.

[16]*16Where competent evidence supports the findings of fact and where the findings of fact justify the conclusions of law, we affirm the opinion and award of the Industrial Commission, denying benefits to plaintiff under the Workers’ Compensation Act.

Facts and Procedural History

On 29 November 2001, David D. Gray was working at the United Parcel Service (“UPS”) hub in Greensboro, North Carolina. Charles Gregory McDaniel, a fellow employee of Mr. Gray, testified that as he was walking to his truck1, he observed Mr. Gray standing in front of a row of trucks. McDaniel proceeded to get into his truck and began performing a safety check. As he was performing this check, McDaniel saw the brake lights and back-up lights of Mr. Gray’s truck turn on.

McDaniel saw Mr. Gray’s truck approaching his truck but did not see anyone in the cab of the truck. McDaniel blew his horn but the truck continued to back up until it struck McDaniel’s truck. McDaniel jumped out and saw Mr. Gray lying on the ground. Mr. Gray was lying on his back, his glasses were three to four inches away from his head and they were flattened.

As McDaniel approached Mr. Gray, Mr. Gray attempted to get up and stated that he was cold. McDaniel turned off Mr. Gray’s truck and then witnessed Mr. Gray attempt to get up again. McDaniel told Mr. Gray to lie still while he went to get help. Another witness to the incident, who was also an emergency medical technician, began assisting Mr. Gray. McDaniel testified that he heard Mr. Gray take his last breath and proceeded to perform CPR on Mr. Gray.

Mr. Gray was taken to Moses Cone Hospital where he was pronounced dead. Dr. John D. Butts, performed an autopsy on Mr. Gray and listed the cause of death as coronary atherosclerosis.

On 11 December 2001, UPS filed a Form 1A-1, “Workers Compensation - First Report of Injury or Illness,” which reported that Mr. Gray “suffered [a] heart attack while backing up [truck] and it rolled into another parked UPS [truck].” On 15 January 2002, the North Carolina Industrial Commission filed a Form 61, “Denial of Workers’ Compensation Claim,”denyingtheclaim.Afteraninvestigation,theIndustrial Commission determined that “the cause of death was not the result of an injury by accident. The fatality did not arise out of or in the course and scope of employment. Nor is it listed as an occupational disease.”

[17]*17On 30 April 2002, plaintiff Mary Gray, widow of Mr. Gray, filed a Form 18, “Notice of Accident to Employer and Claim of Employee, Representative, or Dependent,” stating that Mr. Gray “fell out of [his] truck striking his head which contributed to a heart attack resulting in his death.” On 3 May 2007, plaintiff filed a Form 33, “Request that Claim be Assigned for Hearing.”

Following a hearing on 29 October 2008, the North Carolina Industrial Commission entered an Opinion and Award on 25 June 2009 awarding benefits to plaintiff. Defendants UPS and Liberty Mutual Insurance Company appealed to the Full Commission. On 10 March 2010, the Full Commission entered an Opinion and Award affirming the award of benefits to plaintiff. On 9 April 2010 defendants appealed to the North Carolina Court of Appeals.

In Gray v. UPS, _ N.C. App. _, _, 713 S.E.2d 126 (2011) (“Gray i”), our Court reversed and remanded in part and affirmed in part, holding that the Industrial Commission erred in concluding that Mr. Gray’s death was a compensable injury. Id. at _, 713 S.E.2d at 127-30. We held that the Pickrell presumption2 applied “based upon the fact that plaintiffs intestate died while in the course and scope of his employment, but it was not clear whether his death was the result of an injury by accident arising out of employment.” Id. at__, 713 S.E.2d at 129. Because the presumption was rebutted by the testimony of defendants’ expert witness, Dr. Barry Welbome, we held that “the Commission must consider the issue of compensability as if the presumption did not exist, with the plaintiff having the burden of proof of showing that the death was a result of an accident arising out of the course and scope of employment.” Id.

Plaintiff filed a petition for discretionary review and petition for writ of certiorari to the North Carolina Supreme Court on 26 July 2011 both of which were denied.

[18]*18On 10 May 2012, the Full Commission entered an Opinion and Award, denying plaintiffs claim for benefits3. From this Opinion and Award, plaintiff appeals.

Plaintiff presents the following issues on appeal: whether the Full Commission erred (I) in concluding that Mr. Gray’s injuries and resulting death were not compensable; (II) in concluding that Mr. Gray’s heart attack and death were not the result of an accident arising out of or in the course of his employment; (III) in applying an incorrect medical causation standard; and (IV) in concluding that Dr. Charles Walker Harris, Jr.’s testimony was speculative.

Standard of Review

On appeal of cases from the Industrial Commission, our review is limited to two issues: Whether the Commission’s findings of fact are supported by competent evidence and whether the Commission’s conclusions of law are justified by its findings of fact. Because it is a fact-finding body, the Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony. The Commission’s findings of fact are conclusive on appeal if they are supported by any competent evidence. Accordingly, this Court does not have the right to weigh the evidence and decide the issue on the basis of its weight. The court’s duty goes no further than to determine whether the record contains any evidence tending to support the finding.

Shaw v. US Airways, Inc., _ N.C. App. _, _, 720 S.E.2d 688, 690 (2011) (citation omitted).

I and II

Plaintiff argues the trial court erred by denying her benefits under the Workers’ Compensation Act. Specifically, plaintiff asserts that she has met her burden of proof by showing that Mr. Gray’s death was the result of an accident arising out of the course and scope of his employment, and therefore, that his injury and resulting death were compensable.

[19]*19At the outset, we note that plaintiff does not challenge any of the Full Commission’s findings of fact or conclusions of law. Because plaintiff does not dispute the findings of fact, they are binding on appeal. See Coffey v. Weyerhaeuser Co., __ N.C. App. _, _, 720 S.E.2d 879, 881 (2012). Plaintiff does, however, argue that she has met her burden of persuasion by producing sufficient evidence to demonstrate that Mr. Gray’s heart attack was the result of an accident arising out of his employment. In essence, plaintiff is asking our Court to re-weigh the evidence presented before the Full Commission and to assign greater weight to the evidence presented in plaintiff’s favor. We reject this argument.

For purposes of our review, we do “not have the right to weigh the evidence and decide the issue on the basis of its weight.”

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Henry v. A. C. Lawrence Leather Co.
57 S.E.2d 760 (Supreme Court of North Carolina, 1950)
Coffey v. Weyerhaeuser Co.
720 S.E.2d 879 (Court of Appeals of North Carolina, 2012)
Gray v. United Parcel Services, Inc.
713 S.E.2d 126 (Court of Appeals of North Carolina, 2011)
Shaw v. US Airways, Inc.
720 S.E.2d 688 (Court of Appeals of North Carolina, 2011)
Hutchens v. Lee
729 S.E.2d 111 (Court of Appeals of North Carolina, 2012)

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Bluebook (online)
739 S.E.2d 590, 226 N.C. App. 15, 2013 WL 1108319, 2013 N.C. App. LEXIS 288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gray-v-united-parcel-service-inc-ncctapp-2013.