Minter v. Osborne Co.

487 S.E.2d 835, 127 N.C. App. 134, 1997 N.C. App. LEXIS 790
CourtCourt of Appeals of North Carolina
DecidedAugust 5, 1997
DocketCOA96-1220
StatusPublished
Cited by11 cases

This text of 487 S.E.2d 835 (Minter v. Osborne Co.) 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
Minter v. Osborne Co., 487 S.E.2d 835, 127 N.C. App. 134, 1997 N.C. App. LEXIS 790 (N.C. Ct. App. 1997).

Opinion

COZORT, Judge.

Plaintiff-employee was stung by an insect while working for defendant-employer. After hospital treatment, plaintiff suffered obstructive coronary artery disease. The Industrial Commission held that the sting was an injury by accident and directed defendant insurer to pay all medical expenses, including angioplasty. We find no compensable injury, and we reverse.

The evidence presented at the hearing before the Deputy Commissioner shows the following. On or about 30 August 1993, *135 plaintiff David Minter began work as a carpenter for defendant construction company. On 8 December 1993, Minter was stung by an insect while working on the roof at a job site. Plaintiff reported this sting to his supervisor and was taken to the doctor’s office. Plaintiff is allergic to bee stings, and at the doctor’s office, he was given epinephrine and Benadryl. At some point, plaintiff began complaining of chest pain and was transported to a hospital. Plaintiff was treated and released. Plaintiff returned later with increased swelling and chest pain and was admitted to the hospital.

At the hospital, diagnostic tests revealed that plaintiff had obstructive coronary artery disease. Plaintiff subsequently underwent surgery to remove this blockage. On 20 January 1994, Minter made a claim for workers’ compensation benefits.

The Industrial Commission found that plaintiff “sustained an injury by accident arising out of and in the course of his employment with defendant-employer materially aggravating] his pre-existing coronary artery disease for the worse.” Plaintiff was awarded temporary total disability, and defendant was also directed to pay “all reasonable medical expenses incurred or to be incurred as the result of plaintiff’s injury by accident on 8 December 1994 and the aggravation thereby of his coronary artery disease.” Commissioner Dianne C. Sellers dissented, opining that plaintiff’s “injury did not arise out of his employment with defendant since plaintiff’s employment did not place him at a greater risk of sustaining an insect bite or sting than the public generally.” Defendants appeal.

Defendants first contend that plaintiff’s injury did not arise out of his employment. We agree.

To be compensable, an insect sting must be an injury by accident which arose out of and in the course of plaintiff’s employment. N.C. Gen. Stat. § 97-2(6) (1996 Cum. Supp.). Finding no published North Carolina cases on insect bites or stings with respect to compensability under workers’ compensation claims, we turn to cases from other jurisdictions for guidance.

The jurisdictions which have addressed this issue have considered it in terms of the risk of insect bite to which the employee is exposed due to his employment. In Renshaw v. Merrigol-Adler Bakery, 212 Neb. 662, 325 N.W.2d 46 (1982), the Nebraska Supreme Court held that the employee could not recover workers’ compensation benefits because he had not shown that he was at greater *136 risk of being stung than the risk to which the general public is exposed. In Dawson v. A & H Mfg. Co., 463 A.2d 519 (R.I. 1983), the Rhode Island Supreme Court affirmed the Commission’s denial of benefits where there was no evidence regarding the nexus between the employee’s sting and his employment as a stock boy. The Rhode Island court adopted an actual risk test where the employee was required to show that the risk of sting, even though common to the public, was in fact a risk of his employment. Id. at 521. In his commentary regarding the Dawson case, Professor Lex Larson describes the test the court applied as indistinguishable from the increased risk test. 1 A. Larson & L. Larson, Larson’s Workers’ Compensation Law § 8.6 (1996).

The case upon which our Commission relied is Poinsetta Gifts v. Evans, 393 So. 2d 8 (Fla. Dist. Ct. App. 1980). In that case the Florida Industrial Commission awarded compensation for an employee who was hypersensitive to bees. The award was affirmed per curiam without an opinion. In the accompanying dissenting opinion is a statement to the effect that the majority affirmed the award because the employee was at work when she was stung; therefore, her work placed her in a position of risk. Id. at 9. We find our Commission’s reliance on this case is misplaced. Under other areas of workers’ compensation law our Supreme Court has rejected the positional risk doctrine. See Roberts v. Burlington Industries, 321 N.C. 350, 358, 364 S.E.2d 417, 423 (1988) (employee traveling home from business trip killed when he attempted to assist an injured pedestrian was not an injury arising out of course of employment).

The test our courts have used in similar situations to determine whether the injury arose out of employment is the increased risk test. We adopt the increased risk test for this case. In Pope v. Goodson, 249 N.C. 690, 107 S.E.2d 524 (1959), our Supreme Court applied the increased risk test to an employee who was struck by lightning. The court found the evidence showed that

Pope, when killed by lightning, by reason of his employment had on wet clothes, and had tied around his waist a nail apron containing nails, and that these circumstances, incidental to his employment, peculiarly exposed him to a risk of injury from lightning greater than that of other persons in the community. Such being the case his death is compensable under our Workmen’s Compensation Act as an injury by accident arising out of and in the course of his employment.

*137 Id. at 698, 107 S.E.2d at 529-30. See also, Dillingham v. Yeargin Construction Co., 320 N.C. 499, 358 S.E.2d 380, reh’g denied, 320 N.C. 639, 360 S.E.2d 84 (1987) (applied increased risk test to employee who suffered cardiac arrest while wearing heavy radiation suit in high temperature workplace); Culpepper v. Fairfield Sapphire Valley, 93 N.C. App. 242, 248-49, 377 S.E.2d 777, 781-82, aff’d, 325 N.C. 702, 386 S.E.2d 174 (1989) (cocktail waitress’ employment placed her at increased risk of sexual assault not shared by general public). The increased risk test is also incorporated into the Workers’ Compensation statute in regards to occupational diseases. N.C. Gen. Stat. § 97-53(13) (1991) excludes from occupational diseases those to which the general public “is equally exposed outside of the employment.”

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Bluebook (online)
487 S.E.2d 835, 127 N.C. App. 134, 1997 N.C. App. LEXIS 790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/minter-v-osborne-co-ncctapp-1997.