Paredones v. Wrenn Bros.

• Court: Court of Appeals of North Carolina
• Decided: May 6, 2014
• Docket: 13-910
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-910 NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

CHRISTIAN MURILLO PAREDONES and GISELL GUADALUPE MURILLO PAREDONES, Minor Children of Decedent-Employee FELIPE PACHECO FLORES a/k/a MURILLO ARELLANO GUMERCINDO, Plaintiffs

v. North Carolina Industrial Commission I.C. No. W60905 WRENN BROTHERS, Employer, and CONTINENTAL INDEMNITY COMPANY, Carrier, Defendants

Appeal by plaintiffs from opinion and award entered 9 April

2013 by the North Carolina Industrial Commission. Heard in the

Court of Appeals 8 January 2014.

Moody, Williams, Roper & Lee, LLP, by C. Todd Roper, for plaintiff-appellants.

Hedrick Gardner Kincheloe & Garofalo, LLP, by M. Duane Jones and Vachelle D. Willis, for defendant-appellees.

CALABRIA, Judge.

Christian Murillo Paredones and Gisell Guadalupe Murillo

Paredones (collectively “plaintiffs”), the minor children of -2- Felipe Pacheco Flores a/k/a Murillo Arellano Gumercindo

(“Flores”), appeal from an opinion and award entered by the Full

Commission of the North Carolina Industrial Commission (“the

Commission”) which denied plaintiffs’ claim for workers’

compensation death benefits. The Full Commission concluded that

Flores’s death did not arise out of his employment with Wrenn

Brothers (“defendant-employer”). We affirm.

Flores came to the United States from Mexico and used

falsified documentation to obtain employment in defendant-

employer’s lumber mill in Siler City, North Carolina in 1996.

On 8 September 2008, Flores was working in the planer room of

defendant-employer’s plant when one of his fellow workers

indicated that the plant was about to be raided by the

Immigration and Naturalization Service (“INS”). Flores and

others attempted to run away, but after 100 yards Flores

collapsed and died. An autopsy later determined that Flores had

suffered a fatal heart attack.

On 18 December 2009, the administrator of Flores’s estate

filed a Form 18 seeking workers’ compensation benefits for

Flores’s death. Defendant-employer denied the claim, which was

then assigned for hearing. On 8 October 2012, Deputy

Commissioner Philip A. Baddour filed an opinion and award -3- denying plaintiffs’ claim because Flores’s death did not arise

out of his employment with defendant-employer. Plaintiffs then

appealed to the Full Commission, which affirmed the deputy

commissioner’s opinion and award on 9 April 2013. Plaintiffs

appeal.

Review of an opinion and award of the Industrial Commission

“is limited to consideration of whether competent evidence

supports the Commission’s findings of fact and whether the

findings support the Commission’s conclusions of law. This

‘court’s duty goes no further than to determine whether the

record contains any evidence tending to support the finding.’”

Richardson v. Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660,

669 S.E.2d 582, 584 (2008) (citation omitted) (quoting Anderson

v. Lincoln Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274

(1965)).

Plaintiffs argue that the Commission erred by concluding

that Flores’s death was not compensable. We disagree.

“For an injury to be compensable under the Worker’s

Compensation Act, the claimant must prove three elements: (1)

that the injury was caused by an accident; (2) that the injury

was sustained in the course of the employment; and (3) that the

injury arose out of the employment.” Hollar v. Furniture Co., 48 -4- N.C. App. 489, 490, 269 S.E.2d 667, 669 (1980). In the instant

case, the Commission concluded that plaintiffs were not entitled

to death benefits because they failed to prove that Flores’s

death arose out of his employment.

The words “arising out of the employment” refer to the origin or cause of the accidental injury. [A] contributing proximate cause of the injury must be a risk inherent or incidental to the employment, and must be one to which the employee would not have been equally exposed apart from the employment. Under this “increased risk” analysis, the causative danger must be peculiar to the work and not common to the neighborhood.

Chavis v. TLC Home Health Care, 172 N.C. App. 366, 372, 616

S.E.2d 403, 409 (2005)(internal quotations and citations

omitted). In its opinion and award denying plaintiffs’ claim,

the Commission found that Flores “died as a result of his

attempt to evade what he believed to be an imminent raid by

immigration officials.” The Commission further found that

Flores “was equally exposed to the risks associated with being

an illegal immigrant, including being apprehended due to his

illegal status, apart from his employment.” Based upon these

findings, the Commission concluded that Flores’s death did not

arise from his employment. -5- Plaintiffs argue that the Commission’s findings were not

supported by the evidence. Specifically, plaintiffs point to

evidence that defendant-employer had twenty-five to thirty

Hispanic employees, that there were chicken plants in the area

which had recently been raided by INS, and that defendant-

employer had increased awareness of immigration raids.

Plaintiffs contend that this evidence demonstrated that

defendant-employer was subject to a heightened risk of an

immigration raid and that this heightened risk was inherent to

Flores’s employment.

However, the Commission specifically determined that this

evidence was insufficient to support plaintiffs’ theory, finding

that there was no direct evidence that the racial makeup of

defendant-employer’s workforce increased the risk of an

immigration raid. This finding is supported by the evidence

presented during the hearing. Defendant-employer’s secretary

Robert Wrenn specifically testified that there had been no

immigration raids in Siler City, where defendant-employer’s

plant was located. Moreover, the fact that defendant-employer

had many Hispanic employees proves nothing in and of itself.

There was no evidence that these Hispanic employees were not

legal workers or that defendant-employer sought to hire illegal -6- workers. There was also no evidence presented that defendant-

employer had any knowledge that Flores had falsified documents

in order to obtain employment from defendant-employer. In the

absence of any direct connection between defendant-employer and

undocumented workers, the Commission was free as the finder of

fact to reject the inference that plaintiffs attempted to draw

between defendant-employer’s Hispanic employees and a possible

immigration raid. See Cooper v. Cooper Enters., Inc., 168 N.C.

App. 562, 564, 608 S.E.2d 104, 106 (2005)(“The Industrial

Commission is the sole judge of the weight and credibility of

the evidence[.]” (internal quotations and citation omitted)).

Ultimately, the Commission’s findings (1) that Flores died

while fleeing from an apparent immigration raid and (2) that

there was no evidence of an increased risk to Flores of an

immigration raid as part of his employment with defendant-

employer were supported by competent evidence. These findings

adequately demonstrated that Flores’s death was caused by a risk

which was neither “inherent or incidental to the employment” nor

a risk to which Flores “would not have been equally exposed

apart from the employment.” Chavis, 172 N.C. App. at 372, 616

S.E.2d at 409. Thus, the Commission properly concluded that

Flores’s death did not arise out of his employment and that, as -7- a result, plaintiffs were not entitled to workers’ compensation

benefits. The Commission’s opinion and award denying

plaintiffs’ claim is affirmed.

Affirmed.

Judges BRYANT and GEER concur.

Report per Rule 30(e).