Pitillo v. NC DEPT. OF ENV. HEALTH

566 S.E.2d 807
CourtCourt of Appeals of North Carolina
DecidedAugust 6, 2002
DocketCOA01-999
StatusPublished

This text of 566 S.E.2d 807 (Pitillo v. NC DEPT. OF ENV. HEALTH) 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
Pitillo v. NC DEPT. OF ENV. HEALTH, 566 S.E.2d 807 (N.C. Ct. App. 2002).

Opinion

566 S.E.2d 807 (2002)

Sabrina PITILLO, Employee/Plaintiff,
v.
N.C. DEPARTMENT OF ENVIRONMENTAL HEALTH AND NATURAL RESOURCES, Employer/Self-Insured,
Key Risk Management Services, Carrier/Defendant.

No. COA01-999.

Court of Appeals of North Carolina.

August 6, 2002.

*809 Law Offices of George W. Lennon, by George W. Lennon and Michael W. Ballance, Raleigh, for plaintiff-appellant.

Attorney General Roy Cooper, by Special Deputy Attorney General Jonathan P. Babb, for defendant-appellees.

BIGGS, Judge.

Sabrina Pitillo (plaintiff) appeals from the Industrial Commission's denial of her workers' compensation claim. For the reasons that follow, we affirm the Industrial Commission.

Plaintiff began work for the North Carolina Department of Environmental Health and Natural Resources (defendant; with Key Risk Management Services, Inc., collectively, defendants), in 1995, as a waste management specialist. She was responsible for inspection of commercial hazardous waste facilities, which required travel to industrial work sites in order to ascertain whether companies were in compliance with applicable environmental laws and regulations. In June 1997, plaintiff received an annual performance review from her supervisor, Ms. Arms. She received ratings of "outstanding" or "very good" in twelve areas, and a rating of "good" in two areas, for an overall rating of "very good plus." Plaintiff was very upset that she was rated "good" in two areas, and angry that the "good" ratings were based in *810 part upon input from unidentified co-workers. To "appeal the inclusion of alleged comments" in her review, plaintiff sought a meeting with Mike Kelly, the deputy director of the Division of Waste Management, and Brenda Rivers, personnel officer in the division's department. Plaintiff wrote Kelly that Arms' performance evaluation was "arbitrary and capricious"; that she was "outraged" at her annual evaluation; and that she had decided to "stand up to this injustice."

The meeting requested by plaintiff took place in Raleigh, on 24 July 1997. In attendance were plaintiff, Kelly, Rivers, Arms, and Ann Waddell, the manager of employee relations for the Department. Rivers later testified that she informed plaintiff in advance that Arms and Waddell would be included. The meeting focused on plaintiff's job performance, and on her concerns about the annual evaluation. There was also discussion of areas in which her supervisor saw some room for improvement.

The meeting ended after two hours of discussion, with no change in plaintiff's employment status or her overall performance rating of "very good plus." After the meeting, as plaintiff was driving home, she became very upset, stopped driving, and called her fiancee for help. The following day, plaintiff met with Dr. Patel, her family doctor, who referred her to Dr. Patterson, a psychiatrist. Plaintiff received extensive psychiatric treatment during the following months, including medication, outpatient care for psychiatric illness, and psychiatric counseling from two psychiatrists.

On 21 August 1997, plaintiff filed an Industrial Commission Form 18 "Notice of Accident to Employer," in which she alleged that the 24 July 1997 meeting in Raleigh either constituted a workplace accident, or had precipitated an occupational disease. She sought workers' compensation benefits for "stress induced anxiety" and a "diagnosed nervous breakdown." Defendants denied her claim on 24 September 1997, and the matter was subsequently heard by a deputy commissioner of the Industrial Commission. On 28 March 2000 the deputy commissioner issued an opinion denying plaintiff's claim for workers' compensation benefits. Plaintiff appealed to the Full Commission for a hearing, and filed a motion to compel a full accounting of bills submitted and fees received by Dr. Arnoff, a defense witness. The Commission issued an opinion on 2 May 2001, denying plaintiff's claim for benefits. They did not rule on plaintiff's motion to compel an accounting of Dr. Arnoff's fees. Plaintiff appealed from the Commission's Opinion and Award.

Standard of Review

"The standard of appellate review of an opinion and award of the Industrial Commission in a workers' compensation case is whether there is any competent evidence in the record to support the Commission's findings of fact and whether these findings support the Commission's conclusions of law." Lineback v. Wake County Board of Commissioners, 126 N.C.App. 678, 680, 486 S.E.2d 252, 254 (1997). Moreover:

[T]he Industrial Commission is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. The Commission may accept or reject the testimony of a witness solely on the basis of whether it believes the witness or not.

Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982) (citation omitted). "The Commission chooses what findings to make based on its consideration of the evidence[, and this] court is not at liberty to supplement the Commission's findings[.]" Bailey v. Sears Roebuck & Co., 131 N.C.App. 649, 653, 508 S.E.2d 831, 834 (1998). The Industrial Commission's findings of fact "are conclusive upon appeal if supported by competent evidence," even if there is evidence to support a contrary finding, Morrison v. Burlington Industries, 304 N.C. 1, 6, 282 S.E.2d 458, 463 (1981), and may be set aside on appeal only "when there is a complete lack of competent evidence to support them[.]" Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000).

I.

Plaintiff argues first that the Commission erred in its conclusion that plaintiff did not suffer an "injury by accident." We disagree.

*811 Workers' compensation "does not provide compensation for injury, but only for injury by accident." O'Mary v. Clearing Corp., 261 N.C. 508, 510, 135 S.E.2d 193, 194 (1964). Thus, an injury is compensable under the North Carolina Workers' Compensation Act only if (1) it is caused by an "accident," and (2) the accident arises out of and in the course of employment. N.C.G.S. § 97-2(6) (2001). "The claimant bears the burden of proving these elements[,]" including the existence of an accident. Smith v. Pinkerton's Sec. and Investigations, 146 N.C.App. 278, 280, 552 S.E.2d 682, 684 (2001) (citing Pickrell v. Motor Convoy, Inc., 322 N.C. 363, 368 S.E.2d 582 (1988)). In the present case, plaintiff contends that the psychological trauma of her performance review meeting on 24 July 1997, constituted a workplace "accident," thus, meeting the first part of the statutory test for compensability.

An accident under the workers' compensation act has been defined as "`an unlooked for and untoward event which is not expected or designed by the person who suffers the injury,'" and which involves "`the interruption of the routine of work and the introduction thereby of unusual conditions likely to result in unexpected consequences.' " Calderwood v. Charlotte-Mecklenburg Hosp. Auth., 135 N.C.App. 112, 115,

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Allred v. Allred-Gardner, Incorporated
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Norris v. Drexel Heritage Furnishings, Inc./Masco
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Janney v. JW Jones Lumber Co., Inc.
550 S.E.2d 543 (Court of Appeals of North Carolina, 2001)
Baker v. City of Sanford
463 S.E.2d 559 (Court of Appeals of North Carolina, 1995)
Bailey v. Sears Roebuck & Co.
508 S.E.2d 831 (Court of Appeals of North Carolina, 1998)
Cody v. Snider Lumber Co.
399 S.E.2d 104 (Supreme Court of North Carolina, 1991)
Morrison v. Burlington Industries
282 S.E.2d 458 (Supreme Court of North Carolina, 1981)
Lineback v. Wake County Board of Commissioners
486 S.E.2d 252 (Court of Appeals of North Carolina, 1997)
Woody v. THOMASVILLE UPHOLSTERY EMPLOYER
552 S.E.2d 202 (Court of Appeals of North Carolina, 2001)
Pickrell v. Motor Convoy, Inc.
368 S.E.2d 582 (Supreme Court of North Carolina, 1988)
Woody v. Thomasville Upholstery Inc.
562 S.E.2d 422 (Supreme Court of North Carolina, 2002)
Mills v. City of New Bern
468 S.E.2d 587 (Court of Appeals of North Carolina, 1996)
Adams v. Burlington Industries, Inc.
300 S.E.2d 455 (Court of Appeals of North Carolina, 1983)
Ruffin v. Compass Group USA
563 S.E.2d 633 (Court of Appeals of North Carolina, 2002)
O'Mary v. Land Clearing Corporation
135 S.E.2d 193 (Supreme Court of North Carolina, 1964)
White v. Battleground Veterinary Hospital
303 S.E.2d 547 (Court of Appeals of North Carolina, 1983)
Hansel v. Sherman Textiles
283 S.E.2d 101 (Supreme Court of North Carolina, 1981)
Pittman v. International Paper Co.
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