SANDRA WALKER HORTON, WIFE OF, JAMES W. HORTON, JR. AND SANDRA
ASHLEY HORTON, DEPENDENT MINOR CHILDREN OF JAMES W. HORTON,
DECEASED, Employee, Plaintiff; v. POWELL PLUMBING & HEATING OF
N.C., INC., Employer; SELF-INSURED (Consolidated Administrators,
Inc.), Defendants
Workers' Compensation--death benefit--presumption that death the result of an accident--
not rebutted
Defendants did not rebut the presumption that decedent's death was accidental where
there was evidence that decedent committed suicide, but there was other competent evidence
that he did not and the Commission chose to believe the latter. Issues of credibility are for the
Commission. Appeal by defendants from Opinion and Award filed 10 June
1998 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 24 August 1999.
Farris & Farris, P.A., by Robert A. Farris, Jr. and Thomas
J. Farris, for plaintiff-appellees.
Cranfill, Sumner & Hartzog, L.L.P., by J. Michael Mackay,
for defendant-appellants.
GREENE, Judge.
Powell Plumbing and Heating of North Carolina, Inc.
(Employer) and Consolidated Administrators, Inc. (Carrier)
(collectively, Defendants) appeal from the Opinion and Award of
the North Carolina Industrial Commission (Commission) awarding
Sandra Walker Horton, wife of deceased employee, James W. Horton
(Decedent), and James W. Horton, Jr. and Sandra Ashley Horton,
dependent minor children of Decedent (collectively, Plaintiffs)
weekly compensation at $155.33 for 400 weeks, medical expenses,
burial expenses, attorney's fees, and costs.
In support of the Award, the Commission entered the
following pertinent Conclusions of Law:
1. . . . [W]hen an employee is found dead
at his place of work, there is a presumption
that the employee died by accident while in
the scope and course of employment and
without anything to the contrary, the claim
is compensable. Here, the [D]efendant hasfailed to sufficiently or convincingly rebut
the presumption in that it has not offered
any credible or convincing evidence to the
contrary. Defendant has offered some
evidence, but due to the numerous
inconsistencies and unanswered questions, the
evidence offered is not credible or
convincing and is not accepted as fact in
this matter to the extent that [D]efendant
would be able to sufficiently rebut the
. . . presumption.
2. The [D]ecedent died as a result of an
accident sustained while in the course and
scope of his employment with the [D]efendant-
employer.
In support of these conclusions, the Commission entered the
following pertinent Findings of Fact:
2. Decedent was found dead in the shop area
of the building at which [D]efendant-employer
conducted its business. . . . The cause of
his death as determined by the North Carolina
Medical Examiner was a gunshot wound to the
chest.
. . . .
7. . . . [T]here was no indication that
[D]ecedent had struggled with anybody.
8. David L. Deberry [Detective Deberry] was
the detective with the Guilford County
Sheriff's Department assigned to the case.
It was his opinion that [D]ecedent had
committed suicide. . . .
9. Detective Deberry's opinion was [based
in part on] the fact that he could not come
up with any leads that would indicate that
anybody else had any motive to kill
[D]ecedent. Additionally, [D]ecedent hadtraces of [gun] powder residue on his hand.
10. Detective Deberry found a gun [wrapped
in a shirt] on top of and at the rear of a
box, which was on top of a shelf and next to
a wall and which was some 12 to 13 feet above
the floor and to the rear of the location of
[D]ecedent's body. He theorized that after
the [D]ecedent shot himself, he tossed the
gun with his right hand across his left
shoulder up onto the box and shelf. . . .
. . . .
16. Decedent had gun powder residue in the
web of his hand and on the back of his hand
that was consistent with his holding the gun
in a normal fashion at the time of its
discharge. The gun powder pattern on
[D]ecedent's hand was also consistent with
his hand being in the area of the gun when
it discharged.
17. William S. Best of Forensic Analytical
Services and Testing was of the opinion that
the powder disbursement was consistent with
either [D]ecedent shooting himself or with
somebody else shooting [D]ecedent.
18. Detective Deberry said that [D]ecedent's
arms did not move after he was shot and that
the [D]ecedent did not move otherwise. If
[D]ecedent did not move his arm after being
shot, it would have been impossible for him
to . . . throw it [the gun] on top of the box
on the shelf.
19. When viewing the evidence as presented
by Detective Deberry, one is left with an
unclear picture of what happened and with
unanswered questions as to how [D]ecedent was
shot. If one believes Detective Deberry,
then [D]ecedent should have smeared blood
when he threw the gun over his left shoulder,
which did not happen. There is a remainingquestion of whether [D]ecedent could have
lived long enough to wrap the gun in the
shirt it was found in and then to throw it on
top of the box and shelf which cannot be
clearly and convincingly answered. Further,
it cannot be clearly and convincingly
answered whether the gun was wrapped in the
shirt after [D]ecedent shot himself or
whether he was shot by somebody else.
. . . .
22. Neither Detective Deberry, nor anybody
else, found a suicide note.
23. When Detective Deberry asked
[D]ecedent's family and co-workers
(employees), nobody had any indication that
[D]ecedent was depressed or suicidal.
Decedent's medical history did not have any
indication that he had a history of
depression or mental illness.
. . . .
26. A review of all the competent, credible,
and convincing evidence offered in thismatter leaves one with a lot of questions and
no answers of what really happened at the
time the gun discharged and who pulled the
trigger.
27. It is clear that no one knows for sure
how or by whom the [D]ecedent was shot. It
is clear that the undersigned cannot accept
the facts as Detective Deberry would have us
to believe, because they are not consistent
with the medical examiners report. For
example, on the one hand, Detective Deberry
believes that the [D]ecedent shot himself and
after doing so, wrapped the gun in a shirt
and threw it over his left shoulder with his
right hand and arm. However, on the other
hand, he also believes that the [D]ecedent
did not move his arms after being shot.
The pertinent evidence reveals that on 10 October 1994
Decedent's dead body was found on the premises of his employer,
Powell Plumbing & Heating of North Carolina, Inc. (Powell
Plumbing), a corporation owned by Decedent, where he had been
working just prior to his death.
Plaintiffs brought this action to recover workers'
compensation benefits for the death of Decedent. Decedent had
sustained a single gunshot wound to the upper left chest area,
which was determined to be the cause of death. The original
death certificate for Decedent listed the cause of death as a
"homicide," but eventually the Guilford County Sheriff's
Department determined that Decedent's death was a suicide,
resulting from a self-inflicted gunshot wound. The evidence shows that late in the evening of Sunday 9
October 1994, Decedent drove to Powell Plumbing and parked in
front of the business. Two employees of a business near Powell
Plumbing, who were taking a break at around 11:30 or 11:45 in the
evening, reported hearing two men loudly arguing somewhere in
the Main Street area near where the Decedent was found. Neither
witness saw these men, but there was another witness who reported
seeing a blue or dark colored mini sized pick-up truck backed in
the parking lot at about 11:30 that same night in front of the
building.
The next morning, James L. Lax (Mr. Lax), an employee of
Powell Plumbing, reported to work at the office between 6:00 and
6:30 a.m. Once inside the business, Mr. Lax found Decedent's
body lying face down in a pool of blood in the metal shop.
Although Mr. Lax testified at the hearing before the Commission
that he deactivated the burglar alarm before entering the
building, he reported to the Guilford County Sheriff's Department
on the day of his discovery that the green light of the alarm was
on, signifying the alarm was off.
The investigating officers of the Guilford County Sheriff's
Department found no signs of forced entry. During the initial
investigation on 10 October 1994, no weapon was found. It was
not until the next day, 11 October 1994, that a 22-caliber pistolwas located wrapped in a cloth and a work shirt. The pistol was
located in between two taller boxes on top of a smaller box
approximately 12 to 15 feet off the floor on a shelf suspended
from the ceiling.
There were no finger prints found on the handle of the
pistol matching those of Decedent's. Detective Deberry
speculated that after shooting himself in the chest Decedent
wiped his fingerprints from the pistol, wrapped the pistol in a
cloth and shirt, and from a kneeling position threw the pistol 12
to 15 feet in the air behind him on a shelf, without untucking
his shirt, without spreading blood from his wound anywhere, or
without disturbing the wrapping around the pistol.
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