Workers' Compensation--unexplained fall--Pickrell presumption inapplicable--injury
arising out of employment--insufficient findings
The Industrial Commission erred by concluding that plaintiff's unexplained fall which
caused an injury to his ear arose out of his employment as a lumber grader and by awarding
compensation to plaintiff because: (1) the Commission found no valid risk attributable to
plaintiff's employment that influenced plaintiff's injury; (2) the Pickrell presumption of
compensability does not apply to an unexplained injury not resulting in death even though
plaintiff cannot remember the details of his accident; and (3) even if the Pickrell presumption
applied, defendant employer presented sufficient evidence to rebut the presumption by offering
evidence that plaintiff's fall was due to a seizure or syncope with no work-related cause, which
required the Commission to weight the evidence and make appropriate findings of fact, but the
Commission failed to do so. Therefore, the case is remanded for findings as to whether
plaintiff's fall resulted from an idiopathic condition and, if so, whether the risks attributable to
plaintiff's employment contributed to the fall.
Chief Judge EAGLES dissenting.
The Twiford Law Firm, L.L.P., by Branch W. Vincent, III, for
plaintiff-appellee.
Cranfill, Sumner & Hartzog, L.L.P., by Jaye E. Bingham, for
defendant-appellants.
McGEE, Judge.
Defendants appeal an opinion and award by the North Carolina
Industrial Commission (Commission) awarding workers' compensation
payments to plaintiff for an injury to plaintiff's ear sustained
while working for defendant employer. Plaintiff testified that he
had worked as a lumber grader for defendant employer for some four
years prior to the injury. Plaintiff's job entailed sitting orstanding before a set of chains which carried boards to be graded.
A console to control the chains was located behind plaintiff, and
plaintiff had to turn around to stop the chains with the console.
Plaintiff testified that, on 19 January 1998, he remembered
waiting for a board to come, and the next thing he remembered was
lying on the floor of the grading booth, hearing his supervisor
calling his name. Plaintiff had no memory of hitting his head on
the console or of hitting the floor. When he regained
consciousness, plaintiff was lying on his right side, and his left
ear was purple and painful. Asked if he could recall whether he
had landed face first or on his side, plaintiff answered:
The only thing I can come up with is when I
was sitting, I was sitting on a stool. And
the only way it could have happened was me
[sic] to fall towards the left, onto the
console, and then onto the floor. That's the
only way I believe it could have happened.
But plaintiff testified he had no actual recollection of how he had
ended up on the floor. Plaintiff had no history of falling down
and had no idea why he had done so that day.
Defendant employer's vice-president for administration
testified that he was summoned by plaintiff's supervisor shortly
after plaintiff fell, and that when he arrived plaintiff was lying
on his stomach but moving his head and talking to the supervisor.
None of plaintiff's co-workers had seen plaintiff fall. The last
board plaintiff had graded was two to three feet from where
plaintiff had been standing, which meant that the chains had been
stopped a matter of minutes after plaintiff fell. The chains could
have been stopped by plaintiff hitting the console as he fell, or
by a co-worker when plaintiff was found shortly after his fall. None of plaintiff's co-workers were asked whether they had turned
off the chains.
The neurologist who examined plaintiff after the fall
testified by deposition that plaintiff's sudden loss of
consciousness, combined with the fact that plaintiff had bitten his
tongue when he fell, strongly suggested that plaintiff had suffered
a seizure. The neurologist believed that plaintiff's diabetes and
high blood sugar, as well as possible heart palpitations, might
have increased the risk of a seizure, but he could not attribute a
seizure to plaintiff's medical conditions alone. A blow to the
head could have caused a seizure, but such a blow would have had to
occur before plaintiff fell. The neurologist pointed out that
fifty percent of seizures have no determined cause.
The neurologist testified that, if plaintiff did not suffer a
seizure, he suffered a syncope, a brief loss of consciousness,
eighty to ninety percent of which have no determined cause. The
neurologist also concluded that the injury to plaintiff's ear did
not in itself indicate that plaintiff hit something before he hit
the floor but could very well have been caused by his ultimate
contact with the floor.
To be compensable under the North Carolina Workers'
Compensation Act, an employee's injury must be "by accident arising
out of and in the course of the employment[.]" N.C. Gen. Stat. §
97-2(6) (1999). A claimant must therefore prove three elements:
accident, arising out of, and in the course of employment. See
Hollar v. Furniture Co., 48 N.C. App. 489, 490, 269 S.E.2d 667, 669
(1980). In the present case, the Commission held, and defendantsdo not dispute, that plaintiff's fall itself was the unusual and
unforeseen occurrence that is the accident. Similarly, there is no
dispute that, given the time and place of plaintiff's injury, the
injury occurred in the course of plaintiff's employment. See id.
The issue on appeal, therefore, is whether plaintiff's injury
arose out of plaintiff's employment. "Where any reasonable
relationship to the employment exists, or employment is a
contributory cause, the court is justified in upholding the award
as 'arising out of employment.'" Allred v. Allred-Gardner, Inc.,
253 N.C. 554, 557, 117 S.E.2d 476, 479 (1960) (citations omitted).
"An accident has a reasonable relationship to the employment when
it is the result of a risk or hazard incident to the employment."
Harless v. Flynn, 1 N.C. App. 448, 455, 162 S.E.2d 47, 52 (1968).
"When the employee's idiopathic condition is the sole cause of the
injury, the injury does not arise out of the employment. The
injury does arise out of the employment if the idiopathic condition
of the employee combines with 'risk[s] attributable to the
employment' to cause the injury." Mills v. City of New Bern, 122
N.C. App. 283, 285, 468 S.E.2d 587, 589 (1996) (citations omitted).
"The question of whether an injury 'arises out of employment'
is a mixed question of law and fact and our review is limited to
whether 'the findings and conclusions are supported by competent
evidence.'" Id. at 284, 468 S.E.2d at 589 (citation omitted). The
Commission found that plaintiff, as a lumber grader,
would sit on a stool in close proximity to a
passing conveyor and with a control console
immediately behind him. From that stool,
plaintiff would have to lean forward to gradeand mark the boards as they pass by on a
conveyer and lean back to access the control
console. The Full Commission finds that this
aspect of plaintiff's employment subjects him
to a peculiar hazard to which the public is
not generally exposed.
The Commission found that, on 19 January 1998, plaintiff was
grading boards when he fell off his stool, struck his head on the
control console, and lost consciousness. The Commission made no
finding as to the cause of plaintiff's fall or whether an
idiopathic condition contributed to the fall. Based on its
findings of fact, the Commission concluded that, even if
plaintiff's fall was due in part to an idiopathic condition, the
fall was also a result of the risks attributable to his employment.
The Commission further concluded that plaintiff was entitled to a
presumption of compensability under Pickrell v. Motor Convoy, Inc.,
322 N.C. 363, 368 S.E.2d 582 (1988). The Commission therefore
awarded plaintiff compensation for his injury.
The Commission's finding of fact that plaintiff's work
entailed leaning over boards to grade them and leaning back to
access the control console is unsupported by competent evidence.
In describing his job as a lumber grader, plaintiff made no mention
of leaning over the boards to grade them, and specifically stated
that he would turn around, not lean backwards, to reach the console
behind him if he needed to stop the chains. Consequently, the
Commission's finding that plaintiff's job requirement to lean
forward and back subjected him to a peculiar hazard is likewise
unsupported by competent evidence. Because the Commission found no
valid risk attributable to plaintiff's employment that influencedplaintiff's injury, plaintiff is not entitled to compensation if
his fall was otherwise due to an idiopathic condition. See, e.g.,
Vause v. Equipment Co., 233 N.C. 88, 63 S.E.2d 173 (1951).
In the alternative, the Commission concluded that plaintiff
was entitled to a presumption of compensability under Pickrell. In
Pickrell, our Supreme Court held that a claimant for workers'
compensation death benefits is entitled to a presumption that an
unexplained injury resulting in death is compensable. The Supreme
Court considered such a presumption fair because
[e]mployers may be in a better position than
the family of the decedent to offer evidence
on the circumstances of the death. Their
employees ordinarily are the last to see the
decedent alive, and the first to discover the
body. They know the decedent's duties and
work assignments.
Pickrell, 322 N.C. at 370, 368 S.E.2d at 586. The same cannot be
said for an employee who has survived his injury, even an employee
who cannot remember the details of his accident. In the present
case, there is no reason to believe that defendant employer could
have known any more about the circumstances of plaintiff's fall
than did plaintiff himself. Because we see no potential inequality
of information, we decline to adopt the Pickrell presumption in
this workers' compensation case not resulting in death.
Moreover, even were a Pickrell presumption applicable to the
present case, defendants offered evidence that plaintiff's fall and
injury were due to a seizure or syncope with no work-related cause.
The Pickrell presumption shifts the burden of proving
compensability from the plaintiff to the defendant, but it does noteliminate the Commission's duty to weigh all of the evidence before
it and make appropriate findings of fact. Id. at 371, 368 S.E.2d
at 586. A defendant is entitled to rebut a Pickrell presumption.
See Bason v. Kraft Food Serv., Inc., 140 N.C. App. 124, 128, 535
S.E.2d 606, 609 (2000). We believe that defendants presented
sufficient evidence to rebut a Pickrell presumption, requiring the
Commission to weigh the evidence and make appropriate findings of
fact. The Commission did not do so.
Finally, defendants argue that the Commission's conclusion
that plaintiff hit his head on the control console as he fell is
also unsupported by competent evidence. But while there is no
direct evidence that plaintiff hit the console as he fell, there is
evidence by which the Commission could reasonably infer that such
contact occurred. However, the question of whether plaintiff
struck the control console as he fell has no bearing on the issue
of the compensability of plaintiff's injury. What happened after
plaintiff fell has no effect on the determination of what caused
plaintiff to fall in the first place. In addition, there is no
evidence by which the Commission could find on remand that the
presence of the console, alone, created a peculiar hazard causally
related to plaintiff's injury. Plaintiff's neurosurgeon
specifically testified that plaintiff's ear injury was no
particular indication of contact with the console, indicating that
the presence of the console had no aggravating effect on
plaintiff's injury.
"The basic rule, on which there is now general
agreement, is that the effects of such a fallare compensable if the employment places the
employee in a position increasing the
dangerous effects of a fall, such as on a
height, near machinery or sharp corners, or in
a moving vehicle."
Allred at 557, 117 S.E.2d at 479 (citation omitted) (emphasis added
and removed).
We therefore hold that the Commission's conclusion that
plaintiff's injury is compensable is unsupported by its findings of
fact. We reverse the Commission's opinion and award and remand to
the Commission for further findings of fact. The Commission must
determine whether plaintiff's fall resulted from an idiopathic
condition, or whether the cause of the fall is unexplained. If an
idiopathic condition played a role in the fall, plaintiff is
entitled to compensation only if risks attributable to his
employment contributed to the fall. See Mills, supra. If the
Commission concludes that the cause of the fall remains
unexplained, the Commission may award compensation only if it finds
falling while grading boards to be a risk or hazard incident to
plaintiff's employment. See Robbins v. Hosiery Mills, 220 N.C.
246, 248, 17 S.E.2d 20, 21 (1941).
Reversed and remanded.
Judge TYSON concurs.
Chief Judge EAGLES dissents.
EAGLES, Chief Judge, dissenting.
I respectfully dissent. Our Courts have not previously
applied the Pickrell presumption to a non-death case. However,consistent with the historically liberal interpretation of the
Workers' Compensation Act, I believe that the rationale supporting
the Pickrell presumption is also applicable here. See Adams v. AVX
Corporation, 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998) (citing
Hollman v. City of Raleigh, 273 N.C. 240, 252, 159 S.E.2d 874, 882
(1968)). The majority notes that the Pickrell Court considered
the presumption fair in part because “[e]mployers may be in a
better position than the family of the decedent to offer evidence
on the circumstances of the death.” Pickrell, 332 N.C. at 370, 368
S.E.2d at 586. The majority, however, declines to adopt the
presumption here reasoning that “[t]he same cannot be said for an
employee who has survived his injury, even an employee who cannot
remember the details of his accident.” I disagree.
The record indicates that the nature of plaintiff's injury
prevented him from offering any relevant testimony as to the cause
or circumstances surrounding his injury. The plaintiff had no
recollection of the events leading up to and resulting in his
injury. Plaintiff testified that “[a]ll I can say is one minute I
was grading boards and then the next minute I was hearing my
supervisor calling my name.” Plaintiff could not remember feeling
ill, falling or striking his head. Dr. Lloyd Hitchings testified
that “it was like a typical light switch. I'm minding my own
business, doing my job and then wham-- I wake up and there's the
ambulance looking at me.” This evidence shows that the nature of
plaintiff's injury, like the deceased plaintiff, prevents him from
offering testimony supporting his claim. Accordingly, I vote toapply the Pickrell presumption to factual situations like this one. <
br>
Though my research has not disclosed a case where our Courts
have determined whether or not this presumption may be applied in
a non-death context, I would hold that the plain language in
Pickrell allows for application in non-death cases. In crafting
this presumption, the Supreme Court stated the rule as follows:
In the absence of evidence to the contrary,
the presumption or inference will be indulged
in that injury or death arose out of
employment where the employee is found injured
at the place where his duty may have required
him to be, or where the employee is found dead
under circumstances indicating that death took
place within the time and space limits of the
employment. . . . Such presumptions are
rebuttable and they disappear on the
introduction of evidence to the contrary.
Pickrell v. Motor Convoy, Inc., 322 N.C. 363, 367, 368 S.E.2d 582,
584 (1988) (quoting 100 C.J.S. Workmen's Compensation § 513
(1958)(emphasis added)). By using this language, the Supreme Court
clearly indicates that there are situations other than death cases
where a presumption would be appropriate. I believe that the facts
here present this type of occasion. Accordingly, I would apply
Pickrell to plaintiff's claim.
The majority also holds that plaintiff's claim would fail even
with the benefit of the Pickrell presumption. According to the
majority, the defendants offered evidence that the plaintiff fell
due to a seizure or a syncope. Further, the majority holds that the
“question of whether plaintiff struck the control console as he
fell has no bearing on the issue of the compensability of
plaintiff's injury.” Again, I disagree. Our Courts have consistently held that “the effects of such a
fall are compensable if the employment places the employee in a
position increasing the dangerous effects of a fall, such as on a
height, near machinery or sharp corners or in a moving vehicle.”
Allred v. Allred-Gardner, Inc., 253 N.C. 554, 557, 117 S.E.2d 476,
479 (1960)(emphasis added). Notably, the majority concedes that
there was sufficient evidence for the Commission to find that
plaintiff had hit his head on the control console and the
Commission made findings to that effect. Findings of fact made by
the Industrial Commission “are conclusive on appeal when supported
by competent evidence, even though there be evidence that would
support findings to the contrary.” Russos v. Wheaton Indus., 145
N.C. App. 164, 166, 551 S.E.2d 456, 458 (2001)(citation omitted).
In its discussion, the majority seems to hold that the plaintiff's
injury may be compensable only if the plaintiff fell due to
striking his head on the control console. However, our case law
shows that so long as the employment places the employee “in a
position increasing the dangerous effects of a fall,” the injury is
compensable. Allred, 253 N.C. at 557, 117 S.E.2d at 479. Here, the
employee was required to sit on a stool near the conveyor line with
the control console behind him. There was competent evidence to
show that plaintiff fell and hit his head on that console.
Therefore, plaintiff's employment here exposed him to increased
dangers from a potential fall.
For these reasons I would affirm the opinion and award of the
Industrial Commission.
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