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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
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NO. COA01-999
NORTH CAROLINA COURT OF APPEALS
Filed: 6 August 2002
SABRINA PITILLO,
Employee/Plaintiff,
v.
N.C. DEPARTMENT OF ENVIRONMENTAL HEALTH AND NATURAL RESOURCES,
Employer/Self-Insured
KEY RISK MANAGEMENT SERVICES,
Carrier/Defendant.
Appeal by plaintiff from an Opinion and Award entered 2 May
2001 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 21 May 2002.
Law Offices of George W. Lennon, by George W. Lennon and
Michael W. Ballance, 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 annualperformance 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 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 fiancée 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 findingssupport 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.
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, aninjury 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, 519 S.E.2d 61, 63 (1999)
(quoting
Adams v. Burlington Industries, 61 N.C. App. 258, 260, 300
S.E.2d 455, 456 (1983)),
disc. review denied, 351 N.C. 351, 543
S.E.2d 124 (2000) (accident occurred where plaintiff was injured
when required to lift the legs of a 263 pound patient, a task she
had never in her eleven years of work done before). If an injury
occurs under normal working conditions, no accident has occurred.
Ruffin v. Compass Group, U.S.A., __ N.C. App. __, 563 S.E.2d 633
(2002).
Plaintiff correctly states that a mental or psychological
illness may be a compensable injury if it has occurred as a result
of an accident arising out of and in the course of the claimant's
employment.
See Jordan v. Central Piedmont Community College, 124
N.C. App. 112, 476 S.E.2d 410 (1996),
disc. review denied, 345 N.C.
753, 485 S.E.2d 53 (1997) (upholding award of benefits to prison
instructor who suffered post-traumatic stress disorder after inmate
students engaged in violent fight while plaintiff was isolated from
other prison employees or guards). However, an injury is not a
compensable injury by accident if the relevant events were
neither unexpected nor extraordinary, and it was only the
[claimants'] emotional response to the [events that] was the
precipitating factor.
Cody v. Snider Lumber Co., 328 N.C. 67, 71,
399 S.E.2d 104, 106 (1991).
In the case
sub judice, plaintiff does not allege that the
meeting's occurrence was unexpected, for it was called at her
request. She contends, however, that the presence of Arms and
Waddell, the subject matter discussed, and the participant's
behavior towards her, all were unexpected and traumatic. Her
testimony to this effect was contradicted by testimony from others
who attended the meeting, presenting issues of credibility to be
resolved by the Industrial Commission. In this regard, the
Industrial Commission made the following pertinent findings of
fact: . . . .
9. . . . [T]he greater weight of the evidence
presented . . . indicates that the discussion
was a routine, problem-solving meeting in
which everyone was treated courteously and
with respect. Plaintiff was not verbally
attacked, reprimanded or severely criticized.
Nothing in this meeting was different from
other meetings to discuss performance
evaluations. . . .
10. At the meeting plaintiff's supervisors
encouraged plaintiff to be less adversarial .
. . [and] to develop cooperative relationships
and to establish rapport with the industry in
order to facilitate compliance. . . .
. . . .
20. . . . [P]laintiff's account of the meeting
on July 24, 1997 . . . was not an accurate
representation of what actually occurred at
the meeting. The Commission gives greater
weight to the testimony of . . . the four
[other] individuals present [at the meeting.]
21. The Commission finds that the greater
weight of the competent, credible evidence of
record shows that the events of July 24, 1997
did not constitute an unexpected, unusual or
untoward occurrence, nor did the meeting
constitute an interruption of the work routine
and the introduction thereby of unusual
conditions likely to result in unexpected
consequences. The meeting to discuss
plaintiff's job performance evaluation was
requested by plaintiff and was an ordinary
incident of employment. Prior to the meeting,
plaintiff knew who would be present at the
meeting.
We conclude that these findings are amply supported by competent
evidence in the record, and further conclude that they support the
Industrial Commission's conclusion that plaintiff did not suffer an
injury by accident. Accordingly, this assignment of error is
overruled.
II.
Plaintiff argues next that the meeting of 24 July 1997, which
she has argued was an accident, also meets the second requirement
for a compensable injury, in that it was an accident that arises
out of and in the course of employment.
An injury is said to 'arise out of the employment' [w]here
any reasonable relationship to the employment exists, or employment
is a contributory cause[.] Allred v. Allred-Gardner, Inc., 253
N.C. 554, 557, 117 S.E.2d 476, 479 (1960) (citations omitted). The
determination of whether an injury 'arises out of employment' is
a mixed question of law and fact[.] Janney v. J.W. Jones Lumber
Co., 145 N.C. App. 402, 404, 550 S.E.2d 543, 546 (2001) (quoting
Mills v. City of New Bern, 122 N.C. App. 283, 284, 468 S.E.2d 587,
589 (1996)). This Court has held that an injury is compensable
under workers' compensation if it is . . . 'fairly traceable to the
employment' . . . or if 'any reasonable relationship to employment
exists.' Pittman v. International Paper Co., 132 N.C. App. 151,
154, 510 S.E.2d 705, 707 (1999) (quoting White v. Battleground
Veterinary Hosp., 62 N.C. App. 720, 723, 303 S.E.2d 547, 549, disc.
review denied, 309 N.C. 325, 307 S.E.2d 170 (1983)).
In the case sub judice, the Industrial Commission found in its
finding of fact number 22, that although plaintiff's job duties
generally were not a significant causal factor in the development
of [her] psychological condition[,] that the meeting of July 24,
1997 contributed to or was a significant causal factor in the
development of plaintiff's psychological condition. We concludethat this finding of fact was supported by competent evidence, and
thus must be upheld. However, this finding does not entitle
plaintiff to workers' compensation unless the injury was caused by
a workplace accident. Cody, 328 N.C. at 71, 399 S.E.2d at 106
(heart attack not compensable as injury by accident where the
events comprising the 'situation' . . . were neither unexpected
nor extraordinary, and heart attack was precipitated by claimant's
emotional overreaction to ordinary situation). Having upheld the
Industrial Commission's conclusion that the meeting of 24 July 1997
was not a workplace accident, we necessarily reject plaintiff's
contention that she suffered a compensable injury as a result of
the meeting. This assignment of error is overruled.
III.
Plaintiff argues next that the Industrial Commission erred by
concluding that she did not suffer from an occupational disease.
We disagree.
N.C.G.S. § 97-53 (2001) lists twenty-seven specifically
designated compensable occupational diseases. Although
psychological illness is not listed among these, N.C.G.S. § 97-
53(13) (2001) expands the definition of an occupational disease to
include [a]ny disease, [caused by] . . . conditions which are
characteristic of and peculiar to a particular trade, occupation or
employment, but excluding all ordinary diseases of life to which
the general public is equally exposed outside of the employment.
The burden is on the plaintiff to show that he suffered a
compensable occupational disease[.] Pressley v. SouthwesternFreight Lines, 144 N.C. App. 342, 346, 551 S.E.2d 118, 120 (2001).
In Pressley, this Court stated that:
the plaintiff must prove the following
elements: (1) the disease is characteristic of
and peculiar to persons engaged in a
particular trade or occupation in which the
plaintiff is engaged; (2) the disease is not
an ordinary disease of life to which the
public is equally exposed;and (3) there is a
causal connection between the disease and the
plaintiff's employment.
Pressley, 144 N.C. App. at 346, 551 S.E.2d at 120 (quoting Hansel
v. Sherman Textiles, 304 N.C. 44, 52, 283 S.E.2d 101, 106 (1981)).
Under appropriate circumstances, work-related depression or
other mental illness may be a compensable occupational disease.
Jordan v. Central Piedmont Community College, 124 N.C. App. 112,
476 S.E.2d 410 (1996); Baker v. City of Sanford, 120 N.C. App. 783,
463 S.E.2d 559 (1995), disc. review denied, 342 N.C. 651, 467
S.E.2d 703 (1996). However, the claimant must prove that the
mental illness or injury was due to stresses or conditions
different from those borne by the general public. Woody v.
Thomasville Upholstery Inc., 355 N.C. 483, 562 S.E.2d 422 (2002)
(adopting dissent in 146 N.C. App. 187, 202, 552 S.E.2d 202, 211
(2001)). Thus, the claimant must establish both that her
psychological illness is 'due to causes and conditions which are
characteristic of and peculiar to a particular trade, occupation or
employment' and that it is not 'an ordinary disease of life to
which the general public is equally exposed.' Booker v. Medical
Center, 297 N.C. 458, 468, 256 S.E.2d 189, 196 (1979) (quoting
N.C.G.S. § 97-53(13) (2001)); see also Norris v. Drexel HeritageFurnishings, 139 N.C. App. 620, 534 S.E.2d 259 (2000) (upholding
denial of claim based on occupational disease: although plaintiff's
fibromyalgia was caused or aggravated by employment with defendant,
there was no evidence that her employment with defendant placed
plaintiff at an increased risk of contracting or developing
fibromyalgia as compared to the general public not so employed).
In the case sub judice, the Commission made the following
pertinent findings:
. . . .
22. The greater weight of the evidence of
record fails to show that plaintiff's job
duties significantly contributed to or were a
significant causal factor in the development
of plaintiff's psychological condition. . . .
23. The greater weight of the medical evidence
fails to show that plaintiff's job as a waste
management specialist exposed her to an
increased risk of developing anxiety disorder
and depression than members of the general
public not so employed.
The Commission concluded that plaintiff failed to prove by the
greater weight of the evidence that she sustained a compensable
occupational disease. Plaintiff's employment with defendant-
employer did not place plaintiff at an increased risk of developing
anxiety disorder and depression than members of the general public
not so employed.
We hold that the Commission's findings are supported by
competent evidence. Although plaintiff testified to several minor
incidents at work in support of her contention that she suffered
from an occupational disease, no evidence was presented that these
incidents contributed to her emotional illness, nor that thediagnosed nervous breakdown or stress induced anxiety for which
she sought compensation were (1) characteristic of and peculiar to
[her] particular trade or occupation or employment; (2) not an
ordinary disease of life to which the public is equally exposed;
or that (3) there is a causal connection between the disease and
the plaintiff's employment. Pressley, 144 N.C. App. at 346, 551
S.E.2d at 120.
We conclude that the Industrial Commission's findings of fact
support its conclusion that plaintiff failed to establish that her
psychological depression or anxiety disorder was a compensable
occupational disease. Accordingly, this assignment of error is
overruled.
IV.
Plaintiff's final argument is that the Commission erred by
failing to rule on her motion to compel an accounting of
defendant's financial interactions with Dr. Arnoff. Before the
hearing, plaintiff moved to compel disclosure of all of defendants'
financial dealings with Dr. Arnoff, their medical witness, in order
to demonstrate bias connected to his financial relationship with
defendants.
Pursuant to Rule 10(b)(1) of the North Carolina Rules of
Appellate Procedure, the complaining party must obtain a ruling
upon the party's request, objection or motion in order to preserve
a question for appellate review. Plaintiff has presented no
evidence that she ever sought a ruling on her motion, and,
therefore, she did not preserve the question for appellate review. Moreover, although the Commission did not rule on plaintiff's
motion, plaintiff cross-examined Dr. Arnoff extensively during his
deposition concerning the amount of his fee; the fact that the fee
was paid directly to him, and not remitted to a hospital or other
third party; and the fact that his independent examinations in
workers' compensation cases generally were undertaken on behalf of
the defendant, and not the plaintiff. We conclude that, even
without a full accounting from Dr. Arnoff, plaintiff could have
adequately presented to the Commission any issues associated with
Dr. Arnoff's fees, and, thus, that the error, if any, in the
Commission's failure to rule on plaintiff's motion was harmless.
Accordingly, this assignment of error is overruled.
For the reasons discussed above, the opinion of the Industrial
Commission is
Affirmed.
Judges GREENE and BRYANT concur.
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