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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 print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
CHRISTINA SISK, Employee, Plaintiff, v. TAR HEEL CAPITAL CORP.,
Employer, and COMPANION PROPERTY & CASUALTY GROUP, Carrier,
Filed: 19 October 2004
1. Workers' Compensation_sexual harassment_not compensable
Emotional injuries resulting from sexual harassment are not compensable under the
Workers' Compensation Act.
2. Workers' Compensation_sexual harassment_assault_not particular to job
A supervisor's inappropriate conversations and uninvited touchings were not covered
under the Workers' Compensation Act as an assault. The supervisor's conduct was not shown to
result from dangers particular to plaintiff's work.
Appeal by plaintiff from opinion and award entered 24 October
2003 by Commissioner Bernadine S. Ballance. Heard in the Court of
Appeals 23 September 2004.
George W. Moore, for plaintiff-appellant.
C. Michelle Sain, for defendants-appellees.
Christina Sisk (plaintiff) appeals an Opinion and Award
filed by the Full Commission of North Carolina Industrial
Commission (Commission) finding plaintiff sustained an injury by
accident occurring in the course of, but did not arise out of her
employment. Tar Heel Capital Corporation (defendant-employer)
and Companion Property and Casualty Group (collectively,
defendants) filed cross-assignments of error arguing: (1)
plaintiff's testimony concerning her employment conditions with
defendant-employer lacked credibility; (2) plaintiff's injury didnot occur in the course of her employment with defendant-employer;
and (3) plaintiff has not been totally disabled since 16 August
2001. We affirm.
Plaintiff began work for defendant-employer in July 1992.
Defendant-employer operates a Wendy's Restaurant in Forest City,
North Carolina. Plaintiff started as a crew employee and was
promoted to shift supervisor in 1998. At both her initial hiring
and subsequent promotion, defendant-employer presented plaintiff
with documentation of defendant-employer's anti-harassment policy
(the policy). The policy provided a procedure that employees
should follow if they became victims of any form of harassment.
Plaintiff signed acknowledgments of receipt of the policy on both
occasions and took several quizzes testing her knowledge of the
In March 2001, James Johnson (Johnson) became general
manager of the restaurant where plaintiff worked as a shift
supervisor. Johnson filed disciplinary notices against plaintiff
on two separate occasions in May 2001. Plaintiff testified that
around that time, Johnson began making sexually suggestive comments
to her, touching her in inappropriate places, pulling her onto his
lap, and placing his hand down her shirt. She testified Johnson's
actions left bruises where he grabbed her.
On 17 July 2001, plaintiff gave notice of her resignation to
Doug Kropelnicki (Kropelnicki), the district manager, and Wanda
Farmer (Farmer), director of human resources. Her noticeincluded, I can no longer work with harassment at the hands of
James Johnson. This was the first notice by plaintiff to
defendant-employer of Johnson's behavior. Plaintiff acknowledged
she had not followed defendant-employer's anti-harassment
Plaintiff visited a family practice physician complaining of
panic attacks on 18 July 2001. The physician prescribed medication
to help with anxiety and wrote plaintiff a note to remain out of
work until 23 July 2001.
Defendant-employer conducted an investigation of Johnson's
behavior and immediately suspended and eventually terminated his
employment on 19 July 2001. That day, Tad Dolbier (Dolbier),
director of operations, called plaintiff and told her Johnson had
been fired, and that he appreciated plaintiff as a valued employee.
He asked why she did not follow the anti-harassment procedures.
Plaintiff responded, I did not want to call and create a big
stink, and if I acted like it wasn't happening, maybe it would
stop. Dolbier concluded by informing plaintiff that due to her
doctor's note, she was entitled paid leave until 23 July 2001.
Plaintiff did not return to work.
Farmer sent plaintiff a letter dated 30 July 2001 inquiring of
her employment status. Farmer indicated plaintiff's job would
remain open until 6 August 2001, but that her absences since 23
July 2001 would be unpaid. Farmer requested a phone call for an
update. Plaintiff's attorney responded to Farmer's letter.
Plaintiff contacted her family physician on 6 August 2001. She requested, but was denied, another note saying she could not
return to work until 8 August 2001. Plaintiff next sought medical
attention from Dr. Michael Knoelke (Dr. Knoelke), a psychiatrist
on 16 August 2001. Dr. Knoelke testified plaintiff complained of
memories of Johnson's behavior that affected her ability to work
and drive. Dr. Knoelke diagnosed plaintiff with post traumatic
stress disorder including panic attacks and major depressive
disorder. Plaintiff visited Dr. Knoelke on three occasions between
September 2001 and May 2002. Each visit resulted in modifying her
medication due to her varying levels of stress and depression.
Plaintiff filed a Form 18 with the Commission on 20 August
2001 alleging she was continuously assaulted and harassed by her
general manager, James Johnson, [and] she began having panic
attacks . . . sought medical treatment . . . [and] has been unable
to work. Plaintiff sought compensation from 16 July 2001 forward.
Defendants denied plaintiff's claim on 10 September 2001.
Plaintiff filed a Form 33 requesting her claim be assigned for
The deputy commissioner filed an Opinion and Award on 30
November 2002, which found that Johnson made sexually suggestive
remarks, touched plaintiff inappropriately, pulled plaintiff onto
his lap, placed his hand down her shirt, and had used his
supervisory position to place plaintiff at risk. The deputy
commissioner found plaintiff became emotionally upset, was
diagnosed with post traumatic stress disorder including panic
attacks and major depressive disorder, and currently receivedtreatment from Dr. Knoelke. The deputy commissioner concluded as
a matter of law that plaintiff suffered an injury by accident and
was entitled to total disability [and] medical expenses incurred
from 18 July 2001 until she returned to work, or by further order
of the Commission. Defendants appealed to the Full Commission.
The Full Commission reviewed the case on 22 May 2003 and found
the same facts as the deputy commissioner. The Full Commission
added that based on prior appellate decisions, the Full Commission
must find as fact that plaintiff's injury did not arise out of the
nature of her employment [and] [p]laintiff has also failed to show
that she contracted an occupational disease . . . . Hogan v.
Forsyth Country Club Co., 79 N.C. App. 483, 340 S.E.2d 116, disc.
rev. denied, 317 N.C. 334, 346 S.E.2d 140 (1986); Gallimore v.
Marilyn's Shoes, 292 N.C. 399, 403, 233 S.E.2d 529, 532 (1977).
The Commission's conclusions of law determined plaintiff
established that she sustained an injury by accident occurring in
the course of her employment with [defendant], but she failed to
establish that her injury arose out of the employment.
Specifically, the Commission stated, sexual assaults are not
deemed to be incident to or a natural and probable consequence of
the employment under current law. Plaintiff's claim under the
Worker's Compensation Act was denied. Plaintiff appeals.
The issues on appeal are whether: (1) an injury caused by
sexual harassment properly falls within the jurisdiction of the
Workers' Compensation Act (the Act); and (2) the Act coversinjuries resulting from intentional assaults by co-employees.
III. Standard of Review
We review de novo the Commission's conclusions of law. McRae
v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 701 (2004)
(citing Grantham v. R.G. Barry Corp., 127 N.C. App. 529, 534, 491
S.E.2d 678, 681 (1997)), disc. rev. denied, 347 N.C. 671, 500
S.E.2d 86 (1998). Under a de novo review, the court considers the
matter anew and freely substitutes its own judgment for that of the
Commission. In re Appeal of the Greens of Pine Glen Ltd. Part.,
356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003) (citing Mann Media,
Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9,
IV. Sexual Harassment and the Act
 Plaintiff argues sexual harassment and her resulting
mental injury are compensable under the Act. We disagree.
The Act covers injuries sustained from risks incidentally and
directly connected to that particular employment. Goodwin v.
Bright, 202 N.C. 481, 483-84, 163 S.E. 576, 577 (1932). The injury
is compensable if it arises out of and occurs in the course of
employment. Perry v. Bakeries Co., 262 N.C. 272, 274, 136 S.E.2d
643, 645 (1964). The employee must be performing duties authorized
by the employer in furtherance of the employer's business. Id.
Arises out of refers to an injury that is a natural and
probable consequence of the employment. Clark v. Burton Lines,
272 N.C. 433, 437, 158 S.E.2d 569, 571-72 (1968). There must be
some causal connection between the employment and the injury. Taylor v. Twin City Club, 260 N.C. 435, 438, 132 S.E.2d 865, 868
(1963); Cole v. Guilford County, 259 N.C. 724, 726-27, 131 S.E.2d
308, 311 (1963) (emphasis supplied). An injury occurring in the
course of employment happens when an employee is injured doing
something reasonably expected of him or her at the time, place, and
under the circumstances of the employment. Alford v. Chevrolet
Co., 246 N.C. 214, 217, 97 S.E.2d 869, 871 (1957). The injury must
be peculiar to the job and not a common threat to the public
generally. Sandy v. Stackhouse, Inc., 258 N.C. 194, 198, 128
S.E.2d 218, 221 (1962).
A similar issue arose in Hogan, 79 N.C. App. 483, 340 S.E.2d
116. An employee made sexually suggestive remarks to [the
plaintiff] while she was working, coaxing her to have sex with
him[,] . . . telling her that he wanted to 'take' her, . . .
brush[ed] up against her, rub[bed] [himself] against her buttocks,
and touch[ed] her buttocks with his hands. Id. at 490, 340 S.E.2d
at 121. This Court determined emotional injuries resulting from
sexual harassment were not a natural and probable consequence or
incident of the employment. Id. at 496, 340 S.E.2d at 124. We
held that sexual harassment is a risk the public generally is
exposed to and is neither covered nor barred by the Act. Id.
Here, plaintiff testified that Johnson made sexually
suggestive remarks, pulled her onto his lap, placed his hand down
her shirt, grabbed her buttocks, and pushed her against a wall and
a table. Plaintiff attempts to distinguish Hogan as controlling
precedent by contending her emotional injuries resulted fromphysical assaults not present in Hogan. We disagree. The facts in
Hogan are clear that the plaintiff endured similar verbal and
physical assaults as plaintiff at bar.
We are bound by prior decisions of this Court. In re Appeal
from Civil Penalty, 324 N.C. 373, 379 S.E.2d 30 (1989). This
assignment of error is overruled.
V. Intentional Assaults under the Act
 Plaintiff asserts her emotional injuries caused by
Johnson's intentional assaults are covered under the Act. We
The Act provides compensation for injuries resulting only from
accidents. Lawrence v. Mill, 265 N.C. 329, 330, 144 S.E.2d 3, 4
(1965); N.C. Gen. Stat. § 97-2(6) (2003). Our Supreme Court
recognized that an assault may be classified as an accident if it
is not expected or instigated by the employee. Withers v. Black,
230 N.C. 428, 433-34, 53 S.E.2d 668, 672-73 (1949). The assault
must derive from dangers particular to the job and not common in
everyday life. Gallimore, 292 N.C. at 403, 233 S.E.2d at 532;
Withers, 230 N.C. at 434, 53 S.E.2d at 673. If the motive
surrounding the assault is personal in nature and unrelated to the
employment, resulting injuries are not covered by the Act. Robbins
v. Nicholson, 281 N.C. 234, 238-39, 188 S.E.2d 350, 353-54 (1972).
Evidence shows Johnson verbally and physically assaulted
plaintiff with inappropriate conversation and uninvited touching
while at work. Plaintiff, a shift supervisor, worked directly
under Johnson, the general manager. Plaintiff suggests the dangerleading to the assaults resulted from Johnson's position as
plaintiff's superior. However, plaintiff fails to offer and the
record is devoid of evidence indicating the assaults resulted from
dangers particular to this job and should be imputed to the
employer. There is no indication Johnson's conduct resulted from
a dispute over employment issues or differed from harassment
experienced in everyday life. Instead, the evidence suggests his
motive and actions were entirely personal in nature. Johnson's
actions were foul behavior against plaintiff, but it was separate
from their common employment interests. This assignment of error
Emotional injuries resulting from sexual harassment are not
compensable under the Act. Hogan
, 79 N.C. App. at
496, 340 S.E.2d
at 124. Plaintiff failed to prove the intentional assaults
resulted from dangers particular to her position as shift
supervisor of a restaurant. We affirm the Commission's denial of
compensation to plaintiff. In light of our holding, we do not
address defendants' assignments of error.
Judges BRYANT and LEVINSON concur.
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