KENNETH R. BURSELL, Employee, Plaintiff, v. GENERAL ELECTRIC
COMPANY, Employer, ELECTRIC INSURANCE COMPANY, Carrier,
Defendants
NO. COA04-1310
Appeal by plaintiff from opinion and award entered 25 May 2004
by the North Carolina Industrial Commission. Heard in the Court ofAppeals 13 June 2005.
Law Offices of George W. Lennon, by George W. Lennon, for
plaintiff-appellant.
Young Moore and Henderson P.A., by Jeffrey T. Linder, for
defendant-appellants.
MARTIN, Chief Judge.
Plaintiff appeals from an opinion and award of the North
Carolina Industrial Commission concluding that plaintiff had failed
to show he suffered an injury by accident or an occupational
disease. For the reasons that follow, we affirm in part, reverse
in part, and remand this case to the Commission.
On 4 October 2001, plaintiff filed a notice of accident to his
employer, defendant General Electric Company (“General Electric”),
alerting the company he had sustained “psychiatric trauma due to
false accusation of theft by the company” on the afternoon of 26
October 1999. General Electric denied plaintiff's claim, and the
case came for hearing before the Industrial Commission (“the
Commission”) on 14 October 2003.
The relevant facts, as found by the Commission, are as
follows: plaintiff began employment with General Electric in 1979.
In October of 1999, at the time of the alleged injury, plaintiff
worked in General Electric's aircraft section, where his duties“mainly consisted of gathering components together to make an
engine kit to ship to Ohio.” On 26 October 1999, plaintiff
assisted other employees in packing laptop computers into boxes.
Plaintiff remarked that it was unusual to be packing laptop
computers for surplus. At the end of plaintiff's shift, the packed
boxes containing the computers were “put to the side for pickup on
the next day.”
Two days later, managers for General Electric summoned
plaintiff for a meeting. Plaintiff believed he was being sought
out for receipt of an award. Instead, he was informed that some of
the laptop computers he packed were missing from the shipment.
Plaintiff denied any knowledge of the missing computers. The
Commission found that Andrea Hughes, a human resources manager for
General Electric, told plaintiff she had interviewed the other
employees who had packed the computers; that “none of their stories
matched;” and that she was therefore “firing” him. Plaintiff was
then escorted to his locker by a security guard, who took
plaintiff's employee identification badge and escorted him to the
parking lot, where he removed the parking sticker from plaintiff's
vehicle. Plaintiff was “extremely surprised and upset that he had
been fired.” The other employees were also fired.
The following week, General Electric
requested that plaintiff
return to work. When he returned, plaintiff was given a documentcalled “decision making leave” and was advised he had been on
“crisis suspension” because he was observed away from his work area
and in the parking lot without permission on 26 October 1999. He
was further cited for failing to secure property under his control.
Plaintiff appealed the crisis suspension to a peer review
committee. At the review hearing, plaintiff was “visibly shaking.”
The peer review committee sent plaintiff a letter reminding him of
rules regarding breaks away from the workstation. General Electric
found no evidence that plaintiff had stolen anything.
When plaintiff returned to work, many employees asked him
about the incident. He was harassed and called “a thief.” The
Commission found that “[p]eople were constantly pointing at
plaintiff” and that he became “nervous, panicky and paranoid.” He
could not sleep at night and began having panic attacks. Plaintiff
sought assistance for his symptoms and was referred through his
employment to Dr. Koff, a clinical psychologist, who diagnosed him
with “adjustment disorder with mixed features.” Dr. Koff testified
that, but for the October 1999 incident, plaintiff most likely
would not have developed his condition.
Plaintiff also sought treatment with Dr. Robert Weinstein, who
diagnosed plaintiff with “major depression with obsessions.” Dr.
Weinstein treated plaintiff with “supportive therapy and medicines
such as antidepressants, sleeping pills, and atypicalantipsychotics.” Dr. Weinstein testified that plaintiff would need
medication and support for the rest of his life and would not be
able to maintain regular attendance in any employment. He opined
that plaintiff's condition was caused by the circumstances
surrounding plaintiff's firing at work. After two years of
treatment, Dr. Weinstein placed plaintiff at maximum medical
improvement and stated he was permanently and totally disabled from
all types of employment. Dr. Weinstein noted that plaintiff was
also possibly suffering from post-traumatic stress disorder.
The Commission found that “[a]s a result of being accused of
stealing, fired and his treatment after he returned to work,
plaintiff developed 'major depression with obsessions' and possibly
post-traumatic stress disorder, which led to his incapacity to work
. . . .” The Commission also found that “the sudden meeting and
abrupt firing of plaintiff due to accusations of stealing were
unexpected and not reasonably designed by plaintiff[.]”
Nevertheless, the Commission found that plaintiff had failed to
show that the events surrounding his alleged injury “were unusual
workplace occurrences” so as to constitute an injury by accident.
In its conclusions of law, the Commission compared the present case
to the facts of Woody v. Thomasville Upholstery, Inc., 355 N.C.
483, 562 S.E.2d 422 (2002) and stated that “[p]laintiff has
arguably shown unfair treatment by his employer, which wasunexpected, but the fact that the unfair treatment was unexpected
does not make it an 'unusual' or 'unforeseen' condition of his
employment, under the rationale of Woody.” According to the
Commission, plaintiff had thus “not shown evidence of either a
compensable injury by accident or an occupational disease” and
entered an opinion and award denying his claim. Plaintiff appeals.
Defendants present several cross-assignments of error on appeal.
_______________________________________________________
Plaintiff argues the Commission erred in concluding that he
failed to show he sustained an injury by accident or an
occupational disease. By cross-assignments of error, defendants
argue the Commission erred in several of its pertinent findings of
fact. We hold the Commission's conclusions that plaintiff did not
sustain an injury by accident either directly contradict or are
unsupported by certain of its findings and that additional findings
are required to resolve the question. We conclude, however, that
the Commission properly concluded that plaintiff failed to show he
suffered from an occupational disease. With regard to defendants'
cross-assignments of error, we agree that certain of the
Commission's findings are unsupported by the evidence, but such
errors do not offer an alternative basis for affirming the
Commission's opinion and award.
In sum, we affirm in part, reverse
in part, and remand the opinion and award to the Commission.
[1] Plaintiff argues the Commission erred by concluding he
failed to show he sustained an injury by accident or an
occupational disease. This Court reviews an opinion and award of
the Industrial Commission to determine whether there is competent
evidence in the record to support the Commission's findings of fact
and whether these findings support the Commission's conclusions of
law.
Pitillo v. N.C. Dep't of Envtl. Health & Natural Res., 151
N.C. App. 641, 644, 566 S.E.2d 807, 810 (2002). Although plaintiff
originally assigned error to several of the Commission's findings
as unsupported by the evidence, his brief on appeal contains only
arguments pertaining to the Commission's conclusions of law. Thus,
plaintiff's assignments of error to the Commission's findings are
deemed abandoned. N.C. R. App. P. 28(a) (2005). Therefore, we
examine the Commission's findings in this case to determine whether
they support the Commission's conclusions of law that plaintiff
failed to sustain a compensable mental injury or occupational
disease in the course of his employment. We first consider whether
plaintiff has shown that he suffered a compensable injury by
accident arising out of and in the course of his employment.
A. Injury by Accident
Under the Workers' Compensation Act (“the Act”), a mental or
psychological illness may be a compensable injury if it hasoccurred 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, 118-19, 476 S.E.2d
410, 414 (1996) (stating that, “[w]e cannot conclude that mental
injuries by accident are not covered under the Act when we have
clearly awarded workers' compensation for mental conditions as
occupational diseases”),
disc. review denied, 345 N.C. 753, 485
S.E.2d 53 (1997). The claimant bears the burden of proving the
existence of an accident.
Pitillo, 151 N.C. App. at 645, 566
S.E.2d at 811.
An injury does not arise by accident “[i]f an
employee is injured while carrying on his usual tasks in the usual
way[.]”
Gunter v. Dayco Corp., 317 N.C. 670, 673, 346 S.E.2d 395,
397 (1986). “An accidental cause will be inferred, however, when
an interruption of the work routine and the introduction thereby of
unusual conditions likely to result in unexpected consequences
occurs.”
Id. To be an accident, the incident must have been for
the employee an “unlooked for and untoward event.”
Cody v. Snider
Lumber Co., 328 N.C. 67, 70, 399 S.E.2d 104, 106 (1991);
see also
Pitillo, 151 N.C. App. at 645, 566 S.E.2d at 811 (stating that
an
accident involves “'an unlooked for and untoward event which is not
expected or designed by the person who suffers the injury'”
involving “'the interruption of the routine of work and the
introduction thereby of unusual conditions likely to result inunexpected consequences.'”)
(quoting
Calderwood v.
Charlotte-Mecklenburg Hosp. Auth., 135 N.C. App. 112, 115, 519
S.E.2d 61, 63 (1999),
disc. review denied, 351 N.C. 351, 543 S.E.2d
124 (2000)).
In
Pitillo, this Court held that the Commission's findings of
fact supported its conclusion that the plaintiff had failed to show
a compensable mental injury. The
Pitillo plaintiff alleged she
suffered a nervous breakdown and stress-induced anxiety after
meeting with her supervisor regarding a performance review. The
Commission found the plaintiff had initiated the meeting, the
meeting was not out of the ordinary, and everyone involved was
treated courteously. Specifically, the Commission found that “the
discussion was a routine, problem-solving meeting;” that “[n]othing
in this meeting was different from other meetings to discuss
performance evaluations;” and that “[t]he meeting to discuss
plaintiff's job performance evaluation was requested by plaintiff
and was an ordinary incident of employment.”
Pitillo, 151 N.C.
App. at 646, 566 S.E.2d at 811-12. Based on these findings, the
Commission concluded the meeting could not be considered an
“unlooked for or untoward event” or an interruption of the work
routine so as to be considered an “accident” under the Act.
Similarly, in
Knight v. Abbott Laboratories, 160 N.C. App.
542, 586 S.E.2d 544 (2003), the Commission denied a mental injuryclaim by a plaintiff who allegedly developed post-traumatic stress
disorder and recurrent major depression after an argument with her
supervisor. The Commission found that the plaintiff had initiated
the meeting with her supervisor and that “the confrontation . . .
did not constitute an unexpected, unusual[,] or untoward
occurrence; nor did it constitute an interruption of the work
routine and the introduction thereby of unusual conditions likely
to result in unexpected consequences.”
Id. at 545, 586 S.E.2d at
546. This Court affirmed the opinion and award of the Commission,
stating that “[t]he evidence shows that plaintiff deliberately
initiated the meeting with [her supervisor] to voice her
disagreement with his decision to award the vacation day to another
employee. It is not unexpected that this would lead to a heated
discussion involving raised voices on both the part of the
supervisor and employee.”
Id. at 546, 586 S.E.2d at 547. The
Knight Court compared its case to
Pitillo:
the evidence at most reveals the events
themselves did not result in injury, but
rather that it was [the] plaintiff's emotional
response to the meeting, which she had
initiated, that resulted in her psychological
harm.
See Pitillo, 151 N.C. App. at 645-46,
566 S.E.2d at 811. Thus, we conclude the
Commission's findings of fact support its
conclusion that [the] plaintiff did not suffer
a compensable injury by accident.
Id. at 547, 586 S.E.2d at 547. In the present case, the Commission found that the “sudden
meeting and abrupt firing of plaintiff due to accusations of
stealing were unexpected and not reasonably designed by
plaintiff[.]” The Commission also found that “[s]ince plaintiff
did not steal the computers, he had no expectation of being accused
of stealing and was extremely surprised, upset and humiliated by
his firing.” Notwithstanding these findings, the Commission also
found that plaintiff had not shown that such “sudden” meetings and
“abrupt” firings were “unusual workplace occurrences” and thus
concluded that “the meeting with Ms. Hughes and [plaintiff's]
subsequent firing [did not] constitute[] a compensable injury by
accident.” Plaintiff contends the Commission's conclusion in this
regard is unsupported by its findings. We agree.
Unlike
Pitillo and
Knight, in this case the Commission made no
finding that the meeting with Hughes and the events following that
meeting were “routine” or “ordinary.” Indeed, the Commission
specifically found that the meeting was “sudden,” “unexpected,” and
that plaintiff did not initiate the meeting. Further, the
Commission found plaintiff's firing was “abrupt.” Although the
Commission did find that plaintiff had “not shown that [the sudden
meeting and abrupt firing] were unusual workplace occurrences,”
this single, conclusory finding is contradicted by the Commission's
multiple other findings regarding the unexpected nature of theevents leading to plaintiff's injury. The Commission's conclusion
that plaintiff failed to show he sustained an injury by accident is
therefore unsupported by its findings and must be reversed.
Defendants argue that plaintiff's firing was a “legitimate
personnel action” which did not interrupt the normal work routine
and thus could not give rise to any injury “by accident.”
Compare
James R. Martin, Comment,
A Proposal to Reform the North Carolina
Workers' Compensation Act to Address Mental-Mental Claims, 32 Wake
Forest L. Rev. 193, 207 (1997) (arguing that, “[i]f an employer
determines that an employee should be transferred, demoted, or
dismissed, and does so without violating federal statutes or public
policy, then that employer should not be liable for any mental
injury resulting from the personnel action. Otherwise, employers
would be limited in making their personnel decisions according to
which employees they feel are likely to suffer mental injury.
Further, insulating employers from liability for legitimate
personnel decisions would prevent fired employees from claiming a
mental injury due to the suddenness of termination, simply to gain
revenge on the employer”). However, the Commission made no
findings regarding whether the disciplinary action was a
“legitimate personnel action” or part of plaintiff's “normal work
routine.” This Court may not substitute its own findings for those
made by the Commission. We do not agree with defendants that a“legitimate personnel action” can
never involve the interruption of
the work routine. Whether or not a particular personnel action is
part of an
“established sequence of operations”
is a factual matter
which must be decided on a case-by-case basis.
See Gunter,
317
N.C. at 675, 346 S.E.2d at 398.
“The Workers' Compensation Act
should be liberally construed to effectuate its purpose to provide
compensation for injured employees and its benefits should not be
denied by a narrow, technical and strict construction”.
Id.
at
676-77, 346 S.E.2d at 399.
Because the Commission failed to make sufficient findings
regarding whether the personnel action leading to plaintiff's
injury was the “normal work routine” or part of an “established
sequence of operations,” we cannot determine whether plaintiff
sustained an injury by accident under the law. We therefore
reverse that portion of the opinion and award of the Commission
concluding that plaintiff failed to show he suffered an injury by
accident and remand this case to the Commission for additional
findings.
B. Occupational Disease
[2]
Plaintiff also argues the Commission erred in concluding
he failed to show he is suffering from an occupational disease.
We
reject plaintiff's argument on several grounds.
First, the
Commission specifically found that “plaintiff isnot claiming that he suffers from an occupational disease.”
Plaintiff does not take issue with this finding and is therefore
bound by it.
Second, plaintiff failed to show that his depression
was due to “causes and conditions which are characteristic of and
peculiar to a particular trade, occupation or employment.” N.C.
Gen. Stat. § 97-53(13) (2003) (defining occupational disease);
Woody v. Thomasville Upholstery, Inc., 355 N.C. 483, 562 S.E.2d 422
(2002);
Clark v. City of Asheville, 161 N.C. App. 717, 721, 589
S.E.2d 384, 387 (2003) (noting that, in order to qualify as an
occupational disease, “a plaintiff has to show that his
psychological condition, or the aggravation thereof, was (1) 'due
to causes and conditions which are characteristic of and peculiar
to a particular trade, occupation or employment' and that it is not
(2) an 'ordinary disease[] of life to which the general public is
equally exposed'”) (quoting N.C. Gen. Stat. § 97-53(13)).
Plaintiff presented no evidence, and the Commission made no
findings to support a conclusion, that plaintiff's depression was
due to causes and conditions characteristic of and peculiar to his
employment in the aircraft section of General Electric. We
overrule this assignment of error.
[3] Defendants cross-assign error to several of the
Commission's findings as being unsupported by the evidence. Specifically, defendants assign error to the Commission's findings
indicating that plaintiff was accused of theft and that he was
“fired.” They also argue that the Commission's finding as to the
action taken by defendant General Electric's peer review committee
was incomplete and misleading as it left the impression that
plaintiff was exonerated from wrongdoing. We review the record to
determine whether the findings about which defendants complain are
supported by any competent evidence. Pitillo, 151 N.C. App. at
644, 566 S.E.2d at 810.
Plaintiff testified that, on 28 October 1999, he was summoned
to a conference room where he met with Andrea Hughes, the human
resources manager, Todd Best, an ombudsman, and a security guard.
Hughes informed plaintiff of the missing computers. Plaintiff
“assured [Hughes] right then that [he] didn't have anything to do
with the laptop missing.” Hughes informed plaintiff that “none of
the stories matched up, and that she was going to have to take
drastic steps, and she was suspending [plaintiff] from work because
of the [theft] of the laptop computers.” Plaintiff told Hughes
that “what she was doing was wrong” and that “she was questioning
[his] integrity.” As the security guard escorted plaintiff from
the building, plaintiff felt “there were employees looking at me
like I was a convict.” When plaintiff returned to work, he “was
harassed by people.” As plaintiff explained: People would call back there in the area where
the phone was at and if I spoke in it, they
would say, “Thief.” Several times I've been
called at home, harassed on the telephone.
People pointing at me. People that had never
been back there in- in shipping- that I had
never seen- you could see them underneath the
tables pointing to me . . . .
Plaintiff became “very paranoid and very nervous and very
panicky.” He appealed his suspension to a peer review committee,
which issued plaintiff a written reminder regarding breaks away
from the work station. The peer review committee found no evidence
that plaintiff had stolen anything.
From the above-referenced testimony, we conclude there was
competent evidence to support the Commission's findings that
plaintiff was “accused of theft.” Although General Electric may
never have directly and explicitly informed plaintiff that it
believed he had stolen the missing property, such an accusation was
clearly implied in every way. Hughes informed plaintiff he was
being suspended “because of the theft of the laptop computers.”
Certainly, it is obvious from plaintiff's testimony that he
believed he was being accused of theft, and that other employees
believed the same. Persons harassed plaintiff at work and called
him “Thief.” The peer review committee specifically found there
was no evidence that plaintiff had stolen anything. The
Commission's findings that plaintiff was “accused of theft” aretherefore supported by the evidence.
Likewise, we find support in the evidence for the Commission's
finding that “Plaintiff received a letter from the peer review
committee reminding him of rules regarding breaks away from the
workstation. Defendant-employer did not find any evidence that
plaintiff had stolen anything.” Contrary to defendants' argument,
we do not agree that the finding was either incomplete or
misleading.
However, we agree with defendants that there is no evidence in
the record to support the Commission's numerous findings that
plaintiff was “fired” from his position at General Electric.
Rather, plaintiff testified he was placed on “crisis suspension.”
Although plaintiff testified he “didn't know what a crisis
suspension was[,]” plaintiff never testified that anyone from
General Electric informed him he was fired, or that he believed
himself to be terminated. As such, the Commission erred in finding
that plaintiff was “fired,” and these findings must be set aside.
Our action in doing so, however, does not afford defendants an
alternative basis for sustaining the Commission's opinion and
award, see N.C. R. App. P. 10(d) (2005)
, because whether plaintiff
was fired or disciplined in some other way, under the circumstances
in this case, is not determinative of the issue of whether he
suffered a injury by accident. As we have noted above, the issueto be determined is whether the actions taken by defendant General
Electric's employees with respect to plaintiff on 26 October 1999
were “unexpected, unusual, or untoward occurrences constituting an
interruption of the work routine and the introduction thereby of
unusual conditions likely to result in unexpected consequences.”
Knight, 160 N.C. App.
at 545, 586 S.E.2d at 546.
