Our review of the Commission's opinion and award is limited to
determining whether competent evidence of record supports the
findings of fact and whether the findings of fact, in turn, support
the conclusions of law.
Deese v. Champion Int'l Corp., 352 N.C.
109, 116, 530 S.E.2d 549, 553 (2000). If there is any competent
evidence supporting the Commission's findings of fact, those
findings will not be disturbed on appeal despite evidence to the
contrary.
Jones v. Desk Co., 264 N.C. 401, 402, 141 S.E.2d 632,
633 (1965). “The Commission's conclusions of law are reviewed
de
novo.”
Ward v. Long Beach Vol. Rescue Squad, 151 N.C. App. 717,
720, 568 S.E.2d 626, 628 (2002).
In their first appellate contention, defendants assert the
Commission erred in finding as fact and concluding as a matter of
law that decedent's injury arose out of and in the course of his
employment with employer. Although defendants assigned error to
findings 3, 4, 6, 9, 10, 11, and 13 by the Commission, defendants
failed to include any argument or legal authority in support of its
assignments of error regarding findings 3, 4, 6, or 9 in its brief.
Accordingly, these assignments of error are deemed abandoned,
N.C.R. App. P. 28(b)(6), and these findings of fact are
conclusively established on appeal.
Johnson v. Herbie's Place, 157
N.C. App. 168, 180, 579 S.E.2d 110, 118,
disc. review denied, 357N.C. 460, 585 S.E.2d 760 (2003). We further note that defendants
have failed to argue that decedent's death did not result from an
accident as that term is used in N.C. Gen. Stat. § 97-2(6) (2003).
Defendants' remaining assignments of error pertain to findings
of fact 10 (that the argument which resulted in decedent's death
was motivated in part by work-related issues and decedent's death
was causally related to his employment), 11 (that decedent
sustained an injury by accident arising out of and in the course of
his employment), and 13 (that during the time decedent and his
widow lived separately and apart he delivered his paycheck to her
for her support and that the couple had no plans to become legally
separated or to terminate their marriage at the time of decedent's
death).
We turn to defendants' challenge regarding finding of fact 10,
that decedent's death was motivated in part by work-related issues
and causally related to his employment. In cases involving
workplace assaults by one co-worker against another our Supreme
Court and this Court have held the resulting injuries arose from
the employment when the assault is “directly connected with” or
“rooted in” the employment.
Hegler v. Mills Co., 224 N.C. 669,
670-71, 31 S.E.2d 918, 919 (1944).
See also Pittman v. Twin City
Laundry, 61 N.C. App. 468, 300 S.E.2d 899 (1983). Conversely, an
employee's injuries do not arise from the employment and are not
compensable where the assault was not related to the plaintiff's
employment, regardless of whether the assault was committed by a
co-worker or a third party.
Gallimore v. Marilyn's Shoes, 292 N.C.399, 233 S.E.2d 529 (1977);
Ashley v. Chevrolet Co., 222 N.C. 25,
21 S.E.2d 834 (1942).
In the instant case, the Commission made an uncontested
finding of fact that “Forbes indicated that the argument on the
morning of 26 September 2000 was related to their work for
defendant-employer.” This finding is conclusively established on
appeal and constitutes at least some evidence that the altercation
was related to decedent's employment and, therefore, is
compensable. Defendants' challenge to finding of fact 10 is
overruled.
Defendants alternatively attack finding of fact 11 on the
grounds that decedent's death did not occur in the course of
employment because his activities were not undertaken for the
purpose of furthering employer's business at the time of his
injury. The requirement that an injury occur in the course of
employment refers to the time, place, and circumstances giving rise
to the injury.
Dodson v. Dubose Steel, Inc., 159 N.C. App. 1, 12,
582 S.E.2d 389, 396 (2003) (Steelman, J., dissenting),
rev'd per
curiam, 358 N.C. 129, 591 S.E.2d 548 (2004) (for reasons stated in
the dissent). Here, defendants stipulated before the Commission
that “while working at a logging si[te,]” Forbes and decedent
engaged in an argument that terminated when Forbes shot decedent.
Defendants' stipulation that Forbes and decedent were working at
the time of the fatal encounter obviates any claim that decedent's
injury did not arise in the course of his employment. By their second appellate contention, defendants argue N.C.
Gen. Stat. § 97-12(3) (2003), which precludes compensation when an
employee's injury or death is proximately caused by his “willful
intention to injure or kill himself or another[,]” bars the award
of benefits to plaintiff. However, nothing in the record indicates
defendants argued to the Commission that compensability was barred
on the grounds of N.C. Gen. Stat. § 97-12(3). Moreover,
defendants' assignments of error do not reference this section of
the statute either by number or substance, nor do they encompass
whether the legal effect of N.C. Gen. Stat. § 97-12(3) precludes
compensability in the instant case. Accordingly, this issue is not
properly presented to this Court, N.C.R. App. P. 10(b)(1), and this
contention is overruled.
In their final argument, defendants assert any benefits are
payable to decedent's next of kin, not his wife, “because the
couple was not living apart for justifiable cause.” As a result,
defendants argue, decedent's wife does not meet the definition of
a widow as provided by N.C. Gen. Stat. § 97-2(14) (2003) and is not
entitled to receive the award under this Court's holding in
Bass v.
Mooresville Mills, 11 N.C. App. 631, 182 S.E.2d 246 (1971). We
disagree.
In
Bass, this Court addressed the issue of whether “a husband
and wife [were] living separate and apart for justifiable cause,
within the meaning of G.S. 97-2(14), if they [we]re living separate
and apart as a result of a mutual agreement evidenced by a legally
executed separation agreement[.]”
Id. at 633, 182 S.E.2d at 248. In discussing “justifiable cause,” we stated “there is no reason
why a separated wife who has surrendered all right to look to the
husband for support while he is living, should upon his death,
receive benefits that are intended to replace in part the support
which the husband was providing, or should have been providing.”
Id. at 633-634, 182 S.E.2d at 248. However, we further noted that
“justifiable cause” could exist “where the separation is not
intended by the parties to be permanent, the temporary living apart
being merely for reasons of convenience.”
Id. at 635, 182 S.E.2d
at 249. Finally, we quoted with approval the following: “'If the
living apart of the husband and wife is merely for the mutual
convenience or the joint advantage of the parties and the
obligation of the husband to support her is recognized, the right
of the wife to compensation exists as though they were living
together.'”
Id. (quoting 99 C.J.S., Workmen's Compensation, § 140
(3), pp. 471, 472).
In the instant case, decedent and his wife lived separate and
apart pursuant to a legal agreement. However, decedent's wife
testified and the Commission accepted as credible that decedent
continued to “use his income to supplement [his wife's] salary in
providing for [her and her daughter.]” In addition, decedent and
his wife had “no plans to become legally separated or to terminate
their marriage at the time of his death,” “spent numerous weekends
together in the same residence,” and “had plans to resume residing
permanently at the same residence at the time of his death.” This
evidence supports the proposition that decedent and his wife wereliving apart for justifiable cause as permitted by N.C. Gen. Stat.
§ 97-2(14); therefore, decedent's wife is entitled to receive the
award by the Commission under N.C. Gen. Stat. § 97-39 (2003).
The opinion and award of the Commission is affirmed.
Affirmed.
Judges HUDSON and JACKSON concur.
Report per Rule 30(e).
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