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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.
ELEANOR WOOTEN, Widow of WALTER WOOTEN, Deceased, Employee,
Plaintiff, v. NEWCON TRANSPORTATION, INC., Employer, and
FIREMAN'S FUND INSURANCE CO./THE GOFF GROUP, Carrier, Defendants
Filed: 1 August 2006
1. Workers' Compensation_Pickrell presumption_truck driver dying of heart attack
The Industrial Commission did not err in a workers' compensation case by finding that
plaintiff was entitled to a presumption of compensability under Pickrell v. Motor Convoy, Inc.,
322 N.C. 363, (that death was work related when the causal connection between the work and the
death was unknown) where her truck-driver husband died of a heart attack either before or during
a traffic accident.
2. Workers' Compensation_truck driver dying of heart attack-Pickrell
The Industrial Commission correctly concluded that the Pickrell presumption of
compensability was not rebutted by defendants in a workers' compensation case where the
decedent, a truck driver, died of a heart attack either before or during a traffic accident.
3. Workers' Compensation_hearsay_911 report with unknown callers_present sense
The Industrial Commission did not err in a workers' compensation proceeding involving
a truck accident by admitting a 911 dispatch report that contained statements from unknown
callers. The Rules of Evidence do not strictly apply in workers' compensation cases. Even so,
these calls were admitted as present sense impressions; the callers may not have seen the
accident, but they saw the aftermath and reported this event or condition.
Appeal by defendants from opinion and award entered by the
North Carolina Industrial Commission on 28 April 2005. Heard in
the Court of Appeals 8 March 2006.
Cobourn & Saleeby, L.L.P., by Sean C. Cobourn, for
Rudisill, White & Kaplan, P.L.L.C., by Garth H. White and
Bradley H. Smith, for defendant-appellants.
In May 2002, plaintiff, the widow of deceased employee Walter
Wooten (the decedent), filed a claim with the North Carolina
Industrial Commission alleging that her husband died in a traffic
accident that occurred while he was working as a truck driver for
defendant-employer. On 27 April 2004, Deputy Commissioner Philip
A. Baddour, III, entered an opinion and award denying plaintiff's
claim on the ground that decedent's death was not an injury by
accident which arose out of his employment. On 28 April 2005, the
Full Commission reversed and awarded plaintiff workers'
compensation benefits. Defendants appeal. We affirm.
The facts as found by the Commission show that decedent Walter
Wooten was employed as a truck driver with defendant-employer. On
9 May 2002 at approximately 10:45 p.m.
, decedent was driving a
tractor-trailer on Interstate 81 in Augusta County, Virginia, at an
estimated speed of 65 m.p.h., when his truck ran off the left side
of the road, struck the guardrail, and came to rest in the median.
No other vehicles were involved in the accident. Two unknown
passersby called 911; one reported that it appeared that the truck
struck debris in the road and ran off the highway, and the other
reported that her husband checked the driver, who was unconscious,
but still breathing. Virginia State Police were dispatched and
emergency rescue workers pronounced decedent dead at the scene ofthe accident.
Following the accident, inspection of the left side of
decedent's vehicle revealed two missing tires, which most likely
came off as a result of damage to the tire rims when the vehicle
hit the guard rail. At the time of his death, decedent was 51
years old with a prior history of heart conditions, including one
prior heart attack. Dr. William Massello, an assistant medical
examiner, performed an autopsy on decedent which revealed
arteriosclerotic heart disease, or a hardening and narrowing of the
arteries. He found severe hardening of the arteries that supply
blood to the heart and testified that they were so narrow that
they were almost completely shut. In his first deposition, Dr.
Massello testified that decedent's heart disease triggered an
arrhythmia, causing decedent to experience a sudden heart attack,
and that he believed that the immediate cause of decedent's death
was arteriosclerotic heart disease. When asked whether the stress
and physical exertion caused by losing control of his truck could
have triggered decedent's arrhythmia, Dr. Massello stated: If a
person were physically or mentally stressed because of that and his
blood pressure went up and the adrenaline came out and . . .
physical exertion took place, those would be things that would
precipitate an arrhythmia in this man with this kind of heart
disease. However, Dr. Massello stated that he could not saywhether the arrhythmia occurred while decedent was driving or after
In Dr. Massello's first deposition, the deputy commissioner
had ruled that the 911 reports were inadmissible hearsay. However,
the Full Commission subsequently determined that the reports were
admissible and allowed a second deposition of Dr. Massello. In the
second deposition, Dr. Massello again stated that he believed that
decedent died as a result of an arrhythmia caused by
arteriosclerotic heart disease. Regarding the 911 reports, Dr.
Massello testified that he did not know whether defendant had the
accident because of a heart attack or whether he had a heart attack
because of the accident.
 Defendants first argue that the Commission erred in
finding that plaintiff is entitled to the presumption under
Pickrell v. Motor Convoy, Inc., 322 N.C. 363, 368 S.E.2d 582
(1988), that decedent died from a compensable cause. In order for
plaintiff to recover workers' compensation benefits for the death
of the decedent, she must prove that he died from an injury by
accident arising out of and in the course of his employment. N.C.
Gen. Stat. § 97-2(6) (2001). Where the circumstances concerning
the causal connection between decedent's work and his death are
unknown, there is a presumption that death was work-related, and
therefore compensable, whether the medical reason for death isknown or unknown, known as the Pickrell presumption. Pickrell,
322 N.C. at 370, 368 S.E.2d at 586. Here, the Commission made the
following relevant findings of fact:
4. . . . The 911 dispatch report indicates
that an unknown 911 caller reported that
decedent's tractor trailer appeared to have
struck tire debris in [the] road and ran off
[the] roadway. The record is unclear why
decedent's vehicle lost control.
* * *
6. On May 10, 2002, an autopsy was performed
by Dr. William Massello, the
Assistant Chief Medical Examiner for the
Virginia Office of the Chief Medical Examiner
in western Virginia. Dr. Massello found that
at the time of decedent's death, he was
suffering from arteriosclerotic heart disease,
or a hardening and narrowing of the arteries
that supply blood to the heart . . . . Dr.
Massello further testified that decedent's
heart disease triggered an arrhythmia, causing
decedent to experience a sudden heart attack.
Finally, Dr. Massello testified to a
reasonable degree of medical certainty that
the immediate cause of decedent's death was
arteriosclerotic heart disease.
7. In his first deposition Dr. Massello was
asked whether the stress and physical exertion
caused by the truck losing two tires, striking
the guardrail and going into the median could
have triggered decedent's arrhythmia. Dr.
Massello stated: If a person were physically
or mentally stressed because of that and his
blood pressure went up and the adrenaline came
out and . . . physical exertion took place,
those would be things that would precipitate
an arrhythmia in this man with this kind of
heart disease. . . . Upon further
questioning whether the arrhythmia took placewhile decedent was driving the truck or after
he stopped driving the truck, Dr. Massello
stated that there was no way that he could say
one way or the other.
8. During the second deposition, Dr. Massello
again stated to a reasonable degree of medical
certainty that decedent's death was a result
of an arrhythmia caused by arteriosclerotic
heart disease. Regarding the information
contained in the 911 reports, Dr. Massello
stated that he did not know whether decedent
allegedly struck debris because there was a
heart attack in progress or whether decedent
struck debris because he could not avoid it.
Dr. Massello further stated decedent could
have had the accident because of a heart
attack or he could have had the heart attack
because of the accident. Dr. Massello also
indicated that most people who have heart
attacks while driving manage to steer the
vehicle off the road, even if they lose
consciousness before the car stops.
The scope of this Court's review of an Industrial Commission
decision is limited to reviewing whether any competent evidence
supports the Commission's findings of fact and whether the findings
of fact support the Commission's conclusions of law. Deese v.
Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000)
(citing Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998)).
Here, although defendants assigned this error to several findings
of fact, they do not make this argument in their brief
. Thus, we
deem these assignments of error abandoned, N.C. R. App. P. 28(b)(6)
(2005), and treat the unchallenged findings of fact as conclusive
on appeal. First Union Nat'l Bank v. Bob Dunn Ford, Inc., 118 N.C.App. 444, 446, 455 S.E.2d 453, 454 (1995). Accordingly, the
question before us is whether the findings support the following
4. [T]he greater weight of the evidence
indicates that the circumstances regarding the
work-relatedness of decedent's death are
unknown and that the death occurred as a
result of an injury by accident sustained in
the course of decedent's employment. It is
uncontested that plaintiff was within the
course of his employment and was engaged in
his employer's business at the time of his
death. The fact that the immediate medical
cause of decedent's death is known does not
indicate that the Pickrell presumption does
not apply. Pickrell v. Motor Convoy, Inc.,
5. Decedent was involved in a motor vehicle
accident while in the course and scope of his
employment with defendant-employer. As a
result of the accident, decedent suffered a
cardiac arrhythmia and died. The only element
at issue is whether decedent's injury by
accident arose out of the employment. The
evidence fails to show whether decedent had a
heart attack that caused the motor vehicle
accident or whether the circumstances of the
accident caused decedent's heart arrhythmia.
Therefore, defendants have failed to meet
their burden of showing that plaintiff's
arrhythmia occurred prior to and caused
plaintiff's injury by accident. Defendants
have not successfully rebutted the presumption
by coming forward with sufficient, credible
evidence that death occurred as a result of a
non-compensable cause. Pickrell v. Motor
Convoy, Inc, supra; Melton v. City of Rocky
Mount, supra. Plaintiff is entitled to the
Pickrell presumption that decedent's cause of
death was an injury by accident arising out of
the employment. Id.
We conclude that the Commission's findings of fact support these
conclusions of law and that the Commission correctly applied the
Pickrell presumption here. Defendants contend that the Commission
erred because the presumption of compensability applies only where
there is no evidence that decedent died other than by a compensable
cause. Gilbert v. Entenmann's, Inc., 113 N.C. App. 619, 623, 440
S.E.2d 115, 118 (1994). However, in Gilbert, the Court concluded
that plaintiff was not entitled to the Pickrell presumption because
decedent died from a subarachnoid hemorrhage, which is not a
compensable cause. In contrast, an injury caused by a heart
attack may be compensable if the heart attack is due to an
accident, such as when the heart attack is due to unusual or
extraordinary exertion or extreme conditions. Cody v. Snider
Lumber Co., 328 N.C. 67, 71, 399 S.E.2d 104, 106 (1991) (italics in
original, internal citations and quotations omitted). Furthermore,
we note that there was no evidence here that decedent died by other
than a compensable cause - as the Commission concluded, [t]he
evidence fails to show whether decedent had a heart attack that
caused the motor vehicle accident or whether the circumstances of
the accident caused decedent's heart arrhythmia.
 Defendants also contend that if plaintiff is entitled to
the Pickrell presumption, then they successfully rebutted it. In
order to rebut the presumption, the defendant has the burden ofproducing credible evidence that the death was not accidental or
did not arise out of employment. Bason v. Kraft Food Service,
Inc., 140 N.C. App. 124, 128, 535 S.E.2d 606, 609 (2000). In
Bason, decedent was found dead in his delivery truck, which was
parked behind a building where he had been scheduled to make a
delivery and an autopsy revealed the cause of death to be a cardiac
arrhythmia caused by heart disease. Id. Defendant, however,
presented evidence and the Full Commission found as fact that
'there was nothing unusual about the route, the hours, or the
amount or type of deliveries required of . . . Decedent' on the day
of his death. Id. (ellipses in original). The Court held that
the Commission correctly concluded that defendant rebutted the
Pickrell presumption. Id. Here, it is undisputed that decedent
was involved in an accident, and we conclude that the Commission
correctly concluded that defendants did not rebut the presumption
of compensability. We overrule this assignment of error.
 Defendants also argue that the Commission erred in
admitting the 911 dispatch report into evidence because it is
inadmissible hearsay. The Commission admitted a 911 dispatch
report which contains statements of unknown callers. The rules of
evidence do not strictly apply in worker's compensation cases,
Haponski v. Constructor's Inc., 87 N.C. App. 95, 97, 360 S.E.2d
109, 110 (1987), but even if they did, the Commission did not errin exercising its discretion. Rule 805 provides that, [h]earsay
included within hearsay is not excluded under the hearsay rule if
each part of the combined statements conforms with an exception to
the hearsay rule provided in these rules. N.C. Gen. Stat. § 8C-1,
Rule 805 (2001). The Commission determined that the 911 calls
were admissible in their entirety pursuant to the hearsay
exceptions of Rule 803(1), (2), (6) and (8). N.C. Gen. Stat. §
8C-1 (2001). In their brief, defendants concede that the dispatch
reports were admissible under Rule 803(6), Records of Regularly
Conducted Activity, and Rule 803(8), Public Records and Reports.
But defendants contend that the statements of the unknown callers
were not properly admitted pursuant to Rule 803 (1) or (2). We
disagree. Rule 803(1), Present Sense Impression, allows for
admission of [a] statement describing or explaining an event or
condition made while the declarant was perceiving the event or
condition, or immediately thereafter. N.C. Gen. Stat. § 8C-1.
Defendants contend that there is no evidence that the statements
were made while the declarant was perceiving the event or
condition, or immediately thereafter. However, we conclude that
911 calls reporting that the [tractor trailer] appeared to have
struck tire debris in road and ran off roadway and that
[caller's] husband checked the driver and advised he was not
moving but he was breathing, qualify as present sense impressions. Even if the callers did not observe the accident happen, they
observed the aftermath and then reported this event or condition.
Because we conclude that the calls were admissible pursuant to Rule
803(1), we need not determine whether they qualify as excited
utterances under Rule 803(2). We overrule this assignment of
Judges HUNTER and BRYANT concur.
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