Appeal by employer from opinion and award of the North
Carolina Industrial Commission entered 29 September 2005. Heard in
the Court of Appeals 19 October 2006.
Thomas and Farris, P.A., by Albert S. Thomas, Jr., and Rose
Rand Attorneys, P.A., by Paul N. Blake, III, for plaintiff-
Brooks, Stevens & Pope, P.A., by Kathlyn C. Hobbs and Matthew
P. Blake, for defendants-appellants.
MARTIN, Chief Judge.
The City of Rocky Mount (employer) and Compensation Claims
Solutions (administrator)(collectively defendants) appeal an
opinion and award by the North Carolina Industrial Commission
(Commission) awarding benefits to Sandra Kay Rose (plaintiff-
employee), a sworn officer of the City of Rocky Mount's police
The underlying events relating to this case took place on 10
November 2003. Evidence in the record tended to show that
plaintiff-employee had worked in her present position as a police
officer since June 1987, attaining the rank of corporal. At lunch
time, following the standard sign-out procedures, she went to run
some personal errands. She was not paid for her lunch break, and
she drove her personal vehicle. She was accompanied by another
officer. During plaintiff-employee's return trip to the police
station, her car was struck from the rear by a vehicle driven by
one Aaron Troy Sutton (Sutton), an intoxicated driver.
Plaintiff-employee emerged from her vehicle to evaluate the
damage. As she began to walk back toward Sutton's car, it became
evident to her that Sutton was planning to flee the scene.
Following her training, she tapped the hood of the car in order
to leave her fingerprints, threw up her hands and yelled for him to
stop, while simultaneously trying to get out of the way. Suttonstruck plaintiff-employee, who was flung across two lanes of
traffic. Sutton then ran across plaintiff-employee's legs a second
time while making his get-away. The first officer on the scene
noted that plaintiff-employee appeared almost lifeless.
An ambulance transported plaintiff-employee to Nash General
Hospital. She was treated for multiple bruises and abrasions.
However, she suffered no fractures. After her discharge, an
orthopedic specialist advised her to continue with the medication,
crutches and knee immobilizer she received during her
hospitalization. She was also restricted in her work functions.
Plaintiff-employee returned to work on 6 January 2004.
However, her work functions were circumscribed by the restrictions
indicated above, which barred her from heavy lifting, climbing, and
crawling. This limited her ability to perform crime scene
investigations, her primary responsibility. These limitations
caused some friction with her supervisor.
Plaintiff-employee was diagnosed with post traumatic stress,
myofacial dysfunctional pain syndrome, bilateral occipital
neuralgia, possible knee reflex sympathetic dystrophy, possible
cervical herniated disc, depression, short term memory loss, lack
of concentration, and adjustment disorder with mixed emotional
After her employer determined that her injuries were not
related to her job functions, plaintiff-employee filed a Form 33
Request for a Hearing on 16 February 2004. Defendants responded
with Form 33R on 5 March 2004. The deputy commissioner heard thecase on 18 August 2004 in Nashville. On 26 January 2005, she
entered an Opinion and Award, which inter alia, determined that
plaintiff-employee's injuries arose out of her employment, that she
had not reached maximum medical improvement, and directed that she
be given additional leave and benefits to recuperate. Defendants
appealed to the full Commission.
On 29 September 2005, the Commission entered an Opinion and
Award affirming the deputy commissioner's decision. This appeal
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). However, [t]he 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).
 Although defendants assigned error to findings of fact 18,
19, 20, 21, 23, and 24, defendants have failed to include in their
brief any argument or legal authority in support of its assignmentsof error regarding findings 21, 23 and 24. 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
, 357 N.C. 460, 585 S.E.2d 760
Defendants also challenge conclusions of law 2 and 3, that
the plaintiff-employee was at increased risk of assault as a police
officer and that her injuries arose out of her employment.
 Turning first to conclusion 3, defendants contend that the
Commission erred in determining that plaintiff-employee's injuries
arose out of and in the course of her employment. Our Supreme
Court has previously held that a determination that an injury arose
out of and in the course of employment is a mixed question of law
and fact, and where there is evidence to support the
Commissioner's findings in this regard, [the appellate court is]
bound by those findings. Barham v. Food World,
300 N.C. 329, 331,
266 S.E.2d 676, 678 (1980). This Court reviews the record to
determine if the findings of fact and conclusions of law are
supported by the record. Cauble v. Soft-Play, Inc.
, 124 N.C. App.
526, 528, 477 S.E.2d 678, 679 (1996), disc. review denied
, 345 N.C.
751, 485 S.E.2d 49 (1997).
The pivotal finding in this case was the Commission's
determination that it was plaintiff-employee's status as a police
officer that motivated Sutton's attack. This finding is critical
for two reasons. First, as a matter of law, a mere automobile
accident would represent a risk common to the traveling public andwas not due to a hazard peculiar to a police officer. It would
thus not be compensable as a work injury. See Roberts v.
Burlington Indus., Inc
., 321 N.C. 350, 358, 364 S.E.2d 417, 423
(1988) (holding that an injury is compensable only if the nature
of the employment was a contributing proximate cause of the injury,
and one to which the employee would not have been equally exposed
apart from the employment).
Secondly, the Industrial Commission found that plaintiff-
employee's injuries were sustained as the result of Sutton's
assault and not as the result of the automobile accident.
Significantly, the Commission stated in its findings of fact that
the hit-and-run assault was a natural result of a risk reasonably
associated with being a police officer and would not have occurred
had plaintiff-employee not been in uniform. A fellow officer who
was also involved in the accident, but not in the subsequent
assault, does not appear to have been seriously injured.
As noted above,
the Commission's findings of fact are
conclusive on appeal if supported by competent evidence even though
there is evidence to support a contrary finding. Murray v.
Associated Insurers, Inc.
, 341 N.C. 712, 714, 462 S.E.2d 490, 491
Our Supreme Court has held that a police officer retains
his official law enforcement officer status even while 'off duty'
unless it is clear from the nature of his activities that he is
on behalf of a private entity, or is engaged in some
frolic or private business of his own. State v. Gaines
, 332 N.C.
461, 472, 421 S.E.2d 569, 575 (1992). Gaines
permitted a potentialdeath penalty prosecution to proceed premised on the victim's
status as an off-duty police officer. Id
. Other jurisdictions
have followed the Gaines
reasoning. See, e.g., White v. Kentucky
178 S.W.3d 470, 481 (Ky. 2005) (shooting of uniformed sheriff at
fish fry constituted murder of police official engaged in his
duties) (citing Gaines
, 332 N.C. at 472, 421 S.E.2d at 574)
would dictate that a worker's compensation claim for a uniformed
police officer acting in accordance with her training presents at
least an equally strong case as a criminal prosecution potentially
entailing the death penalty.
Here, plaintiff-employee testified it was after she emerged
from the vehicle and was mid-center in front of the drunk driver's
car that the latter attempted to flee. Other witnesses at the
scene told the police that Sutton aimed his car at the police
officer and proceeded to drag her. Defendants alleged that there
is no evidence to support the Commission's determination that
plaintiff-employee was attacked because she was a police officer,
since Sutton, the only individual aware of his intentions at the
time of the assault, stated that he did not know that she was a
We find this suggestion disingenuous. At the time of his
statement, Sutton was faced with the prospect of being charged with
a myriad of serious criminal offenses. Conceding that he had
deliberately targeted a law enforcement officer would have
exacerbated his already precarious position. Indeed, Sutton denied
hitting plaintiff-employee's truck, denied ramming her, and deniedleaving the scene. Against this background, we cannot fault the
Commission for declining to take his statements at face value. We
note that Sutton did concede he was aware that his victim was
We have previously noted that mental state is seldom provable
by direct evidence. State v. Campbell
, 51 N.C. App. 418, 421, 276
S.E.2d 726, 729 (1981). Therefore, the willfulness of an
individual's conduct may be inferred from the circumstances
surrounding the events. See, e.g., State v. Agnew
, 294 N.C. 382,
393, 241 S.E.2d 684, 691 (1978).
Our Supreme Court has held that
Knowledge is a mental state that may be proved
by offering circumstantial evidence to prove a
contemporaneous state of mind. ... It may be
proved by the conduct and statements of the
defendant, by statements made to him by
others, by evidence of reputation which it may
be inferred had come to his attention, and by
other circumstantial evidence from which an
inference of knowledge might reasonably be
State v. Bogle
, 324 N.C. 190, 195, 376 S.E.2d 745, 748 (1989)
. Examining the circumstantial evidence around
the attack on plaintiff-employee, including her testimony and that
of other witnesses present at the scene, we hold there is
sufficient evidence to support the Commission's findings that the
assault was directed against the plaintiff-employee because of her
status as a police officer, and not because of the traffic
It is this distinction that renders the defendant's chief case
inapposite to the present one. Dodson v. Dubose Steel, Inc.
N.C. App. 1, 12, 582 S.E.2d 389, 395 (2003) (Steelman, J.,dissenting), rev'd per curiam
, 358 N.C. 129, 591 S.E.2d 548 (2004)
(for reasons stated in the dissent), concerned a driver killed in
a road rage altercation. The dissenting opinion adopted by the
Supreme Court specifically noted that all drivers were at equal
risk of confrontations arising from road rage, whether they were
driving for employment or personal reasons. Id.
at 15, 582 S.E.2d
at 398. The determinative and distinguishing fact was that the
decedent in Dodson
was not attacked because he was a truck driver.
By contrast, the Commission has specifically found that plaintiff-
employee in this case was targeted for assault because of her
status as a police officer.
We also note, in the alternative, that the Commission found as
a matter of fact that the plaintiff-employee was acting in her law
enforcement capacity in her response to Sutton. The Commission
alluded in particular to the undisputed fact that plaintiff-
employee followed police procedure and tapped the hood of the
assailant's car with her hands to provide prints for subsequent
investigation. Plaintiff-employee also testified that, in leaving
the prints, she was following her training and established police
In this context, defendants have challenged some particular
factual findings made by the Commission. For instance, the
Commission relied on the fact that plaintiff-employee was on call
during the incident as an underlying factor to support its
determination that her injuries arose out of and in the course of
her employment. Defendants challenge this finding, citing Childsv. Johnson
, 155 N.C. App. 381, 389, 573 S.E.2d 662, 667 (2002) for
the proposition that being on call is insufficient to draw a
government employee into the scope of employment while on a
personal errand. The comparison is misplaced.
In the first place, the Commission unequivocally rejected
plaintiff-employee's assertion that being on-call in and of itself
placed her on duty:
15. ... Plaintiff has argued that she was on-
call during her shift, that she had her radio
on and with her throughout the time she was
gone in case she was called into service ...
16. However, plaintiff was not at her
workstation and was not engaged in any policy
activity when her vehicle was rear-ended. ...
She was not paid for the lunch period, which
was not considered to be a break, a shorter
rest period taken on site; nor was she paid
mileage for use of her vehicle. Although she
had her police radio on while she was gone,
she had not been called into service during
her lunch period but spent the time running
dealt with the denial of governmental immunity to
a government official involved in an automobile accident whose job
required him to be on call twenty-four hours a day. Id.
not a Workers' Compensation Act case. In Childs
, we held that the
mere fact that the official was on-call while running personal
errands did not suffice to shield his conduct in a subsequent
automobile accident via the doctrine of sovereign immunity.
holding is tangential at best to the case at bar.
More importantly, the Commission did not rest its
determination that the attack occurred in the scope of employment
exclusively on the fact that plaintiff-employee was on call. Theevidence was cumulative, and the Commission noted inter alia
plaintiff-employee was still on her work shift, was in uniform, and
that the assault resulted from her identification as a police
officer. Indeed, in Gaines
our Supreme Court held that the
decedent, an off-duty but uniformed policeman on security duty
murdered by the defendant, had been engaged in the performance of
his official duties. Gaines
, 332 N.C. at 477, 421 S.E.2d at 577;
see State v. Lightner
, 108 N.C. App. 349, 351-52, 423 S.E.2d 827,
829 (1992) (upholding a conviction on a count of assault on a law
enforcement officer, where the defendant assaulted off-duty but
uniformed police officers at restaurant during the course of the
We stress that this Court does not function as an appellate
fact finder; it is the Commission that performs the ultimate
fact-finding function under our Worker's Compensation Act. Adams
v. AVX Corp.
, 349 N.C. 676, 680-81, 509 S.E.2d 411, 413 (1998). If
the Commission's findings are supported by competent evidence, they
are conclusive on appeal, Hedrick v. PPG Indus.
, 126 N.C. App. 354,
357, 484 S.E.2d 853, 856, disc. review denied
, 346 N.C. 546, 488
S.E.2d 801-02 (1997), and this Court may set aside a finding of
fact only if it lacks evidentiary support. Holley v. ACTS, Inc.
357 N.C. 228, 231, 581 S.E.2d 750, 752 (2003). In particular, this
Court may not weigh the evidence or evaluate the credibility of
witnesses, as the Commission is the sole judge of the credibility
of the witnesses and the weight to be given their testimony.
, 349 N.C.
at 680, 509 S.E.2d at 413. A finding of fact isconclusive on appeal if supported by competent evidence, even where
there is evidence to contradict the finding. Id.
at 681, 509
S.E.2d at 414.
We have noted several findings of fact above that are
undisputed and are cumulatively sufficient to support the
Commission's decision on alternative grounds. [S]o long as there
is some 'evidence of substance which directly or by reasonable
inference tends to support the findings, this Court is bound by
such evidence, even though there is evidence that would have
supported a finding to the contrary.' Shah v. Howard Johnson
N.C. App. 58, 61-62, 535 S.E.2d 577, 580 (2000) (quoting
Porterfield v. RPC Corp.
, 47 N.C. App. 140, 144, 266 S.E.2d 760,
762 (1980)), disc. review denied
, 353 N.C. 381, 547 S.E.2d 17
(2001). We may not substitute our own judgment for that of the
Commission, even though the evidence might rationally justify
reaching a different conclusion. Floyd v. N.C. Dep't of Commerce
99 N.C. App. 125, 129, 392 S.E.2d 660, 662 (1990) (citation
omitted), disc. review denied
, 327 N.C. 482, 397 S.E.2d 217, disc.
, 327 N.C. 633, 399 S.E.2d 120 (1990).
 Next, the defendants contend the full Commission erred in
failing to acknowledge or address all of the issues that were
before it, especially the issue of plaintiff-employee's authority
to engage in traffic stops. The Commission is not required to make
a specific finding as to each potential point presented by the
evidence. Guest v. Iron & Metal Co.
, 241 N.C. 448, 451, 85 S.E.2d
596, 599 (1955); Morgan v. Furniture Industries, Inc
., 2 N.C. App.126, 128, 162 S.E.2d 619, 620 (1968). The issue of authority is
not material in this case, and the failure to specifically address
it is not prejudicial error. Thomason v. Cab Co.
, 235 N.C. 602,
605, 70 S.E.2d 706, 708-09 (1952). We find this argument to be
 The defendant's last argument contends that the Commission
erred in its conclusion of law 2 in relying on
a treatise to
support its conclusion of law that police officials and others who
keep the peace are subject to a special risk of assault. See 1
Larson's Worker's Compensation Law
§ 8.01 (2000). We note in
passing that our Supreme Court has previously cited to non-binding
authorities to clarify issues. See, e.g., State v. Ali
, 329 N.C.
394, 403, 407 S.E.2d 183, 189 (1991).
Here, the defendants contend that the Commission has
erroneously relied on Larsen's treatise to effectively adopt the
positional risk rule, rather than the increased risk rule which
is the law of this state. See Ramsey v. Southern Indus.
, 178 N.C. App. 25, 36, 630 S.E.2d 681, 689
(2006) ([O]ur courts have applied an 'increased risk' analysis and
have rejected the 'positional risk' doctrine ....). We agree that
the increased risk test and not the positional risk rule is the
law of the State, but disagree with the defendant's contention that
the Commission erroneously applied the latter.
Under the increased risk doctrine the injury arises out of
the employment if the nature of the employment is a contributing
proximate cause of the injury, and one to which the employee wouldnot have been equally exposed apart from the employment. Roberts
321 N.C. at 358, 364 S.E.2d at 423. By contrast, the positional
risk rule holds that '[a]n injury arises out of the employment if
it would not have occurred but for
the fact that the conditions and
obligations of employment placed claimant in the position where he
was injured.' Id
. (quoting 1 A. Larson, The Law of Workmen's
Compensation § 6.50
(1984)). The Commission specifically found
that compensable injury was not the automobile accident - a risk
common to the traveling public - which would flow from the
positional risk argument. Instead, the Commission clearly stated
that Sutton's assault would not have occurred but for
that she [plaintiff-employee] was in uniform. (emphasis added).
This finding conforms to the contours of the increased risk
doctrine as demarcated in Roberts
Contrary to the defendants' assertions, the Commission and
this Court have been cognizant of the fact that police officers are
uniquely vulnerable to certain job related dangers. Injuries
stemming from those dangers qualify for Workers' Compensation. See
Pulley v. City of Durham
, 121 N.C. App. 688, 694, 468 S.E.2d 506,
510 (1996) (holding that clinical depression leading to temporary
total disability was a compensable work related injury for police
officer because of nature of work); Baker v. City of Sanford
N.C. App. 783, 788, 463 S.E.2d 559, 563 (1995) (holding that
depression is an occupational disease for law enforcement
officials); Harvey v. Raleigh Police Dep't
, 85 N.C. App. 541, 544,
355 S.E.2d 147, 150 (1987), disc. review denied,
320 N.C. 631, 360S.E.2d 86 (1987) (reversing the Commission's finding that job
related stress was not cause of officer's suicide and remanding for
reconsideration); Winfrey v. City of Durham Police Dep't
814869, 2001 NC Wrk. Comp. LEXIS 2589 (2001) (finding that
plaintiff's employment as a police officer for defendant was a
significant causal factor in plaintiff's development of major
depression and plaintiff's job with defendant placed him at an
increased risk for developing major depression).
 Finally, we address the plaintiff-employee's request that
under our discretion we award her the expenses incurred in
connection with litigating this appeal as permitted by statute.
N.C. Gen. Stat. § 97-88 (2003).
Plaintiff-employee was injured
on 10 November 2003.
Deputy Commissioner Morgan's order granted
her compensation for eight weeks of recuperative leave. Though the
underlying facts are not in dispute, this case has been litigated
at three levels over the same number of years. Under N.C.G.S. §
97-88, the Commission or a reviewing court may award costs,
including attorney's fees, to an injured employee 'if (1) the
insurer has appealed a decision to the full Commission or to any
court, and (2) on appeal, the Commission or court has ordered the
insurer to make, or continue making, payments of benefits to the
employee.' Brown v. Public Works Comm'n
, 122 N.C. App. 473, 477,
470 S.E.2d 352, 354 (1996) (quoting Estes v. N.C. State Univ.
N.C. App. 126, 128, 449 S.E.2d 762, 764 (1994)).
In the case at bar, the defendants have appealed the Deputy
Commissioner's decision that temporary total disabilitycompensation be paid to plaintiff-employee. On appeal, the
Commission unanimously affirmed the award of temporary total
disability compensation. The defendants have now appealed to this
Court, and we also affirm the original decision of the trial court.
The statutory requirements are therefore satisfied, and we grant
plaintiff-employee's request for expenses incurred in this appeal
in our discretion. See Brooks v. Capstar Corp.,
168 N.C. App. 23,
30-31, 606 S.E.2d 696, 701 (2005); Flores v. Stacy Penny Masonry
, 134 N.C. App. 452, 459, 518 S.E.2d 200, 205 (1999)
Commission must determine the portion of the attorney's fees
stemming from the appeal. Hodges v. Equity Grp.
, 164 N.C. App.
339, 347 596 S.E.2d 31, 37 (2004).
Accordingly, this matter is
remanded to the Commission with instruction that the Commission
determine the amount due plaintiff-employee for the costs incurred
as a result of the appeal to this Court, including reasonable
Affirmed in part, remanded in part.
Judges ELMORE and JACKSON concur.
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