An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 7 March 2006
ERECT ALL, Employer, I.C. File No. 276576
TRAVELERS INSURANCE COMPANY,
Appeal by plaintiff from an opinion and award filed 21 March
2005 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 7 February 2006.
Oxner Thomas & Permar, PLLC, by Todd P. Oxner, for plaintiff
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Thomas M.
Morrow and Bettina Mumme, for defendant appellant.
Plaintiff appeals from an opinion and award of the North
Carolina Industrial Commission (the Commission) denying workers'
compensation benefits to plaintiff Ricky Cook (Mr. Cook) based on
the finding that plaintiff was intoxicated at the time of the
injury and that the injury was proximately caused by his
intoxication. We affirm.
On 27 June 2002, Mr. Cook was working as an ironworker for
Erect All in Johnston County, North Carolina. While working on the
construction of an elementary school, Mr. Cook fell from a steel
beam approximately 22 feet in the air before landing on the ground.
At the time of the fall, Mr. Cook was not connected to a safety
line. Immediately after the fall, Mr. Cook was taken to Johnston
County Memorial Hospital and was thereafter flown to Duke
University Medical Center for evaluation and treatment of his
injuries. The medical records from Johnston County Memorial
Hospital, stipulated to by counsel and introduced at trial without
objection, showed that while being treated, medical providers noted
an emission of a very strong smell of alcohol. A blood test, taken
approximately 30 minutes after the accident, revealed a blood
alcohol level (BAC) of .27 and the presence of cocaine.
Pursuant to the injuries sustained, a Form 33 request for
hearing was filed by Mr. Cook on the basis of Erect All's failure
to pay benefits. A Form 33R was filed by Erect All in response to
the claim denying compensability. At the hearing before the Full
Commission, Erect All asserted the affirmative defense of
intoxication as their grounds for denying compensation.
In an opinion and award filed 21 March 2005, the Commission
determined that Mr. Cook had sustained injury while working for
Erect All. The Commission further determined that at the time the
injuries were sustained, Mr. Cook was intoxicated and this
intoxication was the proximate cause of his injuries. Moreover, theCommission found that based on the greater weight of the evidence,
Mr. Cook was not provided alcohol by his employer and as such,
based on the provisions of N.C. Gen. Stat. § 97-12, he was not
entitled to compensation. From this opinion and award, Mr. Cook now
We first address Mr. Cook's argument that the Commission erred
in admitting medical records into evidence which he contends were
obtained without a valid authorization. This error was not
preserved for appeal and therefore is not considered by this Court.
The North Carolina Rules of Appellate Procedure state that,
[i]n order to preserve a question for appellate review, a party
must have presented to the trial court a timely request, objection,
or motion. N.C.R. App. 10(b)(1) (2006). A review of the transcript
reveals that at the beginning of the trial, counsel stipulated to
the authenticity of the medical records which Mr. Cook now contends
were admitted into evidence in error. Following counsels'
stipulations, the medical records were admitted into evidence and
no objections were made. It was not until much later during the
trial that an objection was brought as to the medical records.
Where the objection was not made at the time the records were
admitted into evidence, nor in the temporal proximity of their
admission, the objection was waived. Therefore, this assignment of
error is overruled.
We next address Mr. Cook's contention that the Commission
erred by concluding that he had the burden of proof in establishing
that Erect All, his employers, provided the intoxicating substance
to him. This contention lacks merit.
N.C. Gen. Stat. § 97-12 provides that an employee is not
entitled to compensation for injury or death proximately caused by
[h]is intoxication, provided the intoxicant was not supplied by
the employer or his agent in a supervisory capacity to the
employee[.] N.C. Gen. Stat. § 97-12(1) (2003), amended by 2005
N.C. Session Laws ch. 448, § 2. Further, under this statute, the
employer has the burden of proof on the affirmative defense of
intoxication. See Smith v. Central Transport, 51 N.C. App. 316, 276
S.E.2d 751 (1981). This Court must affirm the Commission's
determination if (1) its findings are supported by competent record
evidence, and (2) its conclusions are supported by findings of fact
and applicable law. See Creel v. Town of Dover, 126 N.C. App. 547,
552, 486 S.E.2d 478, 480 (1997) (noting this Court's standard of
The gravamen of Mr. Cook's argument is that he would have
preferred for the trial court to accept his testimony as true
rather than the testimony of V.R. Phipps. In the instant case,
there was evidence presented by V.R. Phipps that he did not
purchase any alcohol for Mr. Cook on the night in question and that
to his knowledge, no one affiliated with Erect All had supplied Mr.
Cook with an intoxicating substance. On the other hand, Mr. Cooktestified that either Onion (Herman Phipps) or V.R. Phipps had
purchased the alcohol for him and further denied that he, Mr. Cook,
had purchased any alcohol himself. He also testified that later in
the night, he gave someone his own money to purchase more alcohol.
After considering the evidence, the Commission determined that Mr.
Cook's testimony was conflicting, not credible, and therefore would
be afforded no weight. The Commission was not required to find as
credible any evidence that the employer or a supervisory agent of
the employer supplied Mr. Cook with alcohol. See Effingham v.
Kroger Co., 149 N.C. App. 105, 109-10, 561 S.E.2d 287, 291 (2002)
(The Commission is the sole judge of the credibility of the
witnesses and the weight accorded to their testimony.). Moreover,
Mr. Cook failed to assign any error to the Commission's Finding of
Fact No. 9 which stated, Based upon the greater weight of the
evidence, the Full Commission further finds that plaintiff was not
provided alcohol by his employer. See White v. Weyerhaeuser Co.,
167 N.C. App. 658, 660-61, 606 S.E.2d 389, 392 (2005) ('[F]indings
of fact to which [an appellant] has not assigned error . . . are
conclusively established on appeal.') (citation omitted).
Therefore, this assignment of error is overruled.
Finally we address the argument that the Commission erred by
finding and concluding that Mr. Cook's injury was proximately
caused by his intoxication. We disagree.
When an employer asserts intoxication as a defense to a
workers' compensation claim under N.C. Gen. Stat. § 97-12, hecarries the burden of proving that the intoxication was the
proximate cause of the injury. Anderson v. Century Data Systems
N.C. App. 540, 545, 322 S.E.2d 638, 641 (1984), disc. review
313 N.C. 327, 327 S.E.2d 887 (1985). In shouldering this
burden, the employer is not required to disprove all other possible
causes of injury other than intoxication, nor that intoxication was
the sole proximate cause of the employee's injuries. Id.
required is evidence that the employee's intoxication was more
probably than not a cause in fact of the accident resulting in
injury to the employee. Id.
As stated, infra
, this Court is bound
by the Commission's determination where the findings of fact are
supported by any competent evidence and the conclusions of law are
supported by the findings of fact and the law. See Creel
, 126 N.C.
App. at 552, 486 S.E.2d at 480 (noting this Court's standard of
review). Further, the Commission is the exclusive judge of
credibility and the weight to be given to the testimony. Effingham,
149 N.C. App. at 109-10, 561 S.E.2d at 291.
In the instant case, an expert in toxicology, Dr. Glenn Simon
(Dr. Simon), testified by way of deposition giving his opinion on
whether or not intoxication was a proximate cause of Mr. Cook's
injury. Dr. Simon testified that 30 minutes after Mr. Cook's fall,
his BAC was .27 percent. Dr. Simon further testified that this BAC
would have kept Mr. Cook from functioning both physically and
mentally in a way that he would have functioned on a normal day.
Moreover, Dr. Simon stated that it was his opinion to a reasonable
degree of toxicological certainty that intoxication was theproximate cause of Mr. Cook's fall on 27 June 2002. Mr. Cook
contended that the cause of the fall was the failure of Erect All
to require each employee to wear a safety line. Where it is evident
that there was competent evidence presented at the hearing for the
Commission to conclude that intoxication was a cause in fact of the
accident, this assignment of error is overruled.
Accordingly, this Court finds that there is no merit to the
contentions of Mr. Cook on appeal, and for the foregoing reasons,
the Commission's opinion and award is
Judges ELMORE and LEVINSON concur.
Report per Rule 30(e).
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