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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 6 November 2007
ROBERT N. BAKER,
N.C. Industrial Commission
I.C. No. 405357
BUILDERS MUTUAL INSURANCE COMPANY,
Appeal by Plaintiff from opinion and award entered 28
September 2006 by the North Carolina Industrial Commission. Heard
in the Court of Appeals 22 August 2007.
Brumbaugh, Mu & King, P.A., by Leah L. King, for Plaintiff-
Lewis & Roberts, P.L.L.C., by John H. Ruocchio and Sarah C.
Blair, for Defendants-Appellees.
Under the North Carolina Workers' Compensation Act (Act),
[n]o compensation shall be payable if the injury or death to the
employee was proximately caused by . . . [the employee's]
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 (2005). Plaintiff Robert N. Baker
(Plaintiff) appeals from an opinion and award of the North
Carolina Industrial Commission (Commission) in which theCommission denied workers' compensation benefits for an injury
sustained 2 March 2004 in the course of Plaintiff's employment with
Defendant Graystone Construction (Graystone) upon the
Commission's conclusion that Plaintiff's injury is not compensable
[under the Act] because it was proximately caused by his
intoxication. We affirm.
Plaintiff began working for Graystone as a carpenter on or
about 13 February 2004
. Plaintiff was driven to and from work each
day by Mr. Maynard May (May), a co-worker.
(See footnote 1)
On 1 March 2004,
Plaintiff finished work around 4:30 p.m. That evening, after May
drove him home, Plaintiff estimated that he drank eight or ten
beers before going to sleep around 11:30 p.m. May drove Plaintiff
and other Graystone employees to work the next morning, picking up
Plaintiff around 7:00 a.m. May testified that Plaintiff smelled
[of] beer when he got into May's van, but that otherwise he
observed nothing unusual about Plaintiff
. May and another co-
worker testified that Plaintiff did not appear drunk at the job
Plaintiff testified that around 9:00 that morning, while
installing ceiling joists, he just lost [his] balance and fell
thirteen feet to the ground, landing on his buttocks
[Plaintiff] had a small smell of alcohol coming from him while he
was lying on the ground after the fall, according to a co-workerwho attended to Plaintiff
. Plaintiff was transported to Dosher
Memorial Hospital in Southport and from there to New Hanover
Regional Medical Center in Wilmington (New Hanover) where he was
diagnosed as having a burst fracture of one of his vertebrae. As
part of his treatment, a sample of Plaintiff's blood was drawn at
New Hanover at 5:58 p.m. and analyzed at 6:00 p.m. The test
results indicated that, at the time the blood was analyzed,
Plaintiff's blood alcohol content was 0.7 milligrams per deciliter
Defendant Builders Mutual Insurance Company (Builders
Mutual) provided workers' compensation benefits to Plaintiff after
the injury pursuant to an Industrial Commission Form 63. However,
on 3 June 2004, Builders Mutual notified Plaintiff that it was
terminating benefits because [Plaintiff] tested positive for an
illegal controlled substance which Builders Mutual believed to be
the proximate cause of the injury. Plaintiff filed a request for
a hearing with the Commission on 9 August 2004
. The claim was
heard before Deputy Commissioner Phillip A. Holmes on 17 February
. Following the hearing, Deputy Commissioner Holmes granted
the parties additional time to depose expert and medical witnesses.
Dr. Shayne C. Gad, an expert in the field of toxicology and
the only witness to offer an opinion about the meaning of the blood
test results, was deposed on 3 October 2005. Dr. Gad testified
that, based on the test results, Plaintiff's blood alcohol content
at the time of the fall was 0.25 grams per deciliter (g/dL). Dr.
Gad further testified that Plaintiff's blood alcohol content at thetime of the accident was high enough to impair his judgment and
motor performance and that the blood alcohol content would have
significantly contributed [to] and been causative of any accident.
The following statement appears on the blood test results upon
which Dr. Gad's testimony was based:
NOTE: THIS ALCOHOL [sic] IS PERFORMED WITHOUT
CHAIN OF CUSTODY AND IS INTENDED FOR MEDICAL
USE ONLY. THESE RESULTS SHOULD NOT BE USED
FOR LEGAL OR EMPLOYMENT PURPOSES.
The parties deposed two employees of New Hanover concerning
the blood tests. Dr. Kelly Klinker testified that she ordered the
tests drawn, that she did not know who actually drew Plaintiff's
blood, and that she was not familiar with the policy and procedure
of blood collection and delivery to the lab. Mr. Michael Dale
Register was identified by New Hanover as the lab technician who
performed Plaintiff's blood tests. Mr. Register described New
Hanover's standard chain of custody procedures and also testified
that there was no indication that Plaintiff's blood sample was
tampered with or that a different procedure other than the
hospital's standard procedure was followed in handling Plaintiff's
On 12 January 2006, Deputy Commissioner Holmes issued an
opinion and award in which he concluded that Plaintiff was not
intoxicated at the time of the fall and that, therefore, Plaintiff
sustained a compensable injury under the Act
. Defendants timely
appealed to the Full Commission and,
on 28 September 2006, the Full
Commission reversed the opinion and award of the Deputy
. The Full Commission concluded that Plaintiff'sinjury is not compensable because it was proximately caused by his
intoxication. Plaintiff appeals.
Plaintiff first argues that [t]here is no competent evidence
in the record to support [the Commission's] finding that
[Plaintiff] was intoxicated at the time of his accident. While
Plaintiff acknowledges that Dr. Gad's testimony constitutes
evidence of Plaintiff's intoxication at the time of the accident,
Plaintiff contends that Dr. Gad based his opinion on [the blood
test results] and that Defendants failed to show any chain of
custody for Plaintiff's blood sample. Plaintiff argues that Dr.
Gad's testimony is based upon incompetent evidence and therefore
his opinion should not be considered as competent evidence by this
Court . We disagree.
In considering an appeal from a decision of the Commission,
this Court 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). The Commission's findings of fact are conclusive on
appeal when supported by such competent evidence, 'even though
there [is] evidence that would support findings to the contrary.'
McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 700
(2004) (quoting Jones v. Myrtle Desk Co., 264 N.C. 401, 402, 141
S.E.2d 632, 633 (1965)). [F]indings of fact to which [an
appellant] has not assigned error and argued in his brief areconclusively established on appeal. Static Control Components,
Inc. v. Vogler, 152 N.C. App. 599, 603, 568 S.E.2d 305, 308 (2002).
The Commission's conclusions of law are reviewed de novo. McRae,
358 N.C. at 496, 597 S.E.2d at 701.
Of the Commission's twenty-four findings of fact, Plaintiff
assigned error only to [t]he last sentence of Finding of Fact No.
5[,] [t]he last sentence of Finding of Fact No. 8[,] and
Findings of Fact Nos. 23, 24 in their entirety[.] Plaintiff did
not assign error to finding of fact number twenty which states,
Defendants . . . proved the chain of custody [of Plaintiff's blood
sample]. Accordingly, this finding is 'presumed to be supported
by competent evidence and is binding on appeal.' Dreyer v. Smith,
163 N.C. App. 155, 157, 592 S.E.2d 594, 595 (2004) (quoting Koufman
v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991)). Because
Defendants proved the chain of custody of Plaintiff's blood sample,
Dr. Gad's testimony was based on competent evidence and his
testimony itself constitutes competent evidence of Plaintiff's
intoxication at the time of the accident. Thus, Plaintiff's
argument is without merit.
Plaintiff next argues that [t]here is no competent evidence
in the record to support a finding that [Plaintiff's] intoxication
was a proximate cause of his accident[.] Again, we disagree.
In his response to interrogatories and on both direct and
cross-examination before Deputy Commissioner Holmes, Plaintiff
stated that the only reason he fell thirteen feet was that he lost[his] balance. One of Plaintiff's co-workers testified that
Plaintiff had a smell of alcohol coming from him while Plaintiff
was lying on the ground after the fall. Dr. Gad testified that
Plaintiff's blood alcohol content at the time of the fall was
approximately 0.25 g/dL. Dr. Gad also testified that Plaintiff's
blood alcohol concentration at the time of the fall would have
impaired [Plaintiff] and would have significantly contributed [to]
and been causative of any accident.
It is well settled that the Commission is the sole judge of
the weight and credibility of evidence before it and that its
factual determinations may be overturned on appeal only if there is
a complete lack of competent evidence to support them. Young v.
Hickory Bus. Furn., 353 N.C. 227, 538 S.E.2d 912 (2000). Although
Plaintiff did not attribute his loss of balance to impairment or
intoxication, the Commission was free to reject that evidence and
to accept Dr. Gad's testimony to the contrary. We conclude that
the Commission's finding that Plaintiff's fall was proximately
caused by his impairment or intoxication was supported by competent
evidence. Plaintiff's argument is overruled.
Finally, Plaintiff argues that the Commission erred in (1)
finding Dr. Gad's testimony to be credible and (2) requiring
Plaintiff to present an expert opinion to contradict Dr. Gad's
testimony. As it is well settled that '[t]he Commission is the
sole judge of the credibility of the witnesses and the weight to be
given their testimony[,]' Adams v. AVX Corp.
, 349 N.C. 676, 680,509 S.E.2d 411, 413 (1998) (quoting Anderson v. Lincoln Constr.
, 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965)), reh'g
, 350 N.C. 108, 532 S.E.2d 522 (1999). Plaintiff's
credibility argument to this Court is misplaced. Additionally, we
disagree with Plaintiff's assertion that the Commission required
him to produce an expert witness to rebut Dr. Gad's testimony. The
Commission merely found that there is no expert medical testimony
to contradict [Dr. Gad's] opinions. The Commission based its
decision to give great weight to Dr. Gad as a witness on Dr.
Gad's expert testimony regarding Plaintiff's level of intoxication
at the time of his fall, not on Plaintiff's failure to offer
contrary expert evidence. Plaintiff's argument is without merit
and is overruled.
For the reasons stated, the opinion and award of the
Judges McGEE and SMITH concur.
Report per Rule 30(e).
Plaintiff's driver's license is permanently revoked for
multiple convictions of driving while impaired
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