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Bason v. Kraft Food Service9/19/2000
(1981), disc. review denied, 304 N.C. 726, 288 S.E.2d 806 (1982).
"In order for a claimant to recover workers' compensation benefits for death, he must prove that death resulted from an injury (1) by accident; (2) arising out of his employment; and (3) in the course of the employment." Pickrell, 322 N.C. at 366, 368 S.E.2d at 584. Where the evidence shows an employee died within the course and scope of his employment and there is no evidence regarding whether the cause of death was an injury by accident arising out of employment, the claimant is entitled to a presumption that the death was a result of an injury by accident arising out of employment. Id. at 367-68, 368 S.E.2d at 584-85. Once this presumption is established, the defendant has the burden of producing credible evidence that the death was not accidental or did not arise out of employment. Id. at 371, 368 S.E.2d at 586; Melton v. City of Rocky Mount, 118 N.C. App. 249, 256, 454 S.E.2d 704, 709 (to rebut presumption the defendant must produce "sufficient, credible evidence that the death is non-compensable"), disc. review denied, 340 N.C. 568, 460 S.E.2d 319 (1995). If the defendant meets this burden of production, "the Industrial Commission should find the facts based on all the evidence adduced, taking into account its credibility, and drawing such reasonable inferences from the credible evidence as may be permissible, the burden of persuasion remaining with the claimant." Pickrell, 322 N.C. at 371, 368 S.E.2d at 586.
In this case, the Full Commission found Plaintiff was entitled to the presumption under Pickrell that Decedent's cause of death was an injury by accident arising out of employment. Defendant, however, presented evidence and the Full Commission found as fact that " here was nothing unusual about the route, the hours, or the amount or type of deliveries required of . . . ecedent" on the day of his death. Defendant also presented evidence and the Full Commission found as fact that " he cause of . . . ecedent's death was cardiac arrhythmia, which was a sudden, fatal irregular heart beat, precipitated by the severe ischemic heart disease," and " he autopsy revealed no evidence of trauma." Plaintiff does not argue these findings of fact are not supported by competent evidence, and we are therefore bound by these findings of fact. See N.C.R. App. P. 28(b)(5); Hemric, 54 N.C. App. at 316, 283 S.E.2d at 437-38. Further, these findings of fact support the Full Commission's conclusion of law that Defendant "successfully rebutted the presumption of compensability" under Pickrell. See Cody v. Snider Lumber Co., 328 N.C. 67, 71, 399 S.E.2d 104, 106 (1991) (heart attack is not an "accident" within the meaning of the workers' compensation statute when it occurs while the employee is "conducting his work in the usual way" and the heart attack is not caused by "unusual or extraordinary exertion or extreme conditions" (citation omitted)). Accordingly, Plaintiff had the burden of proving Decedent's death resulted from an accident.
Plaintiff also argues the evidence shows Decedent's death resulted from an accident because Decedent was not scheduled to work on the day of his death and Decedent started his route on that day at least three hours late, causing Decedent's work to be "unusually strenuous." We disagree.
In this case, the Full Commission made findings of fact that being called into work as a substitute driver "was a normal activity and something that . . . ecedent had done in a regular manner during his many years of service to . . . [Defendant]" and " here was nothing unusual about the route, the hours, or the amount or type of deliveries required of . . . ecedent" on the day of his death. Plaintiff do
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