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D'Aquisto v. Mission St. Joseph's Health System7/5/2005
Under the Workers' Compensation Act, an injury is only compensable if it is the result of an "accident arising out of and in the course of the employment[.]" N.C. Gen. Stat. ยง 97-2(6) (2004). In this case, the employer acknowledges that an assault upon Plaintiff-employee occurred "in the course of" her employment but argues that it did not "arise out of" her employment. For the reasons given in Wake County Hosp. Sys., Inc. v. Safety Nat'l Cas. Corp., 127 N.C. App. 33, 487 S.E.2d 789, disc. review denied, 347N.C. 410, 494 S.E.2d 600 (1997),we hold that the full Commission properly concluded that the assault "arose out of" Plaintiff's employment. We further uphold the full Commission's Opinion and Award on the remaining issues presented on appeal.
The record on appeal shows that on 30 April 2001, Plaintiff Caroline D'Aquisto, a cancer analyst at Defendant Mission St. Joseph's Health System ("Mission Health System"), arrived at her office at approximately 6:00 a.m. At approximately 7:15 a.m. Ms. D'Aquisto left her office on the first floor to go to the morgue on the second floor. She carried paperwork needed to confirm the causes of death of individuals who had died the previous week.
While Ms. D'Aquisto waited in front of the first floor main staff elevators, a man wearing green scrubs approached her. After exchanging a few words, the man walked up to her and said, "Selene . . . We're going to finish it." Ms. D'Aquisto testified that he grabbed her breasts and nipples, turned them, and brought her to her knees. Ms. D'Aquisto broke away and ran into the stairwell. But the man pursued her, grabbed her from behind, grabbed her hair and her groin area, and pulled her down the steps. Ultimately, Ms. D'Aquisto broke free, ran up the steps to the second floor, opened the door, and fell into the arms of a co-worker, A.J. Ward.
Mr. Ward, a twenty-one year employee at Mission Health System, corroborated Ms. D'Aquisto's testimony, stating that she came out of the stairwell with a man behind her " nd it seemed like he was over the top of her trying to - trying to grab her again[.]" Ms.D'Aquisto fell into his arms and said "A.J., I don't know the man." The man ran away.
After the incident, Ms. D'Aquisto returned to her office and provided an account of the assault to security personnel. Ms. D'Aquisto then filled out a security incident report. Later that morning, Ms. D'Aquisto reported the incident to the Asheville Police Department.
The next day, Ms. D'Aquisto met with Linda Anderson, director of post-op surgical services, and Jerri Mitchell, director of endoscopy. Ms. Anderson testified that Ms. D'Aquisto was very upset, had several torn fingernails, scrapes on her shins, and a "hand print" bruise on a breast. Ms. Mitchell testified that she observed "some bruises on her chest and on her breasts and they were pretty impressive."
After the incident, Mission Health System sent out an e-mail alerting employees that an employee had been "inappropriately touched." The employee newspaper later described it as a more violent attack.
On 21 May 2001, Mission Health System security notified Ms. D'Aquisto that the alleged attacker had been spotted on the hospital premises and she and Mr. Ward were asked to identify him. Mr. Ward positively identified the man, who was later determined tobe Charles Greene, a sitter for Diversified Personnel. Mr. Greene was later charged with assault and found not guilty.
On 25 May 2001, Karen Blicher, Director of Mental Health Education at Mountain Area Health Education Center specializing in women's psychological issues including sexual assault, evaluated Ms. D'Aquisto. Ms. Blicher testified
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