{ "id": 11917475, "name": "TONI LAGRANGE MELTON, WIDOW; TONI LAGRANGE MELTON, GUARDIAN AD LITEM FOR RYAN D. MELTON, MINOR SON OF ROBERT D. MELTON (DECEASED), EMPLOYEE-PLAINTIFFS-APPELLEES v. CITY OF ROCKY MOUNT, EMPLOYER, SELF-INSURED, DEFENDANT-APPELLANT", "name_abbreviation": "Melton v. City of Rocky Mount", "decision_date": "1995-03-21", "docket_number": "No. 9410IC473", "first_page": "249", "last_page": "257", "citations": [ { "type": "official", "cite": "118 N.C. App. 249" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "290 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "683-684" } ], "opinion_index": 0 }, { "cite": "305 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572767 ], "year": 1982, "pin_cites": [ { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0593-01" ] }, { "cite": "334 S.E.2d 392", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "394", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 117", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520740 ], "year": 1985, "pin_cites": [ { "page": "121", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0117-01" ] }, { "cite": "144 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "274" } ], "opinion_index": 0 }, { "cite": "265 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575582 ], "year": 1965, "pin_cites": [ { "page": "433" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0431-01" ] }, { "cite": "368 S.E.2d 586", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "368 S.E.2d 582", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "584", "parenthetical": "quoting 1 Larson, The Law of Workmen's Compensation \u00a7 10.32 (1985)" }, { "page": "585" } ], "opinion_index": 0 }, { "cite": "322 N.C. 363", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514047 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "367", "parenthetical": "quoting 1 Larson, The Law of Workmen's Compensation \u00a7 10.32 (1985)" }, { "page": "370" }, { "page": "371" }, { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0363-01" ] }, { "cite": "294 S.E.2d 208", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "306 N.C. 384", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569513, 8569549, 8569485, 8569582, 8569615 ], "year": 1982, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0384-02", "/nc/306/0384-03", "/nc/306/0384-01", "/nc/306/0384-04", "/nc/306/0384-05" ] }, { "cite": "290 S.E.2d 716", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 90", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522157 ], "year": 1982, "pin_cites": [ { "page": "91", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0090-01" ] } ], "analysis": { "cardinality": 816, "char_count": 18410, "ocr_confidence": 0.753, "pagerank": { "raw": 3.494427847957467e-07, "percentile": 0.8824417948691217 }, "sha256": "224b6c9eaf9a9b6f479e74d84b0e046feede6d8a2c707d8ef741f1555a015b1f", "simhash": "1:c7b7dd4d96357d9e", "word_count": 2892 }, "last_updated": "2023-07-14T20:04:31.897721+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge ARNOLD and Judge JOHNSON concur." ], "parties": [ "TONI LAGRANGE MELTON, WIDOW; TONI LAGRANGE MELTON, GUARDIAN AD LITEM FOR RYAN D. MELTON, MINOR SON OF ROBERT D. MELTON (DECEASED), EMPLOYEE-PLAINTIFFS-APPELLEES v. CITY OF ROCKY MOUNT, EMPLOYER, SELF-INSURED, DEFENDANT-APPELLANT" ], "opinions": [ { "text": "MARTIN, MARK D., Judge.\nThe issue presented is whether the Industrial Commission erred in applying the Pickrell \u201cpresumption of compensability\u201d and awarding compensation to plaintiffs. We affirm.\nRobert D. Melton, decedent, was employed by defendant, City of Rocky Mount, as a traffic signal technician. His job duties included repair and maintenance of traffic lights operated within the city limits. On 7 May 1990 Melton and co-worker Ronald Lewis were sent to an intersection where a traffic light was in need of repair. Melton was transported to the height of the traffic light by use of a \u201cbucket,\u201d which is a mechanical device used for lifting workers to moderate heights. Prior to Melton entering the bucket, Mr. Lewis testified he checked the electrical current to ensure it was turned off. While Melton was elevated in the bucket, Mr. Lewis heard a noise of \u201cbeating and banging\u201d and, when he looked up, observed Melton \u201cwaving his hands and flopping\u201d around. Melton was lowered to the ground and paramedics were immediately summoned to the scene. He was rushed to the hospital, where all efforts to revive him failed and he was pronounced dead.\nOn 8 May 1990, Dr. Louis Levy, local medical examiner, performed an autopsy and issued his autopsy report. Dr. Levy indicated the probable cause of death was anoxic encephalopathy (lack of oxygen to the brain) due to the aspiration of gastric contents. On 9 May 1990 Dr. Levy issued the medical examiner\u2019s certificate of death listing the immediate cause of death as \u201cpending.\u201d On 7 June 1990 Dr. Levy issued a supplemental report listing, \u201canoxic encephalopathy due to aspiration of gastric contents\u201d as the immediate cause of death and also listing the manner of death as \u201caccident.\u201d\nThe Rocky Mount Police Department conducted an investigation but could not determine the cause of death. However, they did conclude decedent did not sustain any type of electrical shock.\nAt the widow\u2019s request, on 7 September 1990 decedent\u2019s body was exhumed and a second autopsy was performed by Dr. Lawrence S. Harris, a forensic pathologist at ECU School of Medicine in Greenville, North Carolina. Dr. Harris filed an autopsy report indicating no new pathologic diagnoses and no evidence of electrical injury. On 12 December 1990 Dr. Harris issued an opinion letter indicating an aerosol spray lubricant decedent was using immediately prior to his death could potentially be a causal factor in the death. By letter dated 1 April 1991, Dr. Harris indicated he could not tie the aerosol to decedent\u2019s death.\nThe Chief Medical Examiner\u2019s office reviewed the matter and ordered its own testing to determine the cause and manner of death. On 12 September 1990. Dr. Thomas Clark, Associate Chief Medical Examiner for the State of North Carolina, issued a supplemental report of cause of death changing the cause of death to \u201caspiration of gastric contents due to undetermined\u201d causes. The manner of death was listed as \u201cnot determined.\u201d\nIn response to correspondence from Dr. Levy, on 27 December 1990, Dr. John Butts, Chief Medical Examiner for the State of North Carolina, issued a supplemental report of cause of death to Dr. Levy again stating the immediate cause of death was \u201caspiration of gastric contents due to undetermined causes.\u201d However, the manner of death was changed from \u201cnot determined\u201d to \u201caccident.\u201d Both Drs. Clark and Butts acted pursuant to Section 130A-385(c) of the General Statutes of North Carolina, which states: \u201c[t]he Chief Medical Examiner shall have the authority to amend a medical examiner death certificate.\u201d\nDr. Levy never signed the supplemental report of cause of death containing the amendments issued by the Office of the Chief Medical Examiner, and did not notify the Chief Medical Examiner\u2019s Office of his failure to do so.\nOn 3 October 1991, Associate Chief Medical Examiner Clark filed the supplemental report of cause of death listing the immediate cause of death as \u201caspiration of gastric contents due to undetermined\u201d causes, and listing the manner of death as \u201caccident.\u201d\nDr. Arthur E. Davis, Jr., defendant\u2019s expert witness, testified decedent died from aspiration of gastric contents caused by \u201cgastroe-sophageal reflux syndrome,\u201d a noncompensable idiopathic condition. As support for his conclusion, Dr. Davis cited decedent\u2019s asthma as a child and his alleged chronic bronchitis at the time of the accident. Dr. Davis also commented on the supplemental report of cause of death certificate prepared by Dr. Clark. Dr. Davis testified Dr. Clark\u2019s supplemental report of cause of death filed 6 September 1990 had been \u201creversed\u201d by Dr. Levy:\nWalker (attorney for plaintiff): And you didn\u2019t talk with the pathologist in completing this document?\nDavis: No, this has been reversed.\nWalker: It\u2019s been reversed?\nDavis: Yes, it has.\nWalker: How so?\nDavis: Dr. Levy was outraged at his report being changed.\nWalker: Do you have a document or material \u2014\nDavis: I asked Dr. Levy for that document, but they could not find it.\nDr. Davis further testified:\nDavis: This was Dr. Clark\u2019s opinion without the courtesy of consulting with Dr. Levy. And that\u2019s why Dr. Levy, through many negotiations, had it reversed so that it corresponded] to the death certificate.\nWalker: Where is the reversal, Sir?\nDavis: I do not know. I asked them for that.\nDr. Davis did not produce a written report.\nSubsequent to the hearing, Dr. Davis generated an undated opinion letter. Dr. Davis wrote, \u201c[a]s I further testified at the hearing, it is my opinion that the gastroesophogeal [sic] reflux and/or the aspiration of gastric contents did not result from an injury by accident sustained by Mr. Melton during the course and scope of his employment with the City of Rocky Mount.\u201d\nAlthough the evidence indicated decedent suffered a single asthma attack as a small child, it does not appear he presented any further asthma symptoms again. Decedent\u2019s widow never observed him have an asthma attack. Decedent\u2019s pediatrician stated he had never treated decedent for any serious condition and that he had enjoyed excellent health other than ordinary childhood illnesses.\nDecedent\u2019s widow testified she had seen her husband immediately prior to the accident. She testified that decedent ate a normal meal at lunch and she did not notice anything unusual about him.\nWhen decedent returned to work after lunch, co-worker Ronald Lewis testified he looked \u201cfine\u201d and did not appear to be sick when they went to repair the traffic light. Mr. Lewis also testified decedent\u2019s appearance was the same after lunch as it was before lunch, and he did not appear to be sick at either time. Mr. Lewis had worked with decedent on several occasions and had never seen him have a seizure or convulsion.\nOn 8 October 1991 Dr. Clark issued an opinion letter addressing the likelihood of gastroesophageal reflux syndrome causing decedent\u2019s death. In this letter Dr. Clark explained the procedural process for amending the death certificate and indicated the 1990 amendment had never been filed due to a clerical oversight. Dr. Clark also stated that Dr. Levy did not have the authority to reverse the determination of the Chief Medical Examiner\u2019s Office. According to Dr. Clark, \u201cNow that Ihave personally signed the supplemental death certificate it can no longer be modified by anyone outside of the chief medical examiner\u2019s office.\u201d Dr. Clark also stated, \u201c[i]t is my opinion that [decedent\u2019s] aspiration probably occurred as a result of death, or may have been the mechanism of death but not the proximate cause of it.\u201d (emphasis in original). Dr. Clark further stated:\n[T]he only significant finding of this case is aspiration. I consider it most likely that this aspiration is a result of stresses surrounding death, and not the proximate cause of death. The proximate \u2022cause of death remains undetermined.... I consider it more likely than not that something in his environment caused his death. The manner of death, therefore, is considered to be accidental.\nLastly, Dr. Clark stated, \u201c[i]t is difficult for me to follow the logic of Dr. Davis\u2019 testimony in which an attempt is made to link chronic bronchitis to esophageal reflux in this death. Based on my knowledge of this case I can see no reason that either would be related to his death.\u201d\nClassifying Dr. Davis\u2019 gastroesophageal reflux theory as \u201cspeculation,\u201d Dr. Harris stated: \u201cIt is a tribute to Dr. Davis\u2019 chutzpa that he was able, apparently successfully, to throw this obfuscatory handful of sand into the machinery of legal proceedings.\u201d Dr. Harris further stated: \u201cI am equally certain that I do not understand why that vomiting and aspiration took place. I would concur with Dr. Clark of Chapel Hill who reached a similar conclusion that the \u2018bottom line\u2019 cause of death remains \u2018[undetermined.\u2019 \u201d\nThe decedent\u2019s surviving next of kin properly and timely filed a workers\u2019 compensation claim for death benefits with the North Carolina Industrial Commission. The City of Rocky Mount denied the claim on 24 July 1990.\nOn 9 September 1991 the matter came on for hearing before Deputy Commissioner Roger L. Dillard. On 18 June 1992 Deputy Commissioner Dillard applied the Pickrell presumption of compens-ability and awarded compensation to plaintiffs. On 14 March 1994 the Full Commission affirmed the award of the Deputy Commissioner in a two-to-one decision, Deputy Commissioner Haigh dissenting.\nOn appeal defendant contends the Industrial Commission improperly applied the Pickrell presumption of compensability in awarding compensation to plaintiffs. We disagree.\nTo recover workers\u2019 compensation benefits for death, a claimant must prove that death resulted from an injury \u201c(1) by accident; (2) arising out of his employment; and (3) in the course of the employment.\u201d Harris v. Henry\u2019s Auto Parts, Inc., 57 N.C. App. 90, 91, 290 S.E.2d 716, 717 disc. rev. denied, 306 N.C. 384, 294 S.E.2d 208 (1982) (citation omitted).\nIn the present case decedent was a traffic light technician. Decedent was repairing a traffic light when the accident occurred, and therefore there is no dispute he was acting within the course of his employment. However, two elements remain, (1) whether the cause of death was \u201caccidental\u201d; and (2) whether the accident arose out of decedent\u2019s employment.\nThe Supreme Court has stated as a general rule: \u201c \u2018When an employee is found dead under circumstances indicating that death took place within the time and space limits of the employment, in the absence of any evidence of what caused the death, most courts will indulge a presumption or inference that the death arose out of employment.\u2019 \u201d Pickrell v. Motor Convoy, Inc., 322 N.C. 363, 367, 368 S.E.2d 582, 584 (1988) (quoting 1 Larson, The Law of Workmen\u2019s Compensation \u00a7 10.32 (1985)).\nExplaining the nature of this presumption, the Pickrell Court indicated: \u201c[T]he presumption is really one of compensability. It may be used to help a claimant carry his burden of proving that death was caused by accident, or that it arose out of the decedent\u2019s employment, or both.\u201d Pickrell at 368, 368 S.E.2d at 585.\nAt the outset we must determine whether the Industrial Commission correctly invoked the Pickrell presumption of compensability.\nDefendant contends the introduction of any evidence regarding the two remaining elements, whether the cause of death was accidental, and whether the accident arose out of employment, prevents application of the Pickrell presumption of compensability.\nAccording to the Pickrell Court, \u201c[W]here the circumstances bearing on work-relatedness are unknown and the death occurs within the course of employment, [plaintiffs] should be able to rely on a presumption that death was work-related, and therefore compen-sable, whether the medical reason for death is known or unknown.\u201d 322 N.C. at 370, 368 S.E.2d 586.\nThe present case clearly falls within the category of death benefit cases contemplated by the Supreme Court when it articulated the Pickrell presumption of compensability. Decedent was repairing a traffic light when the accident occurred. As indicated in the death certificate, the medical reason for death is known, lack of oxygen to the brain. The aspiration of vomit was most probably the result of the stresses surrounding the death but not the proximate cause of death. The Chief Medical Examiner\u2019s office has ruled the manner of death an \u201caccident.\u201d Like Pickrell, the death occurred within the decedent\u2019s course of employment and circumstances bearing on the work-relatedness of his death are unknown. We hold the Industrial Commission correctly invoked the Pickrell presumption of compensability. \u2018\nHaving determined the Industrial Commission correctly invoked the Pickrell presumption of compensability, the only remaining-inquiry is whether defendant proffered sufficient evidence to rebut the presumption.\nConsistent with its initial argument, defendant contends the existence of anv evidence regarding the two remaining elements, whether the cause of death was accidental, and whether the accident arose out of the decedent\u2019s employment, wholly rebuts the Pickrell presumption of compensability. We disagree.\nApplication of the Pickrell presumption cannot be properly understood without reference to well settled principles of law concerning the duty and role of the Industrial Commission in workers compensation cases. According to the Supreme Court, \u201c[t]he Workmen\u2019s Compensation Act, G.S. \u00a7 97-86, vests the Industrial Commission with full authority to find essential facts.\u201d Anderson v. Construction Co., 265 N.C. 431, 433, 144 S.E.2d 272, 274 (1965). \u201cThe Commission\u2019s findings of fact are conclusive on appeal, . . . even if there is evidence which would support a finding to the contrary.\u201d Sanderson v. Northeast Construction Co., 77 N.C. App. 117, 121, 334 S.E.2d 392, 394 (1985) (citations omitted). Finally, \u201cthe Industrial Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.\u201d Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683-684 (1982).\nThe Supreme Court has concluded that the Pickrell presumption of compensability is a true presumption. Pickrell, 322 N.C. at 371, 368 S.E.2d at 586. As such, \u201cwhere the claimant is entitled to rely on the presumption, the defendant must come forward with some evidence that death occurred as a result of a non-compensable cause .... In the presence of evidence that death was not compensable, the presumption disappears.\u201d Id. (emphasis added). \u201cIf no such evidence is produced, or if the evidence proffered is insufficient for that purpose. the party against whom the presumption operates will be subject to an adverse ruling ... if the basic fact is found to have been established.\u201d Id. (emphasis added) (citations omitted); see 1 Kenneth S. Broun, Brandis and Broun on North Carolina Evidence, \u00a7 44 (4th ed. 1993) (with true presumptions, \u201c[w]hen the basic fact has been established, the presumed or elemental fact must be found unless sufficient evidence of its nonexistence is forthcoming\u201d (footnotes omitted)).\nTo rebut the Pickrell presumption, therefore, the party against whom the presumption operates must produce sufficient, credible evidence that the death is non-compensable.\nThe Industrial Commission heard testimony presented by defendant\u2019s expert that decedent died from the aspiration of gastric contents caused by \u201cgastroesophageal reflux syndrome,\u201d a noncompensable idiopathic condition. It also heard testimony presented by plaintiffs\u2019 expert witnesses that the cause of death was undetermined. Significantly, the defendant\u2019s theory of cause of death was classified as,\u201cspeculative\u201d by plaintiffs\u2019 expert witness, Dr. Harris, and as \u201cdifficult ... to follow\u201d by Associate Chief Medical Examiner Clark. Finally, the conclusion of plaintiffs\u2019 expert witnesses was adopted in the final certificate of death issued by the Office of the Chief Medical Examiner for the State of North Carolina. In Pickrell the Supreme Court afforded great weight to the conclusions contained in the final certificate of death. Pickrell, 322 N.C. at 370, 368 S.E.2d at 586.\nAs the sole judge of the credibility of the witnesses and the weight to be given their testimony, Hilliard v. Apex Cabinet Co., supra, the Industrial Commission found that \u201cthe greater weight of the evidence indicates that the decedent died accidentally due to undetermined causes.\u201d We conclude the evidence supports the findings of fact of the Industrial Commission and the findings of fact support the conclusions of law based thereon.\nTo hold, as suggested by defendant, that the introduction of any evidence, no matter how speculative or unpersuasive, wholly deflates the Pickrell presumption of compensability is tantamount to repealing the presumption altogether. We therefore conclude the Industrial Commission did not err in determining the evidence proffered by the defendant was insufficient to rebut the Pickrell presumption of compensability.\nAffirmed.\nChief Judge ARNOLD and Judge JOHNSON concur.", "type": "majority", "author": "MARTIN, MARK D., Judge." } ], "attorneys": [ "Taft, Taft & Haigler, P.A., by Thomas F. Taft and James S. Walker, for plaintiff-appellee.", "Poyner & Spruill, L.L.P., by Ernie K. Murray, for defendant-appellant." ], "corrections": "", "head_matter": "TONI LAGRANGE MELTON, WIDOW; TONI LAGRANGE MELTON, GUARDIAN AD LITEM FOR RYAN D. MELTON, MINOR SON OF ROBERT D. MELTON (DECEASED), EMPLOYEE-PLAINTIFFS-APPELLEES v. CITY OF ROCKY MOUNT, EMPLOYER, SELF-INSURED, DEFENDANT-APPELLANT\nNo. 9410IC473\n(Filed 21 March 1995)\nWorkers\u2019 Compensation \u00a7 115 (NCI4th)\u2014 death on the job\u2014 cause of death unknown \u2014 application of Pickrell presumption of compensability \u2014 insufficiency of evidence to rebut presumption\nWhere death occurred within the decedent\u2019s course of employment as a traffic light technician and circumstances bearing on the work-relatedness of his death were unknown, the Industrial Commission correctly invoked the Pickrell presumption of compensability; furthermore, the Commission did not err in rejecting defendant\u2019s contention that the introduction of any evidence, no matter how speculative or unpersuasive, wholly deflates the Pickrell presumption and in determining that the evidence proffered by defendant was insufficient to rebut the presumption.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 263 et seq.\nAppeal by defendant from order entered 24 February 1994 by the North Carolina Industrial Commission. Heard in the Court of Appeals 25 January 1995.\nTaft, Taft & Haigler, P.A., by Thomas F. Taft and James S. Walker, for plaintiff-appellee.\nPoyner & Spruill, L.L.P., by Ernie K. Murray, for defendant-appellant." }, "file_name": "0249-01", "first_page_order": 281, "last_page_order": 289 }