{
  "id": 11913673,
  "name": "JENNIE LOU STRICKLAND, Mother and JERRY STRICKLAND, Father, of GORDON G. STRICKLAND, Employee, Plaintiff v. CAROLINA CLASSICS CATFISH, INC., Employer, & NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Carrier, Defendants",
  "name_abbreviation": "Strickland v. Carolina Classics Catfish, Inc.",
  "decision_date": "1995-06-06",
  "docket_number": "No. COA94-781",
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    "judges": [
      "Judge MARTIN, Mark D. concurs.",
      "Judge GREENE dissents."
    ],
    "parties": [
      "JENNIE LOU STRICKLAND, Mother and JERRY STRICKLAND, Father, of GORDON G. STRICKLAND, Employee, Plaintiff v. CAROLINA CLASSICS CATFISH, INC., Employer, & NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Carrier, Defendants"
    ],
    "opinions": [
      {
        "text": "LEWIS, Judge.\nGordon G. Strickland was killed in a highway accident which occurred while returning from a trip for his employer, defendant Carolina Classics Catfish, Inc. (hereinafter Catfish, Inc.). On 12 June 1990, Strickland began work at 8:00 a.m., drove over 200 miles to make a delivery of catfish fingerlings, and then began his return trip. He was driving a company truck with three storage tanks mounted on the truck bed. After the delivery, two tanks were empty and one contained dead catfish and water. At approximately 1:20 a.m. on 13 June 1990, as he was driving north along Highway 903, Strickland lost control of the truck in a sharp curve and was killed when his truck overturned. The regular speed limit on the road was 55 miles per hour but 35 miles per hour at the curve. It is undisputed that Strickland was driving about 50 miles per hour in the curve and about 40 miles per hour when the truck crashed, that he had a blood alcohol concentration of 100 milligrams percent (equivalent to .10 on a breathalyzer scale), that he was not wearing a seat belt at the time of the accident, and that Workers\u2019 Compensation applies. The evidence also tended to show that Strickland was thrown about in the truck and received fatal head injuries.\nStrickland\u2019s parents, Jennie Lou Strickland and Jerry Strickland, gave notice of Strickland\u2019s death and their request for compensation to defendant Catfish, Inc. pursuant to N.C.G.S. \u00a7 97-22. The parties failed to reach an agreement, and claimants requested a hearing pursuant to N.C.G.S. \u00a7 97-83. Defendants contend that the claim is precluded by N.C.G.S. \u00a7 97-12, which bars workers\u2019 compensation when intoxication proximately causes the injury or death of the worker. Deputy Commissioner John Charles Rush heard evidence on whether Strickland was intoxicated and what factors caused the accident.\nThe key evidence presented on whether intoxication proximately caused Strickland\u2019s death was as follows: \u25a0\nTrooper Jerry Mumford, who arrived at the accident scene shortly after the accident, testified that there was a very slight odor of alcohol about the cab of the truck. On his accident report, he listed alcohol as a \u201ccontributing circumstance\u201d and indicated that Strickland had been drinking but that he was unable to determine impairment. He stated that some persons are more tolerant of alcohol than others so that impairment must be determined based on a variety of factors and observations. He also testified that other factors such as speed, fatigue, and weight shift contributed to the accident.\nDeputy Sheriff Thomas Wilson who lived near the curve testified that the curve was \u201ctreacherous\u201d and would be \u201cmore severe\u201d for a large vehicle like a truck. He also testified that he was aware of about seven or eight accidents having occurred at that curve.\nDr. Page Hudson, a forensic pathologist, testified that he thought Strickland was impaired because, in his view, anyone with a blood alcohol concentration of 100 milligrams percent was impaired. He noted that the condition of Strickland\u2019s liver indicated previous heavy use of alcohol. He further testified that alcohol was a contributing cause but that he could not say it was the sole cause, that speed was \u201ca huge factor\u201d, and that speed, fatigue, weight shift, and alcohol all were probably factors causing the accident. On cross-examination, he conceded that the accident \u201ccould reasonably have happened without any one of\u2019 the factors of alcohol, speed, fatigue, lack of familiarity with the road, time of day, or the presence of liquids in the truck and that \u201cany one of them [the factors], as far as I\u2019m concerned, could have been dropped out and it [the accident] still could have happened.\u201d\nCharles Manning, Jr., an accident reconstructionist called by defendants, testified that weight shift did not contribute to the accident, that speed was \u201cthe major contributing factor\u201d causing the accident and that alcohol was a second factor. He also conceded that it was \u201cpossible\u201d that the accident could have happened without alcohol consumption.\nBarry Mitchell Hamill, an accident reconstructionist called by plaintiffs, testified that the curve was difficult and that weight shift and fatigue contributed to the accident. In describing the effect of weight shift, he testified that Strickland had control of the truck up until a certain point when the weight shifted and once that point was reached Strickland was \u201cat a point of no return\u201d and there was \u201cnothing more\u201d that could be done to control the vehicle at that point. He also testified that the baffles in the tanks were not designed to prevent water from shifting from side to side and that this design contributed to the weight shift causing the truck to turn over. As to the impact of alcohol use, he testified that he had \u201cno way of knowing\u201d whether alcohol use contributed to the accident because he could not know, absent further information and observations, what Strickland\u2019s alcohol tolerance was.\nStrickland\u2019s sister, Sonya Pickier, testified that her brother was not a heavy drinker. She also testified that the truck was difficult to handle, her brother was uncomfortable driving it, and that the seat belt was not working two weeks prior to the accident. She further testified that her brother was more accustomed to driving a car, rather than the truck, around the curve.\nDeputy Commissioner Rush awarded compensation to claimants after making the following findings of fact and conclusions of law, inter alia, on the issue of whether intoxication caused the accident:\nFINDINGS OF FACT:\n5. At about 1:20 a. m. on June 13, 1990, the deceased was travel-ling north on Highway 903 .... A 35-mile per hour speed sign was located south of the Bridge for northbound traffic .... The deceased continued on the highway and into the sharp curve. He was about two-thirds of the way through the curve when the truck started skidding sideways to the right. The truck skidded onto the right grassy shoulder of the highway where it continued to skid and then turned over landing in an upside down position .... The deceased was thrown about in the cab of the truck and sustained severe head injuries causing his instant death.\n6. . . . The deceased was travelling about 50 miles per hour around the curve and about 40 miles per hour when the truck impacted.\n7. When State Highway Patrolman, Jerry Mumford, arrived at the scene about five minutes after the accident the deceased was still in the cab of the Nissan truck and there was a slight odor of alcohol about the cab. There were no other signs of alcohol about the cab of the truck. The patrolman noted on his investigation report alcohol use and exceeding safe speed limit were a contributing circumstances [sic] and that the deceased had been drinking but he was unable to determine the impairment of the deceased.\n9. An autopsy report revealed the deceased had a blood alcohol of 100 mg% which is the same as .10 ... . There was [sic] fatty changes in the liver which indicated the deceased consumed considerable alcohol in the past. Since the deceased consumed alcohol to this extent he would have had a high tolerance to alcohol. The cause of death on the report was multiple severe head injuries.\n10. At the time of the accident the deceased had been on duty with the defendant employer about 17 hours. During about eight of these hours the deceased was driving the Nissan truck.\n12. The death of deceased was not proximately caused by his intoxication.\nCONCLUSIONS OF LAW:\n1. The deceased sustained an injury by accident arising out of and in the course of his employment on June 13, 1990, and such injury by accident resulted in his immediate death. The death of the deceased was not proximately caused by his intoxication. The plaintiffs, therefore, shall not be barred from receiving compensation in this case. \u00a7 G. S. 97-2(6), \u00a7 G. S. 97-12.\n(Emphasis added). Defendants requested review by the full Commission (hereinafter Commission). The Commission adopted Deputy Commissioner Rush\u2019s opinion and award.\nThe key issue on appeal is whether the Commission erred in finding as fact and concluding as a matter of law that Strickland\u2019s intoxication was not a proximate cause of his death. We affirm.\nThe scope of review of an appeal from the Industrial Commission is limited to a determination of whether the findings of the Commission are supported by \u201c \u2018any competent evidence/ \u201d and \u201c \u2018whether the Commission\u2019s findings of fact justify its legal conclusions and decision.\u2019 \" Roberts v. ABR Assocs., Inc., 101 N.C. App. 135, 138, 398 S.E.2d 917, 918 (1990) (quoting Sanderson v. Northeast Constr. Co., 77 N.C. App. 117, 120-21, 334 S.E.2d 392, 394 (1985)). The Commission\u2019s findings of fact are conclusive on appeal if supported by competent evidence; its legal conclusions are reviewable on appeal. Roberts, 101 N.C. App. at 141, 398 S.E.2d at 920. In addition, the Commission, and not this Court, is \u201cthe sole judge of the credibility of the witnesses\u201d and the weight given to their testimony. Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993).\nThe employer bears the burden of establishing, pursuant to N.C.G.S. \u00a7 97-12, that intoxication was the proximate cause of the injury. Sidney v. Raleigh Paving & Patching, 109 N.C. App. 254, 256, 426 S.E.2d 424, 426 (1993). To establish proximate cause under N.C.G.S. \u00a7 97-12, an employer must show that \u201cit is more probable than not that intoxication was a cause in fact of the injury,\u201d but need not show that intoxication was \u201ca sole cause.\u201d Id. In affirming the Commission\u2019s opinion and award, the Sidney court stated that \u201cthe opinion of the Industrial Commission ... is conclusive on this Court if it is supported by any competent evidence . . . and can only be set aside if there is a complete lack of competent evidence.\" Id. (emphasis added) (citations omitted).\nAfter reviewing all of the evidence presented in this case, we hold that there is competent evidence to support the Commission\u2019s findings of fact and that these findings justify its conclusion of law that Strickland\u2019s death was not proximately caused by his intoxication. Patrolman Mumford\u2019s testimony that alcohol was a contributing circumstance was qualified by his further testimony that he could not determine impairment and that his listing of alcohol as a contributing circumstance simply meant that the investigation revealed that Strickland \u201chad a determined amount of alcohol in his body at the time of the accident.\u201d Although Hudson and Manning suggested that intoxication was a contributing cause, their testimony was contra-dieted by concessions on cross-examination that the accident could also have occurred even if Strickland had not been drinking. The weight and sufficiency of the evidence on these factors depended in large part on the credibility of the witnesses. Since Hudson and Manning equivocated on whether intoxication was a proximate cause of Strickland\u2019s death, we can reasonably conclude that Deputy Commissioner Rush and the Commission found their credibility wanting on this issue. See Sidney, 109 N.C. App. at 257, 426 S.E.2d at 427.\nThe record is also replete with evidence that fatigue, shifting of the water and catfish in the storage tanks, excessive speed, the difficulty of handling the truck on the curve, and the unused seat belt were contributing causes of Strickland\u2019s death. Manning and Hudson stated, respectively, that speed was \u201cthe major contributing factor\u201d or \u201ca huge factor.\u201d Mumford also stated that speed was a factor. Mumford, Hudson, and Hamill all stated that fatigue was a causal factor. Strickland\u2019s sister testified that the truck was difficult to handle, the seat belt was not working, and that her brother was uncomfortable driving the truck and not used to driving it around that curve. Furthermore, Hamill testified that once the truck reached a certain point in the curve and the weight shifted, there was nothing Strickland could have done to regain control of the vehicle. Both Mumford and Hudson confirmed that weight shift was a contributing factor. The Commission could reasonably have concluded that any of these factors proximately caused Strickland\u2019s death and that defendants did not meet their burden to prove that intoxication was a proximate cause.\nGiven the presence of competent evidence on both sides of the issue of whether intoxication was a proximate cause of death, we affirm the opinion of the Commission that the employer did not carry its burden on this issue.\nDefendants also contend that the Commission failed to review the award as required pursuant to N.C.G.S. \u00a7 97-85 (1991). We conclude that this assignment of error is without merit.\nFor the reasons stated, the Opinion and Award of the Commission is affirmed.\nAffirmed.\nJudge MARTIN, Mark D. concurs.\nJudge GREENE dissents.",
        "type": "majority",
        "author": "LEWIS, Judge."
      },
      {
        "text": "Judge Greene\ndissenting.\nBecause some of the testimony in this case is legally insufficient to support a finding of fact that the \u201cdeath of the deceased was not proximately caused by his intoxication\u201d and because the Commission failed in its duty to identify in its Opinion and Award the portions of testimony on which its finding was based, I would reverse the Opinion and Award of the Commission.\nThere were four persons who testified with regard to the deceased\u2019s intoxication at the time of the accident. Hudson stated that \u201cin [his] opinion [intoxication] did contribute\u201d to the accident, but testified as follows on cross-examination:\nQ. . . . Considering all the factors that were at work here absent the alcohol \u2014 the speed, the fatigue, the truck, the fact that he was hauling liquids, the fact that it was late at night, the fact that he may or may not have been familiar with the road \u2014 isn\u2019t it entirely conceivable that this accident could have happened exactly the same way that it did absent any alcohol in his system.\nA. Yes, it could have happened \u2014 could reasonably have happened without any one of those factors. Any one of them, as far as I\u2019m concerned, could have been dropped out and it still could have happened.\nManning testified that speed and alcohol, and not the shifting of the truck\u2019s weight due to the tank full of catfish and water, were the factors which contributed to Strickland\u2019s accident. He also admitted on cross-examination, however, that if Strickland were driving fifty-three miles per hour around the curve, in the same truck, at 1:30 a.m., \u201c[i]t\u2019s possible\u201d that the accident could have still occurred, even absent any alcohol consumption by Strickland. Mumford listed alcohol as a \u201ccontributing circumstance\u201d on his accident report and also determined that speed, the time of day, and a shifting of the weight on the truck contributed to the accident. Hamill cited fatigue, weight shift, and speed as contributing causes, but stated that he had \u201cno way of knowing whether\u201d Strickland\u2019s alcohol use was a contributing factor based on the evidence available.\nThe dispositive question is whether this testimony can support the finding entered by the Commission that intoxication was not a proximate cause of the death of the employee. I do not disagree with the majority that this Court is bound by the finding if there is \u201cany competent evidence\u201d to support it. This \u201cany competent evidence\u201d standard of review, however, does not mean that any evidence, without regard to its quantity, is sufficient to support a finding. In order to support a finding, the competent evidence must be of \u201cminimum quantity.\u201d 3 Arthur Larson & Lex K. Larson, The Law of Workmen\u2019s Compensation \u00a7 80.10(c) [hereinafter Larson]. In the words of our Supreme Court, the question is whether there exist \u201csufficient competent evidence ... to support [the] findings of fact [of the Commission].\u201d Walston v. Burlington Indus., 304 N.C. 670, 678, 285 S.E.2d 822, 827, reh\u2019g granted, 305 N.C. 296, - S.E.2d \u2014 (1982) (making factual correction only); Hildebrand v. Furniture Co., 212 N.C. 100, 109, 193 S.E. 294, 300 (1937); see also Keller v. Wiring Co., 259 N.C. 222, 223, 130 S.E.2d 342, 342-43 (1963) (appellate court reviews evidence to determine whether it was \u201csufficient\u201d to support the Commission\u2019s findings); Aycock v. Cooper, 202 N.C. 500, 504, 163 S.E. 569, 570 (1932) (there must be evidence of \u201csufficient probative force\u201d to support the Commission\u2019s findings). Regardless of the phrase used to describe the \u201cminimum quantity\u201d of the evidence necessary to support a finding of the Commission, the finding \u201ccannot . . . be based on speculation and conjecture,\u201d Larson at 80.00, and must be based on evidence that a reasonable mind might accept as adequate to support the finding. See Garret v. Overman, 103 N.C. App. 259, 262, 404 S.E.2d 882, 884, disc. rev. denied, 329 N.C. 787, 408 S.E.2d 519 (1991). When there is a lack of sufficient competent evidence to support the Commission\u2019s findings of fact, this Court will set those findings aside. See Hildebrand, 212 N.C. at 112-13, 193 S.E. at 303.\nThe majority concludes that there is \u201ccompetent evidence on both sides of the issue of whether intoxication was a proximate cause of death.\u201d The only testimony in this record that intoxication was not a cause of the death is that of Hudson and Manning given on cross-examination. Manning stated that the accident \u201cpossibl[y] could have happened absent alcohol.\u201d This testimony is nothing more than speculation and cannot support a finding of no causation. See Hinson v. National Starch & Chem. Corp., 99 N.C. App. 198, 202, 392 S.E.2d 657, 659 (1990) (sufficient evidence must reflect some degree of probability). Hudson was asked whether it was \u201cconceivable\u201d that alcohol may not have been a contributing factor. In response he stated that the accident \u201ccould\u201d have happened even absent the use of alcohol. Although opinion testimony expressed in terms of \u201ccould\u201d can be sufficient evidence, it \u201cdepends upon the general state of the evidence.\u201d 1 Kenneth S. Broun, Brandis and Broun on North Carolina Evidence \u00a7 189 n.330 (4th ed. 1993). The opinion that the accident \u201ccould\u201d have happened without alcohol was given in response to the question of whether it was \u201cconceivable\u201d that alcohol was not a contributing factor to the death. Conceivable is defined to mean \u201clogically possible.\u201d Webster\u2019s Third New International Dictionary 469 (1968). The answer when read in the context of the question suggests nothing more than the possibility that the accident could have happened absent the use of alcohol and thus cannot support the finding of no proximate cause. See State v. Robinson, 310 N.C. 530, 534, 313 S.E.2d 571, 574-75 (1984) (\u201ccould\u201d cause vaginal condition insufficient to support finding).\nThe findings entered by the Commission do not reveal whether the Commission based its proximate cause finding on the evidence which is inadequate to support that finding. See Morgan v. Thomasville Furniture Indus., Inc., 2 N.C. App. 126, 128, 162 S.E.2d 619, 620 (1968) (Commission must make specific findings with regard to crucial facts). Accordingly, I would reverse the Opinion and Award of the Commission and remand for entry of a new Opinion and Award with directions that the testimony of Hudson and Manning given on cross-examination, as discussed herein, not be considered as sufficient to support a finding on proximate cause.",
        "type": "dissent",
        "author": "Judge Greene"
      }
    ],
    "attorneys": [
      "Harrington, Edwards & Braddy, L.L.P., by Roberta L. Edwards and Peter J. M. Romary, for plaintiff-appellee.",
      "Young Moore Henderson & Alvis P.A., by Joe E. Austin, Jr., for defendants-appellants."
    ],
    "corrections": "",
    "head_matter": "JENNIE LOU STRICKLAND, Mother and JERRY STRICKLAND, Father, of GORDON G. STRICKLAND, Employee, Plaintiff v. CAROLINA CLASSICS CATFISH, INC., Employer, & NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Carrier, Defendants\nNo. COA94-781\n(Filed 6 June 1995)\nWorkers\u2019 Compensation \u00a7 129 (NCI4th)\u2014 intoxication of employee \u2014 contributing but not proximate cause of death \u2014 sufficiency of evidence\nThe Industrial Commission did not \u00e9rr in finding as fact and concluding as a matter of law that the employee\u2019s intoxication was not a proximate cause of his death where there was testimony that alcohol was a contributing circumstance, but there was also testimony that the accident could also have occurred even if the employee had not been drinking; and there was evidence that fatigue, shifting of load, excessive speed, difficulty of handling the truck on the curve, and an unused seat belt were contributing causes of the employee\u2019s death.\nAm Jur 2d, Workers\u2019 Compensation \u00a7 256.\nJudge Greene dissenting.\nAppeal by defendants from the Opinion and Award of the North Carolina Industrial Commission filed 11 April 1994. Heard in the Court of Appeals 7 April 1995.\nHarrington, Edwards & Braddy, L.L.P., by Roberta L. Edwards and Peter J. M. Romary, for plaintiff-appellee.\nYoung Moore Henderson & Alvis P.A., by Joe E. Austin, Jr., for defendants-appellants."
  },
  "file_name": "0097-01",
  "first_page_order": 131,
  "last_page_order": 140
}
