{ "id": 12122508, "name": "YVONNE BASON, WIDOW OF DOUGLAS BASON, deceased, Employee, Plaintiff v. KRAFT FOOD SERVICE, INC., Employer; HARTFORD ACCIDENT AND INDEMNITY COMPANY, INC., Carrier; Defendants", "name_abbreviation": "Bason v. Kraft Food Service, Inc.", "decision_date": "2000-09-19", "docket_number": "No. COA99-1181", "first_page": "124", "last_page": "129", "citations": [ { "type": "official", "cite": "140 N.C. App. 124" } ], "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": "399 S.E.2d 104", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "106", "parenthetical": "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)" }, { "page": "106" } ], "opinion_index": 0 }, { "cite": "328 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2543161 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "71" }, { "page": "71" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0067-01" ] }, { "cite": "460 S.E.2d 319", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "340 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790181, 790123, 790188, 790231, 790142 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/340/0568-02", "/nc/340/0568-05", "/nc/340/0568-04", "/nc/340/0568-01", "/nc/340/0568-03" ] }, { "cite": "454 S.E.2d 704", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "709" } ], "opinion_index": 0 }, { "cite": "288 S.E.2d 806", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "304 N.C. 726", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571392, 8571365, 8571463, 8571337, 8571433 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/304/0726-03", "/nc/304/0726-02", "/nc/304/0726-05", "/nc/304/0726-01", "/nc/304/0726-04" ] }, { "cite": "283 S.E.2d 436", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1981, "pin_cites": [ { "page": "437-38" }, { "page": "437-38" }, { "page": "437-38" } ], "opinion_index": 0 }, { "cite": "54 N.C. App. 314", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521916 ], "weight": 3, "year": 1981, "pin_cites": [ { "page": "316" }, { "page": "316" }, { "page": "316" } ], "opinion_index": 0, "case_paths": [ "/nc-app/54/0314-01" ] }, { "cite": "368 S.E.2d 582", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1988, "pin_cites": [ { "page": "584" }, { "page": "584-85" }, { "page": "586" }, { "page": "586" }, { "page": "584", "parenthetical": "claimant must prove all three elements of workers' compensation claim" } ], "opinion_index": 0 }, { "cite": "258 N.C. 327", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560621 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/258/0327-01" ] }, { "cite": "322 N.C. 363", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514047 ], "weight": 8, "year": 1988, "pin_cites": [ { "page": "370" }, { "page": "371" }, { "page": "366" }, { "page": "371" }, { "page": "366" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0363-01" ] }, { "cite": "118 N.C. App. 249", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917475 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "254-256" }, { "page": "256" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0249-01" ] } ], "analysis": { "cardinality": 571, "char_count": 13730, "ocr_confidence": 0.75, "pagerank": { "raw": 1.447453335117184e-07, "percentile": 0.6544107397767206 }, "sha256": "5e9d933ab4fb06a7967f10b2e19fde676e4f13074efa422937b752c952e513d9", "simhash": "1:1d11e60ad447bc56", "word_count": 2171 }, "last_updated": "2023-07-14T16:18:32.795698+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EDMUNDS and SMITH concur." ], "parties": [ "YVONNE BASON, WIDOW OF DOUGLAS BASON, deceased, Employee, Plaintiff v. KRAFT FOOD SERVICE, INC., Employer; HARTFORD ACCIDENT AND INDEMNITY COMPANY, INC., Carrier; Defendants" ], "opinions": [ { "text": "GREENE, Judge.\nYvonne Bason (Plaintiff), widow of Douglas Bason, deceased, appeals an opinion and award of the Full Commission of the North Carolina Industrial Commission (Full Commission) filed on 2 July 1999, in favor of Kraft Food Services, Inc. (Defendant).\nThe evidence shows that in February of 1994, Douglas Bason (Decedent) was working as a delivery driver for Defendant, where he had been employed for approximately twenty-two years. As part of his employment duties, Decedent delivered items such as frozen foods and dry goods to various companies. At a delivery location, Decedent would use a hand truck to unload delivery orders from his delivery truck. Although Decedent had an assigned route, he also worked as a substitute driver for other routes when the drivers of the other routes were either ill or on vacation. On days that Decedent was \u201con call\u201d as a substitute driver, he would receive a telephone call from a supervisor if he was needed to drive another driver\u2019s route.\nAt approximately 6:50 a.m. on the morning of 22 February 1994, Decedent received a telephone call at home from one of his supervisors. The supervisor notified Decedent he was needed as a substitute driver for the High Point/Thomasville route. Decedent therefore reported to work, and at approximately 7:30 a.m. he began driving the High Point/Thomasville route. Brad Thomas (Thomas), a supervisor at Defendant, testified the regularly scheduled \u201ctime out\u201d for this route was 4:30 a.m.; however, a substitute driver would not be expected to make deliveries according to the regular schedule because it would be difficult after starting the route behind schedule to get back on schedule. Thomas stated the High Point/Thomasville route did not have more stops than other routes and the deliveries did not weigh more than deliveries on other routes. Decedent had never complained to Thomas about the High Point/Thomasville route being more difficult than other routes.\nThomas testified that on the evening of 22 February 1994, he was notified by an employee of Defendant that Decedent had not returned to Defendant\u2019s depot with the delivery truck. Thomas, therefore, notified Decedent\u2019s wife and local law enforcement agencies that Decedent was missing. The following day, Decedent\u2019s body was found in his delivery truck, which was parked behind a building where Decedent had been scheduled to make a delivery.\nDeborah L. Radisch, M.D. (Dr. Radisch), testified in her deposition that she was present at Decedent\u2019s autopsy and was familiar with the autopsy report. Dr. Radish testified the autopsy revealed Decedent suffered from \u201ccoronary atherosclerotic disease of a severe nature.\u201d This condition, which develops over time, is \u201ccommonly referred to as hardening of the arteries.\u201d The autopsy also stated Decedent suffered from \u201catherosclerotic disease of cerebral blood vessels.\u201d Cerebral blood vessels \u201care the blood vessels that actually take blood to and from the brain,\u201d and this condition also relates to \u201chardening of the arteries.\u201d The autopsy revealed Decedent\u2019s cause of death to be a cardiac arrhythmia caused by \u201cischemic heart disease,\u201d which means the heart is \u201cnot getting enough oxygenated blood.\u201d Dr. Radisch stated that nothing in the autopsy would indicate Decedent\u2019s death was caused by overexertion, and \u201cpeople who are not exerting themselves could suddenly die of an arrhythmia as well as people who are exerting themselves.\u201d The autopsy also revealed no signs of trauma.\nIn an opinion and award filed on 30 September 1997, the deputy commissioner of the North Carolina Industrial Commission concluded Plaintiffs claim was not compensable under the North Carolina Workers\u2019 Compensation Act. Plaintiff appealed the opinion and award of the deputy commissioner to the Full Commission.\nIn an opinion and award filed on 2 July 1999, the Full Commission entered findings of fact consistent with the facts stated above, including the following pertinent findings of fact:\n4. ... [Djecedent was not scheduled to work on February 22, 1994, but was \u201con call.\u201d. . . This was a normal activity and something that. .. [D]ecedent had done in a regular manner during his many years of service to . . . [Defendant].\n5. There was nothing unusual about the route, the hours, or the amount or type of deliveries required of . . . [D]ecedent on [the day of his death].\n7. . . . The cause of . . . [D]ecedenfs death was cardiac arrhythmia, which was a sudden, fatal irregular heart beat, precipitated by the severe ischemic heart disease... .\n8. The autopsy revealed no evidence of trauma....\nThe Full Commission then made the following pertinent conclusions of law:\n2. Where circumstances bearing on work-relatedness are unknown and where the death occurs within the course of employment, plaintiff should be able to rely on a presumption that death was work-related and therefore compensable, whether the medical reason for death is known or unknown. Melton v. City of Rocky Mount, 118 N.C. App. 249, 254-256 (1995), citing Pickrell v. Motor Convoy, Inc., 322 N.C. 363, 370 (1988). This presumption of compensability then requires the defendant to come forward with some evidence that the death occurred as a result of a non-compensable cause. Otherwise, the plaintiff prevails. Pickrell, 322 N.C. at 371. In the presence of sufficient competent evidence that the death was not compensable, the presumption is successfully rebutted. The Industrial Commission should then find the facts based on all the evidence adduced, drawing such reasonable inferences from the competent, credible, and convincing evidence as may be permissible, the burden of persuasion remaining with the plaintiff. Id.\n3. In the case at hand, . . . [D]efendant[] ha[s] successfully rebutted the presumption of compensability by presenting competent, credible, and convincing evidence that the cause of . . . [D]ecedent\u2019s death was severe heart disease which caused a fatal irregular heartbeat. Id. There was no convincing evidence of any unusual or extraordinary exertion by... [D]ecedent. See Bellamy v. Morace Stevedoring Co., 258 N.C. 327 (1962). According to the facts adduced from the evidence and reasonable inferences drawn therefrom, . . . [D]ecedent, thus, did not sustain an injury by accident arising out of his employment with . . . [Defendant], N.C. Gen. Stat. Section 97-2(6).\nThe Full Commission, therefore, denied Plaintiffs claim.\nThe dispositive issue is whether Defendant rebutted the presumption, under Pickrell v. Motor Convoy, Inc., 322 N.C. 363, 368 S.E.2d 582 (1988), that Decedent sustained an injury by accident and, if so, whether Plaintiff met her burden of proving Decedent sustained an injury by accident.\nPlaintiff argues Defendant did not present sufficient evidence to rebut the presumption under Pickrell that Decedent sustained an injury by accident. We disagree.\nAppellate review of a decision of the Full Commission is limited to whether the record contains competent evidence to support the Full Commission\u2019s findings of fact, and whether the findings of fact support the Full Commission\u2019s conclusions of law. Hemric v. Manufacturing Co., 54 N.C. App. 314, 316, 283 S.E.2d 436, 437-38 (1981), disc. review denied, 304 N.C. 726, 288 S.E.2d 806 (1982).\n\u201cIn order for a claimant to recover workers\u2019 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.\u201d 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 \u201csufficient, credible evidence that the death is non-compensable\u201d), disc. review denied, 340 N.C. 568, 460 S.E.2d 319 (1995). If the defendant meets this burden of production, \u201cthe 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.\u201d Pickrell, 322 N.C. at 371, 368 S.E.2d at 586.\nIn this case, the Full Commission found Plaintiff was entitled to the presumption under Pickrell that Decedent\u2019s cause of death was an injury by accident arising out of employment. Defendant, however, presented evidence and the Full Commission found as fact that \u201c[t]here was nothing unusual about the route, the hours, or the amount or type of deliveries required of. .. [D]ecedent\u201d on the day of his death. Defendant also presented evidence and the Full Commission found as fact that \u201c[t]he cause of. . . [D]ecedent\u2019s death was cardiac arrhythmia, which was a sudden, fatal irregular heart beat, precipitated by the severe ischemic heart disease,\u201d and \u201c[t]he autopsy revealed no evidence of trauma.\u201d 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\u2019s conclusion of law that Defendant \u201csuccessfully rebutted the presumption of com-pensability\u201d 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 \u201caccident\u201d within the meaning of the workers\u2019 compensation statute when it occurs while the employee is \u201cconducting his work in the usual way\u201d and the heart attack is not caused by \u201cunusual or extraordinary exertion or extreme conditions\u201d (citation omitted)). Accordingly, Plaintiff had the burden of proving Decedent\u2019s death resulted from an accident.\nPlaintiff also argues the evidence shows Decedent\u2019s 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\u2019s work to be \u201cunusually strenuous.\u201d We disagree.\nIn this case, the Full Commission made findings of fact that being called into work as a substitute driver \u201cwas a normal activity and something that. . . [D]ecedent had done in a regular manner during his many years of service to . . . [Defendant]\u201d and \u201c[t]here was nothing unusual about the route, the hours, or the amount or type of deliveries required of... [D]ecedent\u201d on the day of his death. 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, considered with the Full Commission\u2019s findings of fact that \u201c[t]he cause of . . . [DJecedent\u2019s death was cardiac arrhythmia\u201d and \u201c[t]he autopsy revealed no evidence of trauma,\u201d support the Full Commission\u2019s conclusion of law that Decedent \u201cdid not sustain an injury by accident.\u201d See Cody, 328 N.C. at 71, 399 S.E.2d at 106. Accordingly, the Full Commission properly denied Plaintiff\u2019s workers\u2019 compensation claim.\nAffirmed.\nJudges EDMUNDS and SMITH concur.\n. Defendant argues in its brief to this Court that the Pickrell presumption does not apply in this case because \u201cthe medical evidence establishes . . . that [Decedent] died of a result of cardiac arrhythmia brought on by ischemic heart disease.\u201d The Full Commission, however, concluded the Pickrell presumption did apply and, because Defendant did not cross-assign error to this conclusion, Defendant may not now argue before this Court that the Full Commission erred by applying this presumption. See N.C.R. App. P. 10(d).\n. Because the Full Commission properly concluded Decedent did not sustain an injury by accident, we need not address the issue of whether the Full Commission properly concluded Decedent\u2019s injury did not arise out of employment. See Piokrell, 322 N.C. at 366, 368 S.E.2d at 584 (claimant must prove all three elements of workers\u2019 compensation claim).", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Gray, Newell, Johnson & Blackmon, LLP, by Angela Newell Gray and S. Camille Payton, for plaintiff-appellant.", "Tuggle Duggins & Meschan, P.A., by J. Reed Johnston, Jr., for defendant-appellee." ], "corrections": "", "head_matter": "YVONNE BASON, WIDOW OF DOUGLAS BASON, deceased, Employee, Plaintiff v. KRAFT FOOD SERVICE, INC., Employer; HARTFORD ACCIDENT AND INDEMNITY COMPANY, INC., Carrier; Defendants\nNo. COA99-1181\n(Filed 19 September 2000)\nWorkers\u2019 Compensation\u2014 injury by accident \u2014 delivery driver found dead \u2014 heart attack \u2014 presumption that death work related \u2014 rebuttal\nThe findings of fact in a workers\u2019 compensation action arising from the death of a delivery driver support the conclusions that decedent did not sustain an injury by accident and that defendant-employer successfully rebutted the presumption that death within the course of employment was work related. Decedent\u2019s death was caused by cardiac arrhythmia; there was nothing unusual about his route, his hours, or the type or amount of the deliveries, and being called into work as a substitute driver was a normal activity.\nAppeal by plaintiff from opinion and award filed 2 July 1999 by the North Carolina Industrial Commission. Heard in the Court of Appeals 15 August 2000.\nGray, Newell, Johnson & Blackmon, LLP, by Angela Newell Gray and S. Camille Payton, for plaintiff-appellant.\nTuggle Duggins & Meschan, P.A., by J. Reed Johnston, Jr., for defendant-appellee." }, "file_name": "0124-01", "first_page_order": 156, "last_page_order": 161 }