{ "id": 8436186, "name": "CAROLINE D'AQUISTO, Plaintiff v. MISSION ST. JOSEPH'S HEALTH SYSTEM, Employer, CAMBRIDGE INTEGRATED SERVICES, Servicing Agent, Defendants", "name_abbreviation": "D'Aquisto v. Mission St. Joseph's Health System", "decision_date": "2005-07-05", "docket_number": "No. COA04-1259", "first_page": "216", "last_page": "230", "citations": [ { "type": "official", "cite": "171 N.C. App. 216" } ], "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": "538 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "914" } ], "opinion_index": 0 }, { "cite": "353 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135777 ], "year": 2000, "pin_cites": [ { "page": "230" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0227-01" ] }, { "cite": "282 S.E.2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "463" } ], "opinion_index": 0 }, { "cite": "304 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565243 ], "year": 1981, "pin_cites": [ { "page": "6" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0001-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "414", "parenthetical": "citation omitted" }, { "page": "414" } ], "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "681", "parenthetical": "citation omitted" }, { "page": "681" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "530 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "563" }, { "page": "553" } ], "opinion_index": 0 }, { "cite": "362 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "year": 2000, "pin_cites": [ { "page": "116" } ], "opinion_index": 0 }, { "cite": "191 S.E. 403", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1937, "pin_cites": [ { "page": "408" } ], "opinion_index": 0 }, { "cite": "211 N.C. 571", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628163 ], "year": 1937, "pin_cites": [ { "page": "579-80" } ], "opinion_index": 0, "case_paths": [ "/nc/211/0571-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-80", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2004, "pin_cites": [ { "parenthetical": "\"The Commission may make rules, not inconsistent with this Article, for carrying out the provisions of this Article.\"" } ], "opinion_index": 0 }, { "cite": "57 S.E.2d 760", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "761" } ], "opinion_index": 0 }, { "cite": "231 N.C. 477", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630523 ], "year": 1950, "pin_cites": [ { "page": "479" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0477-01" ] }, { "cite": "286 S.E.2d 575", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "576" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 663", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527802 ], "year": 1982, "pin_cites": [ { "page": "665" } ], "opinion_index": 0, "case_paths": [ "/nc-app/55/0663-01" ] }, { "cite": "502 S.E.2d 419", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "422-23", "parenthetical": "quoting Sparks v. Mountain Breeze Rest., 55 N.C. App. 663, 665, 286 S.E.2d 575, 576 (1982)" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 220", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11466277 ], "year": 1998, "pin_cites": [ { "page": "225", "parenthetical": "quoting Sparks v. Mountain Breeze Rest., 55 N.C. App. 663, 665, 286 S.E.2d 575, 576 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0220-01" ] }, { "cite": "372 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "527" } ], "opinion_index": 0 }, { "cite": "323 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562603 ], "year": 1988, "pin_cites": [ { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0279-01" ] }, { "cite": "528 S.E.2d 633", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "635", "parenthetical": "quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 461", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11094063 ], "year": 2000, "pin_cites": [ { "page": "465", "parenthetical": "quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0461-01" ] }, { "cite": "472 S.E.2d 26", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "343 N.C. 516", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798760, 798832, 798902, 798938, 798973 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/343/0516-04", "/nc/343/0516-03", "/nc/343/0516-05", "/nc/343/0516-02", "/nc/343/0516-01" ] }, { "cite": "464 S.E.2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "486" }, { "page": "486" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 48", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915261 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "54-55" }, { "page": "54-55" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0048-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-88.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2004, "opinion_index": 0 }, { "cite": "300 S.E.2d 899", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "902", "parenthetical": "employee's death arose out of his employment where he was working at the time of the shooting, the shooting occurred on the employer's premises, and the shooting was caused by an argument between two co-employees" } ], "opinion_index": 0 }, { "cite": "61 N.C. App. 468", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521774 ], "year": 1983, "pin_cites": [ { "page": "473", "parenthetical": "employee's death arose out of his employment where he was working at the time of the shooting, the shooting occurred on the employer's premises, and the shooting was caused by an argument between two co-employees" } ], "opinion_index": 0, "case_paths": [ "/nc-app/61/0468-01" ] }, { "cite": "364 S.E.2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "420" }, { "page": "420" }, { "page": "421" } ], "opinion_index": 0 }, { "cite": "321 N.C. 350", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566796 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "354" }, { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0350-01" ] }, { "cite": "233 S.E.2d 529", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1977, "pin_cites": [ { "page": "531" }, { "page": "533" }, { "page": "533", "parenthetical": "citation omitted" }, { "page": "533", "parenthetical": "employee's assault and death did not arise out of her employment where employee had completed work at a store in a mall, was not carrying any work materials, and was assaulted in the mall parking lot" } ], "opinion_index": 0 }, { "cite": "292 N.C. 399", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569857 ], "weight": 4, "year": 1977, "pin_cites": [ { "page": "402" }, { "page": "404" }, { "page": "404" }, { "page": "404-05" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0399-01" ] }, { "cite": "386 S.E.2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "citing Gallimore v. Marilyn's Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977)" } ], "opinion_index": 0 }, { "cite": "325 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488046 ], "year": 1989, "pin_cites": [ { "parenthetical": "citing Gallimore v. Marilyn's Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977)" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0702-01" ] }, { "cite": "377 S.E.2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1989, "pin_cites": [ { "page": "780", "parenthetical": "citing Gallimore v. Marilyn's Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977)" }, { "page": "781", "parenthetical": "the plaintiff was sexually assaulted after she stopped to help a guest with car trouble because she had been directed to always be helpful to guests; since her decision to stop had its origin in her employment the injuries arose out of her employment" }, { "page": "782", "parenthetical": "the plaintiff's injuries arose out of her employment because the nature of the plaintiff's employment as a cocktail waitress placed her at an increased risk of sexual assault not shared by the general public" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 242", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527997 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "247", "parenthetical": "citing Gallimore v. Marilyn's Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977)" }, { "page": "248-49" }, { "page": "249-50" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0242-01" ] }, { "cite": "494 S.E.2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "347 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551331, 551217, 551062, 551126, 551135 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/347/0410-01", "/nc/347/0410-04", "/nc/347/0410-05", "/nc/347/0410-02", "/nc/347/0410-03" ] }, { "cite": "487 S.E.2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1997, "pin_cites": [ { "page": "792" }, { "page": "792" }, { "page": "792" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 33", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11791839 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0033-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2004, "pin_cites": [ { "page": "(6)" }, { "page": "(6)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1323, "char_count": 32976, "ocr_confidence": 0.758, "pagerank": { "raw": 4.909554579029259e-07, "percentile": 0.9339558020564134 }, "sha256": "8e03b4702af2000585f5b7d9bbbc20b5a1e7779c1ff534d61a883dea9be573fc", "simhash": "1:a7a2e9aa44b1307d", "word_count": 5336 }, "last_updated": "2023-07-14T21:08:31.744997+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge McGEE concur." ], "parties": [ "CAROLINE D\u2019AQUISTO, Plaintiff v. MISSION ST. JOSEPH\u2019S HEALTH SYSTEM, Employer, CAMBRIDGE INTEGRATED SERVICES, Servicing Agent, Defendants" ], "opinions": [ { "text": "WYNN, Judge.\nUnder the Workers\u2019 Compensation Act, an injury is only com-pensable if it is the result of an \u201caccident arising out of and in the course of the employment^]\u201d N.C. Gen. Stat. \u00a7 97-2(6) (2004). In this case, the employer acknowledges that an assault upon Plaintiff-employee occurred \u201cin the course of\u2019 her employment but argues that it did not \u201carise out of\u2019 her employment. For the reasons given in Wake County Hosp. Sys., Inc. v. Safety Nat\u2019l Cas. Corp., 127 N.C. App. 33, 487 S.E.2d 789, disc. review denied, 347 N.C. 410, 494 S.E.2d 600 (1997), we hold that the full Commission properly concluded that the assault \u201carose out of\u2019 Plaintiff\u2019s employment. We further uphold the full Commission\u2019s Opinion and Award on the remaining issues presented on appeal.\nThe record on appeal shows that on 30 April 2001, Plaintiff Caroline D\u2019Aquisto, a cancer analyst at Defendant Mission St. Joseph\u2019s Health System (\u201cMission Health System\u201d), arrived at her office at approximately 6:00 a.m. At approximately 7:15 a.m. Ms. D\u2019Aquisto 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.\nWhile Ms. D\u2019Aquisto 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, \u201cSelene . . . We\u2019re going to finish it.\u201d Ms. D\u2019Aquisto testified that he grabbed her breasts and nipples, turned them, and brought her to her knees. Ms. D\u2019Aquisto 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\u2019Aquisto 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.\nMr. Ward, a twenty-one year employee at Mission Health System, corroborated Ms. D\u2019Aquistb\u2019s testimony, stating that she came out of the stairwell with a man behind her \u201c[a]nd it seemed like he was over the top of her trying to \u2014 trying to grab her again[.]\u201d Ms. DAquisto fell into his arms and said \u201cA.J., I don\u2019t know the man.\u201d The man ran away.\nAfter the incident, Ms. D\u2019Aquisto returned to her office and provided an account of the assault to security personnel. Ms. D\u2019Aquisto then filled out a security incident report. Later that morning, Ms. D\u2019Aquisto reported the incident to the Asheville Police Department.\nThe next day, Ms. D\u2019Aquisto met with Linda Anderson, director of post-op surgical services, and Jerri Mitchell, director of endoscopy. Ms. Anderson testified that Ms. D\u2019Aquisto was very upset, had several tom fingernails, scrapes on her shins, and a \u201chand print\u201d braise on a breast. Ms. Mitchell testified that she observed \u201csome bruises on her chest and on her breasts and they were pretty impressive.\u201d\nAfter the incident, Mission Health System sent out an e-mail alerting employees that an employee had been \u201cinappropriately touched.\u201d The employee newspaper later described it as a more violent attack.\nOn 21 May 2001, Mission Health System security notified Ms. D\u2019Aquisto 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 to be Charles Greene, a sitter for Diversified Personnel. Mr. Greene was later charged with assault and found not guilty.\nOn 25 May 2001, Karen Blicher, Director of Mental Health Education at Mountain Area Health Education Center specializing in women\u2019s psychological issues including sexual assault, evaluated Ms. D\u2019Aquisto. Ms. Blicher testified that \u201cby the end of that first interview it was very clear to me that she was experiencing posttraumatic stress disorder of the acute kind.\u201d On 29 May 2001, Ms. Blicher recommended that Ms. D\u2019Aquisto take a week off of work.\nOn 31 May 2001, Dr. Steven Mendelsohn, a board-certified internist and rheumatologist, evaluated Ms. D\u2019Aquisto. He found:\nThat her neck was very stiff compared to before [the assault]. She had a lot of muscle spasms around the neck, extending across the shoulders and into the back. She had a slight loss of movement in both shoulders. And her upper and lower back were quite sore. She had diffuse old bruises in her chest wall, and her lower back was quite tender.\nDr. Mendelsohn prescribed an anti-depressant, anti-inflammatories, pain medication, and sleeping pills. On 13 June 2001, Dr. Mendelsohn gave Ms. D\u2019Aquisto a written note taking her out of work for a month.\nOn 4 June 2001, Dr. Karen Dedman, a family-practice physician, examined Ms. D\u2019Aquisto who reported that she \u201cwas having vomiting, was terrified, not sleeping, roaring in her ears, coughing to the point of vomiting.\u201d Dr. Dedman observed fading bruises on her breast, upper abdomen, and in her left groin. Dr. Dedman diagnosed Ms. D\u2019Aquisto with \u201csevere acute stress reaction\u201d and felt she was unable to work. Dr. Dedman testified that as a result of the assault Ms. D\u2019Aquisto \u201chad a severe stress reaction psychologically!,] \u2022 \u2022 \u2022 an exacerbation of her underlying left neck pain with underlying degenerative disk diseasef,]\u201d psoriasis, psoriatic arthritis, sleep disorder, and panic attacks.\nIn September 2001, Ms. D\u2019Aquisto began seeing Dr. William Anixter, a psychiatrist. After the initial visits, Dr. Anixter diagnosed Ms. D\u2019Aquisto with posttraumatic stress disorder, chronic type. Upon continued treatment, Dr. Anixter also diagnosed Ms. D\u2019Aquisto with depression which was caused by many events, which included the assault, criminal trial, her sister\u2019s death, and her husband\u2019s disappearance. Dr. Anixter testified that Ms. D\u2019Aquisto was unable to work and prescribed for her various anti-depressants and anti-anxiety medication.\nDr. Claudia Coleman, a psychologist, examined Ms. D\u2019Aquisto at the request of Mission Health System\u2019s counsel. Dr. Coleman performed two tests on Ms. D\u2019Aquisto and examined her history, but did not have any notes from Dr. Anixter at the time she made her report nor did she have an accurate history of Ms. D\u2019Aquisto\u2019s past treatment for depression. At the time of the examination, Ms. D\u2019Aquisto was taking.a variety of medications. Dr. Coleman was unable to give an opinion to any degree of medical certainty about the origin of Ms. D\u2019Aquisto\u2019s panic attacks. Dr. Coleman opined that Ms. D\u2019Aquisto did not have posttraumatic stress disorder, but \u201canxiety disorder, not otherwise specified, in partial remission with dependent personality traits.\u201d\nThis case came for hearing before . Deputy Commissioner Edward Garner, Jr. who awarded Ms. D\u2019Aquisto ongoing total disability compensation, medical and psychological expenses, and ordered Mission Health System to pay costs and attorney\u2019s fees. On 20 May 2004, the full Commission filed an Opinion and Award affirming the prior award. Defendants \u2014 Mission Health System and its insurance carrier servicing agent, Cambridge Integrated Services, Inc. \u2014 appealed.\nOn appeal, Defendants argue that the full Commission erred by (I) concluding that Ms. D\u2019Aquisto\u2019s assault arose out of her employment; (2) disregarding competent evidence; (3) making findings of fact unsupported by competent evidence; and (4) imposing sanctions against Defendants. Defendants also argue that the Industrial Commission\u2019s rules and standards of assessing evidence deprived Defendants of due process. We disagree.\nFirst, Defendants argue that the full Commission erred in concluding that Ms. D\u2019Aquisto\u2019s assault arose out of her employment.\nUnder the Workers\u2019 Compensation Act, an injury is compensable only if it is the result of an \u201caccident arising out of and in the course of the employment[.]\u201d N.C. Gen. Stat. \u00a7 97-2(6) (2004). \u201cWhether an injury arose out of and in the course of employment is a mixed question of law and fact, and the Industrial Commission\u2019s findings in this regard are conclusive on appeal if supported by competent evidence.\u201d Culpepper v. Fairfield Sapphire Valley, 93 N.C. App. 242, 247, 377 S.E.2d 777, 780, aff\u2019d, 325 N.C. 702, 386 S.E.2d 174 (1989) (citing Gallimore v. Marilyn\u2019s Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977)). The employee must establish both the \u201carising out of\u2019 and \u201cin the course of\u2019 requirements to be entitled to compensation. Roberts v. Burlington Indus., Inc., 321 N.C. 350, 354, 364 S.E.2d 417, 420 (1988). Defendants conceded at the hearing that the assault occurred \u201cin the course of\u2019 Ms. D\u2019Aquisto\u2019s employment, but contend that it did not \u201carise out of\u2019 her employment.\nThe words \u201carising out of the employment\u201d refer to the origin or cause of the accidental injury. Roberts, 321 N.C. at 354, 364 S.E.2d at 420. Thus, our first inquiry \u201cis whether the employment was a contributing cause of the injury.\u201d Id. at 355, 364 S.E.2d at 421.\nThe record on appeal shows that as a part of her regular job duties Ms. D\u2019Aquisto had to leave her office and walk to the morgue, which was located on another floor. Therefore, her reason for walking to the morgue that day was for the purpose of performing her job. See Culpepper, 93 N.C. App. at 248-49, 377 S.E.2d at 781 (the plaintiff was sexually assaulted after she stopped to help a guest with car trouble because she had been directed to always be helpful to guests; since her decision to stop had its origin in her employment the injuries arose out of her employment). This evidence supports the full Commission\u2019s determination that Ms. D\u2019Aquisto\u2019s employment was a contributing cause of the injury.\n\u201cSecond, a contributing proximate cause of the injury must be a risk inherent or incidental to the employment, and must be one to which the employee would not have been equally exposed apart from the employment.\u201d Id. at 248, 377 S.E.2d at 781 (citing Gallimore, 292 N.C. at 404, 233 S.E.2d at 533). Under this \u201cincreased risk\u201d analysis, the \u201ccausative danger must be peculiar to the work and not common to the neighborhood.\u201d Gallimore, 292 N.C. at 404, 233 S.E.2d at 533 (citation omitted).\nThe full Commission relied on Wake County Hosp. Sys., Inc., 127 N.C. App. 33, 487 S.E.2d 789, in concluding that Ms. D\u2019Aquisto\u2019s injuries arose out of her employment. In Wake County, the employee was \u201cabducted from the employee parking lot, she was assaulted and killed on an adjacent street, she was carrying work materials, and the assailant was a co-employee.\u201d Id. at 39, 487 S.E.2d at 792. This Court held that, following the reasoning in Culpepper, the facts were sufficient to show a causal relationship between the employee\u2019s employment and her death. Id. at 39-40, 487 S.E.2d at 792; see also Culpepper, 93 N.C. App. at 249-50, 377 S.E.2d at 782 (the plaintiff\u2019s injuries arose out of her employment because the nature of the plaintiff\u2019s employment as a cocktail waitress placed her at an increased risk of sexual assault not shared by the general public); Pittman v. Twin City Laundry & Cleaners, 61 N.C. App. 468, 473, 300 S.E.2d 899, 902 (1983) (employee\u2019s death arose out of his employment where he was working at the time of the shooting, the shooting occurred on the employer\u2019s premises, and the shooting was caused by an argument between two co-employees); but see Gallimore, 292 N.C. at 404-05, 233 S.E.2d at 533 (employee\u2019s assault and death did not arise out of her employment where employee had completed work at a store in a mall, was not carrying any work materials, and was assaulted in the mall parking lot).\nThe full Commission found that Ms. D\u2019Aquisto was at an \u201cincreased risk\u201d for an assault not because of the nature of her job, but because her job duties required her to walk to areas of the hospital where there were \u201cfew, if any, people in her vicinity.\u201d Nonetheless, Defendants argue that no competent evidence supported the full Commission\u2019s finding of fact number twenty-six that Ms. D\u2019Aquisto\u2019s work takes her to areas of the hospital where there are few people. Finding of fact twenty-six states:\n***\n26. Regardless of whether or not Mr. Greene was plaintiff\u2019s assailant, the Full Commission finds that a man wearing scrubs at Mission had the appearance of a legitimate business purpose in being there. Although the majority of plaintiff\u2019s work did occur at her desk, her job duties required her to carry business records to the morgue on a regular basis, causing her to be present in areas of the hospital with few, if any, people in her vicinity. Thus, the Full Commission finds that plaintiff was as an increased risk of being exposed to an assailant not by virtue of her job as a cancer analyst, but rather because of where her job duties took her \u2014 the morgue and other such places with few, if any, people in her vicinity.\nWe, however, find that the record on appeal shows competent evidence to support the finding that Ms. D\u2019Aquisto\u2019s job duties took her out of her office to other areas of the hospital. Indeed, Ms. D\u2019Aquisto testified that a part of her normal job duties required her to go to the morgue every Monday to verify causes of death. Her office was on the first floor and the morgue is on the second floor, causing her to have to either use a stairwell or wait for an elevator. The record shows that Ms. D\u2019Aquisto was assaulted in front of the staff elevators on the first floor, with no person visible to Ms. D\u2019Aquisto but the man who assaulted her. The staff elevators are at least \u201c[a] football field\u201d away from the main hospital lobby and behind the patient elevators. At approximately 7:15 a.m. when Ms. D\u2019Aquisto was waiting for the elevators the lights were still dim at the lobby entrance. On the morning Ms. D\u2019Aquisto was assaulted, Mr. Ward testified that, \u201cAt that time, it wasn\u2019t too busy that morning[.]\u201d\nAs Plaintiff \u201cis entitled to the benefit of every reasonable inference to be drawn from the evidence[,]\u201d Deese, 352 N.C. at 115, 530 S.E.2d at 553, this evidence supports the full Commission\u2019s finding that on the morning of 30 April 2001, Ms. D\u2019Aquisto\u2019s job duties took her to an area of the hospital where there were few other people around. Moreover, the record shows competent evidence to support finding that Ms. D\u2019Aquisto was at an \u201cincreased risk,\u201d assaulted inside the hospital, carrying business records at the time, and by a man wearing scrubs who appeared to have legitimate business at the hospital. Accordingly, we hold that the full Commission properly concluded that the assault \u201carose out of\u2019 her employment. See Wake County Hosp. Sys., Inc., 127 N.C. App. at 39, 487 S.E.2d at 792.\nSecond, Defendants argue that the full Commission erred in impermissibly disregarding competent evidence as to whether the assault on Ms. D\u2019Aquisto actually occurred and as to Ms. D\u2019Aquisto\u2019s credibility and demeanor. Determining credibility of witnesses is the responsibility of the full Commission, not this Court. Adams, 349 N.C. at 681, 509 S.E.2d at 413. This Court does not re-weigh the evidence. Id., 509 S.E.2d at 414. Furthermore, \u201cthe Commission does not have to explain its findings of fact by attempting to distinguish which evidence or witnesses it finds credible.\u201d Deese, 352 N.C. at 116, 530 S.E.2d at 553. Thus, we hold that this argument is without merit.\nThird, Defendants argue that a portion of finding of fact number forty-five mischaracterizes Dr. Coleman\u2019s testimony and is not supported by competent evidence. Finding of fact forty-five, in pertinent part, states:\n***\n45. ... However, when presented with the actual findings of fact, including the eyewitness testimony of A.J. Ward, Dr. Coleman admitted that the attack could not have been a dissociative episode.\n***\nDr. Coleman testified as follows:\nQ: My question is, if that\u2019s true \u2014 if, for example, A. J. Ward, who\u2019s an employee, says they fell out into my arms and the guy ran away and he was reaching toward her breasts, that\u2019s not a dissociative episode, that\u2019s a physical act, isn\u2019t it?\nA: Your description of it is a physical act. That\u2019s absolutely true.\nQ: And if that were true, if a judge has said that is what happened, that would not be a dissociative episode.\nA: That part of it, no.\n***\nQ: . . . But if those are the facts as testified by Ms. D\u2019Aquisto and Mr. A. J. Ward, who now you\u2019ve got a third person who was either engaged in a dissociative episode with her\u2014\nA: No. You have someone that saw part of her story.\nMr. Ward testified that Ms. D\u2019Aquisto came out of the stairwell with a man behind her \u201c[a]nd it seemed like he was over the top of her trying to \u2014 trying to grab her again[.]\u201d Ms. D\u2019Aquisto fell into his arms and the man ran away. Dr. Coleman testified that since there was an eyewitness, at least the portion of the assault \u2014 Ms. D\u2019Aquisto coming out of a stairwell with a man trying to grab her from behind \u2014 could not have been a dissociative episode.\nWe hold that the full Commission did not mischaracterize Dr. Coleman\u2019s testimony. Although the full Commission afforded less weight to Dr. Coleman\u2019s testimony, determining credibility of witnesses is the responsibility of the full Commission, not this Court. Adams, 349 N.C. at 681, 509 S.E.2d at 413.\nNext, Defendants argue that the findings of facts concerning its investigation and defense are not supported by competent evidence and that the full Commission erred by imposing sanctions against Defendants under section 97-88.1 of the North Carolina General Statutes. We disagree.\nThe Industrial Commission may assess costs and attorney\u2019s fees if it determines that \u201cany hearing has been brought, prosecuted, or defended without reasonable ground[.]\u201d N.C. Gen. Stat. \u00a7 97-88.1 (2004). \u201cThe decision of whether to make such an award, and the amount of the award, is in the discretion of the Commission, and its award or denial of an award will not be disturbed absent an abuse of discretion.\u201d Troutman v. White & Simpson, Inc., 121 N.C. App. 48, 54-55, 464 S.E.2d 481, 486 (1995), disc. review denied, 343 N.C. 516, 472 S.E.2d 26 (1996). An abuse of discretion results only where a decision is \u201c \u2018manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.\u2019 \u201d Long v. Harris, 137 N.C. App. 461, 465, 528 S.E.2d 633, 635 (2000) (quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)). \u201cIn determining whether a hearing has been defended without reasonable ground, the Commission (and a reviewing court) must look to the evidence introduced at the hearing. \u2018The test is not whether the defense prevails, but whether it is based in reason rather than in stubborn, unfounded litigiousness.\u2019 \u201d Cooke v. P.H. Glatfelter/Ecusta, 130 N.C. App. 220, 225, 502 S.E.2d 419, 422-23 (1998) (quoting Sparks v. Mountain Breeze Rest., 55 N.C. App. 663, 665, 286 S.E.2d 575, 576 (1982)). Defendants argue that they had reasonable ground to defend themselves as there were \u201cdoubts about the relationship between Plaintiff\u2019s injuries and her story of an assault on April 30 (sic) . . . .\u201d (Def. Br. 33).\nDefendants contest the following findings of fact related to the award of costs and attorney\u2019s fees:\n46. Defendants presented no witnesses at hearing before the Deputy Commissioner, and offered only one exhibit (plaintiff\u2019s job evaluation) in the three days of hearings. All of the witnesses offered by plaintiff, and their statements, were readily available to defendants to consider in their investigation and subsequent denial of this matter. Most of the 21 documentary exhibits entered into evidence by plaintiff were readily available to defendants for investigation, if one had been properly undertaken. When asked by the Deputy Commissioner why he was defending this case, counsel replied, \u201cWe don\u2019t know what happened.\u201d\n47. Defendants possessed documents that confirmed plaintiff accounts of the attack, which they refused to make available to the plaintiff. She was required to file a Motion to Compel to obtain such documents.\n***\n49. As a result of defendants\u2019 failure to perform a reasonable investigation of this matter, and based upon defendants\u2019 refusal to admit plaintiff was even assaulted, despite eyewitness testimony, plaintiff was required to prosecute a three day hearing, presenting at least ten witnesses and twenty-one exhibits. Thus, the Full Commission finds defendants\u2019 defense of this matter was based on stubborn, unfounded litigiousness.\n50. As a result of defendants unreasonable and unjustified defense \u00f3f his (sic) matter, and their pattern and practice of unreasonable defense and bad faith, the Full Commission finds that an award of twenty-five percent (25%) of the total indemnity benefits recovered is reasonable.\nThe record indicates that Defendants presented no witnesses at the hearing before the Deputy Commissioner. But the record does show that Defendants issued a subpoena for Mr. Greene and had it delivered to the sheriff. The transcripts from Mr. Greene\u2019s criminal trials were entered into the record. The record shows that the Deputy Commissioner admitted seven exhibits offered by Defendants, not one as finding of fact number forty-six indicates. Also Defendants\u2019 counsel did state that Defendants did not know what happened as they questioned Ms. D\u2019Aquisto\u2019s credibility. Despite the mistake regarding the number of exhibits submitted by Defendants, there is competent evidence to support the remainder of finding of fact forty-six.\nThe record shows that there is competent evidence to support finding of fact forty-seven. On 14 October 2002, the Deputy Commissioner filed an Order for Production of Documents. The order stated that it \u201cnow appealed] defendants [had] failed to comply with the standing bench order to produce the Risk Management records and file[.]\u201d There is also evidence in the record to support the finding that Defendants failed to perform a reasonable investigation causing the hearing to last three-days and depose six other witnesses. At the hearing, the Deputy Commissioner stated that:\nMe. Takleton: I\u2019ve been practicing before [the Industrial Commission] for twenty years and I\u2019ve never had [a motion for discovery] allowed.\nThe Court: Have you ever asked me?\nMr. Tarleton: No, sir, I have not.\nThe Court: ... Mr. Ramer [Plaintiff\u2019s counsel] had to file Motions with me just for me to order you to turn over some documents. Then I had come up (sic) and do an in-camera inspection of things that didn\u2019t make any difference anyway. Then you attacked the Constitution of the United States on the due-process clause.\nMr. Tarleton: Well, I certainly am not attacking the Constitution of the United States. I am invoking the Constitution of the United States.\nThe Court: I\u2019ll use the word \u201cinvoking\u201d the Constitution of the' United States. Then you say here today almost, \u201cWe don\u2019t think we should turn over things because is (sic) no discovery.\u201d And we\u2019ve been discovering in \u2014 in workers\u2019 comp cases the history of the Industrial Commission. People do that all the time.\nMr. Tarleton: You\u2019ve \u2014 you\u2019ve experienced a different history than I have. I can tell you that.\nThe Court: You don\u2019t do any discovery in your workers\u2019 comp case?\nMr. Tarleton: I do my best and \u2014 and I\u2019ve given up trying to ask for leave to depose a plaintiff. I\u2019ll never get that. I can assure you of that. . . .\nThis exchange indicates that Defendants\u2019 counsel inhibited discovery and failed properly to investigate by not even making a motion for discovery, due to his anticipation of its being denied. Therefore, there is competent evidence to support findings of fact forty-nine and fifty. As there was competent evidence to support the findings of fact, the full Commission did not abuse its discretion in awarding costs and attorney\u2019s fees, as the findings were not manifestly unsupported by reason. Troutman, 121 N.C. App. at 54-55, 464 S.E.2d at 486.\nNext, Defendants argue that the full Commission impermissibly placed on them the burden to prove that Ms. D\u2019Aquisto had not been assaulted. The plaintiff has the burden of proving that the claim is compensable, which includes proving that the accident occurred. Henry v. A. G. Lawrence Leather Co., 231 N.C. 477, 479, 57 S.E.2d 760, 761 (1950). Defendants reference multiple pages in the hearing transcript before the Deputy Commissioner for support of their contention, however, they fail to cite any part of the full Commission\u2019s Opinion and Award that demonstrates the full Commission impermissibly shifted the burden of proof. We have carefully reviewed the entire record and find nothing to indicate that either the Deputy Commissioner or the full Commission improperly placed a burden of proof on Defendants. In fact when discussing Defendants\u2019 theory that no assault actually occurred, Defendant\u2019s counsel stated, \u201cI don\u2019t believe I have the burden to prove that scenario.\u201d The Deputy Commissioner responded, \u201cI agree.\u201d The Deputy Commissioner understood that Ms. D\u2019Aquisto had the burden to prove all elements of compensability. We find no error.\nNext, Defendants contend that the full Commission applied the incorrect standard of proof by using the appellate review standard of \u201cany competent evidence.\u201d Defendants argue that this is evident in the full Commission accepting evidence favorable to Ms. D\u2019Aquisto and discounting evidence in favor of them. This is not a standard of proof, but a credibility determination which is solely the responsibility of the full Commission. Adams, 349 N.C. at 681, 509 S.E.2d at 413. Furthermore, \u201cthe Commission does not have to explain its findings of fact by attempting to distinguish which evidence or witnesses it finds credible.\u201d Deese, 352 N.C. at 116, 530 S.E.2d at 553. We find this argument to be without merit.\nNext, Defendants argue that the full Commission\u2019s adoption of portions of Ms. D\u2019Aquisto\u2019s proposed opinion and award is a failure to properly weigh the evidence. Since Defendants failed to cite any authority to support this argument, it is deemed abandoned. N.C. R. App. P. 28(b)(6).\nFinally, Defendants contend that Rule 601 of the Workers\u2019 Compensation Rules impermissibly shifts the burden of proof and denied them due process. We disagree.\nRule 601 of the Workers\u2019 Compensation Rules provides in pertinent part:\nThe detailed statement of the basis of denial shall set forth a statement of the facts, as alleged by the employer, concerning the injury or any other matter in dispute; a statement identifying the source, by name or date and type of document, of the facts alleged by the employer; and a statement explaining why the facts, as alleged by the employer, do not entitle the employee to workers\u2019 compensation benefits.\nDefendants argue that \u201cRule 601\u2019s requirement of an employer to come forward with any evidence to rebut a plaintiff\u2019s claim effectively shifts the burden of proof to the employer at the outset of a claim and deprives the employer of procedural due process.\u201d (Def. Br. 30).\nThe General Assembly has specifically vested the North Carolina Industrial Commission with the ability to make rules governing Workers\u2019 Compensation cases. N.C. Gen. Stat. \u00a7 97-80 (2004) (\u201cThe Commission may make rules, not inconsistent with this Article, for carrying out the provisions of this Article.\u201d). Furthermore,\n[t]he North Carolina Industrial Commission has the power not only to make rules governing its administration of the act, but also to construe and apply such rules. Its construction and application of its rules, duly made and promulgated, in proceedings pending before the said Commission, ordinarily are final and conclusive and not subject to review by the courts of this State, on an appeal from an award made by said Industrial Commission.\nWinslow v. Carolina Conference Ass\u2019n of Seventh Day Adventists, 211 N.C. 571, 579-80, 191 S.E. 403, 408 (1937). Rule 601 was duly made and promulgated and therefore is presumed valid. Defendants make no specific arguments as to how Rule 601 denies them procedural due process nor do they cite any authority. We find this argument to be without merit, as Rule 601 was properly enacted.\nAccordingly, we find no error by the full Commission and affirm the Opinion and Award.\nAffirmed.\nChief Judge MARTIN and Judge McGEE concur.\n. A sitter is privately hired by the patient and/or patient\u2019s family to sit in the hospital room with the patient. The family hired Mr. Greene through Diversified Personnel. Mr. Greene was not an employee of Mission Health System.\n. The standard of review for this Court in reviewing an appeal from the full Commission is limited to determining \u201cwhether any competent evidence supports the Commission\u2019s findings of fact and whether the findings of fact support the Commission\u2019s conclusions of law.\u201d Deese v. Champion Int\u2019l Corp., 362 N.C. 109, 116, 530 S.E.2d 649, 563 (2000). Our review \u201c \u2018goes no further than to determine whether the record contains any evidence tending to support the finding.\u2019 \u201d Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (citation omitted). The full Commission\u2019s findings of fact \u201care conclusive on appeal when supported by competent evidence,\u201d even if there is evidence to support a contrary finding, Morrison v. Burlington Indus., 304 N.C. 1, 6, 282 S.E.2d 458, 463 (1981), and may be set aside on appeal only \u201cwhen there is a complete lack of competent evidence to support them[.]\u201d Young v. Hickory Bus. Furniture, 353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000). It is not the job of this Court to re-weigh the evidence. Adams, 349 N.C. at 681, 509 S.E.2d at 414. Further, all evidence must be taken in the light most favorable to the plaintiff, and the plaintiff \u201cis entitled to the benefit of every reasonable inference to be drawn from the evidence.\u201d Deese, 352 N.C. at 115, 530 S.E.2d at 553.\n. We note that Plaintiff-Appellee\u2019s brief exceeded the page limitations for briefs filed in the North Carolina Court of Appeals. N.C. R. App. P. 28Q) (thirty-five page limit). Therefore, we do not consider that portion of the brief which exceeds the page limitation.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Ganly & Ramer, RL.L.C., by Thomas F. Ramer, for plaintiff - appellee.", "Van Winkle, Buck, Wall, Starnes & Davis, P.A., by Allan R. Tarleion, for defendants-appellants." ], "corrections": "", "head_matter": "CAROLINE D\u2019AQUISTO, Plaintiff v. MISSION ST. JOSEPH\u2019S HEALTH SYSTEM, Employer, CAMBRIDGE INTEGRATED SERVICES, Servicing Agent, Defendants\nNo. COA04-1259\n(Filed 5 July 2005)\n1. Workers\u2019 Compensation\u2014 assault at work \u2014 arising from employment\nThe Industrial Commission properly concluded in a workers\u2019 compensation case that an assault arose out of plaintiff\u2019s employment as a cancer analyst at a hospital.\n2. Workers\u2019 Compensation\u2014 credibility \u2014 responsibility of Commission\nDetermining credibility in a workers\u2019 compensation case is the responsibility of the Industrial Commission, not the appellate court, which does not reweigh the evidence. Furthermore, the Commission does not have to explain its findings by attempting to distinguish the evidence or witnesses it finds credible.\n3. Workers\u2019 Compensation\u2014 characterization and weight of testimony \u2014 Commission\u2019s responsibility\nThe Industrial Commission in a workers\u2019 compensation case did not mischaracterize certain testimony, although it did give less weight to the testimony. Determining credibility is the Commission\u2019s responsibility.\n4. Workers\u2019 Compensation\u2014 sanctions \u2014 investigation and defense of claim\nThere was competent evidence to support the Industrial Commission\u2019s findings of fact regarding defendant\u2019s investigation and defense of a workers\u2019 compensation case and the Commission\u2019s imposition of sanctions under N.C.G.S. \u00a7 97-88.1.\n5. Workers\u2019 Compensation\u2014 shifting burden of proof \u2014 no citation to opinion of Full Commission\nThe Industrial Commission did not place the burden of proof on defendants in a workers\u2019 compensation case. Although defendants cited pages from the transcript of the hearing before the Deputy Commissioner, they did not cite anything in the full Commission\u2019s opinion and award to demonstrate that it shifted the burden of proof.\n6. Workers\u2019 Compensation\u2014 acceptance of evidence \u2014 credibility determination \u2014 responsibility of Commission\nThe acceptance of evidence by the Industrial Commission in a workers\u2019 compensation case, and the discounting of other evidence, was a credibility determination rather than the application of a standard of proof, and lies solely with the Commission. Furthermore, the Commission does not have to explain its findings by distinguishing the evidence it does or does not find credible.\n7. Workers\u2019 Compensation\u2014 burden of proof \u2014 Commission rule-making authority\nRule 601 of the Workers\u2019 Compensation Rules does not impermissibly shift the burden of proof and deny defendants\u2019 due process. The General Assembly has specifically vested the Industrial Commission with the ability to make rules governing Workers\u2019 Compensation cases. Defendants neither made arguments nor cited authority for denial of due process.\nAppeal by Defendants from Opinion and Award entered 20 May 2004 by the North Carolina Industrial Commission. Heard in the Court of Appeals 6 June 2005.\nGanly & Ramer, RL.L.C., by Thomas F. Ramer, for plaintiff - appellee.\nVan Winkle, Buck, Wall, Starnes & Davis, P.A., by Allan R. Tarleion, for defendants-appellants." }, "file_name": "0216-01", "first_page_order": 246, "last_page_order": 260 }