{ "id": 4104615, "name": "CYNTHIA MINTZ, Employee Plaintiff v. VERIZON WIRELESS, Employer, AMERICAN INSURANCE GROUP PLAN, INC., Carrier (SEDGWICK CMS, Third-Party Administrator), Defendants", "name_abbreviation": "Mintz v. Verizon Wireless", "decision_date": "2012-11-20", "docket_number": "No. COA12-306", "first_page": "433", "last_page": "442", "citations": [ { "type": "official", "cite": "223 N.C. App. 433" } ], "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": "659 S.E.2d 435", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640718 ], "year": 2008, "pin_cites": [ { "parenthetical": "internal quotation marks and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/659/0435-01" ] }, { "cite": "362 N.C. 233", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12640716, 12640717, 12640718, 12640719 ], "year": 2008, "pin_cites": [ { "parenthetical": "internal quotation marks and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/659/0433-02", "/se2d/659/0434-01", "/se2d/659/0435-01", "/se2d/659/0436-01" ] }, { "cite": "654 S.E.2d 254", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640028 ], "year": 2007, "pin_cites": [ { "page": "258" } ], "opinion_index": 0, "case_paths": [ "/se2d/654/0254-01" ] }, { "cite": "578 S.E.2d 669", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "676", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 228", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9185835 ], "year": 2003, "pin_cites": [ { "page": "237", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0228-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-88", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "610 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "opinion_index": 0 }, { "cite": "359 N.C. 403", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3797423 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0403-01" ] }, { "cite": "600 S.E.2d 501", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "506", "parenthetical": "Steelman, J., dissenting" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 811", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9000203 ], "year": 2004, "pin_cites": [ { "page": "818", "parenthetical": "Steelman, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0811-01" ] }, { "cite": "265 S.E.2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "391" } ], "opinion_index": 0 }, { "cite": "300 N.C. 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559969 ], "year": 1980, "pin_cites": [ { "page": "167" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0164-01" ] }, { "cite": "538 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "915", "parenthetical": "quoting Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980)" }, { "page": "916-17" } ], "opinion_index": 0 }, { "cite": "353 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135777 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "230", "parenthetical": "quoting Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980)" }, { "page": "233" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0227-01" ] }, { "cite": "38 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1946, "pin_cites": [ { "page": "99" } ], "opinion_index": 0 }, { "cite": "226 N.C. 325", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618886 ], "year": 1946, "pin_cites": [ { "page": "328" } ], "opinion_index": 0, "case_paths": [ "/nc/226/0325-01" ] }, { "cite": "310 S.E.2d 38", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "45" }, { "page": "45", "parenthetical": "concluding that \"[activities which are undertaken for the personal comfort of the employee are considered part of the 'circumstances' element of the course of employment.\"" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 457", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524723 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "468-69" }, { "page": "468-69" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0457-01" ] }, { "cite": "128 S.E.2d 570", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1962, "pin_cites": [ { "page": "574" } ], "opinion_index": 0 }, { "cite": "258 N.C. 226", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560169 ], "weight": 2, "year": 1962, "pin_cites": [ { "page": "232" } ], "opinion_index": 0, "case_paths": [ "/nc/258/0226-01" ] }, { "cite": "239 S.E.2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 731", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567203 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0731-01" ] }, { "cite": "162 S.E.2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1968, "pin_cites": [ { "page": "52" }, { "page": "52" }, { "page": "53", "parenthetical": "emphasis added" }, { "page": "53" }, { "page": "52" }, { "page": "52" } ], "opinion_index": 0 }, { "cite": "1 N.C. App. 448", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553835, 8553878 ], "weight": 5, "year": 1968, "pin_cites": [ { "page": "455" }, { "page": "455-56" }, { "page": "456" }, { "page": "456" }, { "page": "456" } ], "opinion_index": 0, "case_paths": [ "/nc-app/1/0448-01", "/nc-app/1/0448-02" ] }, { "cite": "188 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "354", "parenthetical": "internal quotations marks omitted" } ], "opinion_index": 0 }, { "cite": "281 N.C. 234", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574679 ], "year": 1972, "pin_cites": [ { "page": "239", "parenthetical": "internal quotations marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0234-01" ] }, { "cite": "187 N.C. App. 580", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8375343 ], "year": 2007, "pin_cites": [ { "page": "586" } ], "opinion_index": 0, "case_paths": [ "/nc-app/187/0580-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2011, "pin_cites": [ { "page": "(6)" } ], "opinion_index": 0 }, { "cite": "692 S.E.2d 170", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "pin_cites": [ { "page": "174" }, { "page": "174", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "203 N.C. App. 521", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4176138 ], "weight": 2, "year": 2010, "pin_cites": [ { "page": "525" }, { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/nc-app/203/0521-01" ] }, { "cite": "233 S.E.2d 529", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "531" }, { "page": "531" } ], "opinion_index": 0 }, { "cite": "292 N.C. 399", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569857 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "402" }, { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0399-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "414", "parenthetical": "quoting Gallimore v. Marilyn's Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977)" } ], "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "year": 1998, "pin_cites": [ { "page": "681", "parenthetical": "quoting Gallimore v. Marilyn's Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977)" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "144 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1965, "pin_cites": [ { "page": "274" }, { "page": "274" } ], "opinion_index": 0 }, { "cite": "265 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575582 ], "weight": 2, "year": 1965, "pin_cites": [ { "page": "434" }, { "page": "433-34" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0431-01" ] }, { "cite": "669 S.E.2d 582", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "page": "584", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "362 N.C. 657", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149368 ], "year": 2008, "pin_cites": [ { "page": "660", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0657-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-90", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(c)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 909, "char_count": 22831, "ocr_confidence": 0.738, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13138043955458406 }, "sha256": "04ed48abe8bc6dc568ab1f16f90b4ae0d9a5a064f346205468b6951784318098", "simhash": "1:3d4eec8b2c797a1e", "word_count": 3603 }, "last_updated": "2023-07-14T18:08:05.693184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and STEELMAN concur." ], "parties": [ "CYNTHIA MINTZ, Employee Plaintiff v. VERIZON WIRELESS, Employer, AMERICAN INSURANCE GROUP PLAN, INC., Carrier (SEDGWICK CMS, Third-Party Administrator), Defendants" ], "opinions": [ { "text": "HUNTER, Robert G, Judge.\nDefendant-employer Verizon Wireless (\u201cdefendant-employer\u201d) and defendant-carrier American Insurance Group Plan, Inc. (Sedgwick CMS, third-party administrator) (\u201ccollectively defendants\u201d) appeal from an opinion and award of the Full Commission of the North Carolina Industrial Commission (\u201cFull Commission\u201d) filed 7 October 2011. Defendants argue on appeal that the Full Commission erred by: (1) concluding plaintiff Cynthia Mintz (\u201cplaintiff\u2019) sustained an injury \u201carising out of\u201d and \u201cin the course of\u2019 her employment; (2) finding plaintiff\u2019s fall materially aggravated her underlying arthritis in her knee; and (3) awarding attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 '97-88. After careful review, we affirm the opinion and award.\nBackground\nPlaintiff is a 54-year-old woman who has been an employee of defendant-employer for six years as a customer care representative. She worked on the second floor of the building. At the time of the incident, defendant-employer did not own the building where plaintiff was injured. Todd Lee Swank (\u201cMr. Swank\u201d), plaintiff\u2019s supervisor, testified that, in addition to defendant-employer, there were several other businesses in the building including: (1) Strayer University, which only offered services to employees of defendant-employer; (2) Eurst, a cafeteria for defendant-employer\u2019s employees; (3) SOS Security, which provided security services to defendant-employer; (4) defendant-employer\u2019s mail room facility; and (5) in-house contractors that provided cleaning services. The general public did not have access to the building without permission and authorization from an employee\u2019s supervisor.\nOn 22 July 2009, plaintiff contends that during her hour-long unpaid lunch break, which defendant-employer required she take, she walked through the hallways on the first floor of the building for exercise. Plaintiff testified that \u201c[t]hey had a thing set up that you can walk in there through the hallways on the first floor[.]\u201d The hallways on the first floor were a common area to which all employees had access. After she walked for 30 minutes, plaintiff went to the restroom on the first floor. As she was leaving the bathroom and walking toward the elevator to return to her cubicle, she slipped on a piece of ice from the ice-machine located outside the ladies\u2019 bathroom and fell on her knee.\nAfter the incident, plaintiff saw Dr. Robert Messina (\u201cDr. Messina\u201d) whom she had seen in the past for knee pain. Five years prior to this incident, plaintiff underwent knee surgery on the same knee on which she fell. On 29 July 2009, after plaintiffs fall, Dr. Messina diagnosed her with a left knee contusion. Plaintiff had numerous follow-up visits with Dr. Messina where she underwent steroid injections and was prescribed various medications for her ongoing knee issues. At his deposition on 28 September 2010, Dr. Messina stated that plaintiff\u2019s fall materially aggravated the arthritis in her knee.\nOn 12 August 2010, Deputy Commissioner Robert Harris heard the matter and filed an opinion and award on 8 March 2011 concluding that plaintiff suffered a compensable injury and awarding plaintiff indemnity benefits, medical compensation, and $4770 in attorney\u2019s fees, assessed in a separate order, pursuant to N.C. Gen. Stat. \u00a7 97-90(c). Defendants appealed Deputy Commissioner Harris\u2019s opinion and award on 23 March 2011 and appealed his separate order assessing attorney\u2019s fees on 31 March 2011. On 11 August 2011, the Full Commission heard the matter. After reviewing the evidence, the Full Commission filed its opinion and award on 7 October 2011 (\u201cFull Commission\u2019s opinion\u201d). Specific findings of fact and conclusions of law will be addressed as needed as they relate to defendants\u2019 arguments on appeal.\nArguments\nReview of an opinion and award of the Industrial Commission \u201cis limited to consideration of whether competent evidence supports the Commission\u2019s findings of fact and whether the findings support the Commission\u2019s conclusions of law. This \u2018court\u2019s duty goes no further than to determine whether the record contains any evidence tending to support the finding.\u2019 \u201d Richardson v. Maxim Healthcare/Allegis Group, 362 N.C. 657, 660, 669 S.E.2d 582, 584 (2008) (citation omitted) (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)). \u201cThe findings of fact by the Industrial Commission are conclusive on appeal if supported by any competent evidence.\u201d Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (quoting Gallimore v. Marilyn\u2019s Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977)). \u201cThe Commission\u2019s conclusions of law are, however, reviewed de novo.\" Gray v. RDU Airport Auth., 203 N.C. App. 521, 525, 692 S.E.2d 170, 174 (2010).\nI. Injury \u201cArising Out Of\u2019 and \u201cIn The Course of\u2019 Employment\nUnder the Workers\u2019 Compensation Act, a plaintiff is entitled to compensation for an injury \u201conly if (1) it is caused by an accident, and (2) the accident arises out of and in the course of employment.\u201d Gray, 203 N.C. App. at 525, 692 S.E.2d at 174 (internal quotation marks omitted); see also N.C. Gen. Stat. \u00a7 97-2(6) (2011). \u201cThe phrases \u2018arising out of\u2019 and \u2018in the course of\u2019 one\u2019s employment are not synonymous but rather are two separate and distinct elements both of which a claimant must prove to bring a case within the Act.\u201d Gallimore, 292 N.C. at 402, 233 S.E.2d at 531.\nA. \u201cArising Out Of\u201d Plaintiff\u2019s Employment\nDefendants argue that the Full Commission\u2019s conclusions of law nos. 2 and 3 were erroneous because plaintiff was injured on an unpaid lunch break, plaintiff\u2019s employment was not a contributing proximate cause of the accident, and \u201c[n]othing about [p]laintiff\u2019s job duties placed her at a greater risk than the general public of slipping on ice or water.\u201d We are not persuaded.\n\u201c \u2018Arising out of\u2019 the employment is construed to require that the injury be incurred because of a condition or risk created by the job. In other words, [t]he basic question [to answer when examining the arising out of requirement] is whether the employment was a contributing cause of the injury.\u201d Billings v. Gen. Parts, Inc., 187 N.C. App. 580, 586, 654 S.E.2d 254, 258 (2007) writ denied and review denied, 362 N.C. 233, 659 S.E.2d 435 (2008) (internal quotation marks and citations omitted). Our Supreme Court has held that, generally, \u201can injury arises out of the employment when it is a natural and probable consequence or incident of the employment and a natural result of one of its risks, so that there is some causal relation between the injury and the performance of some service of the employment.\u201d Robbins v. Nicholson, 281 N.C. 234, 239, 188 S.E.2d 350, 354 (1972) (internal quotations marks omitted). \u201cWhen an injury cannot fairly be traced to the employment as a contributing proximate cause, or if it comes from a hazard to which the employee would have been equally exposed apart from the employment, or from the hazard common to others, it does not arise out of the employment.\u201d Harless v. Flynn, 1 N.C. App. 448, 455, 162 S.E.2d 47, 52 (1968).\nBased on the record of evidence, the Full Commission found, in pertinent part, that \u201c[m]embers of the general public were not allowed in the building. Only those with a security badge or who were on a guest list approved by [d]efendant-[e]mployer could enter the building.\u201d This finding was supported by competent evidence in the record, the testimony of Mr. Swank. Thus, it is conclusive on appeal.\nBased on this finding, the Full Commission concluded that plaintiffs injury was \u201cincidental to her employment\u201d since she would not be \u201cequally exposed,\u201d as defendants contend, to the risk of slipping had she not been employed by defendant-employer. We find that there is a causal relationship between plaintiffs employment and her injury because she incurred her injury based on a condition in her workplace. Plaintiff was injured in a common area of the building, and the record indicates that employees were not only authorized but also encouraged to go to the first floor since Eurst, the cafeteria for employees, was located there, and employees had authorization to walk through the hallways on the first floor. Thus, we affirm the Full Commission\u2019s conclusion that plaintiff\u2019s injury \u201carose out of\u201d her employment.\nB. \u201cIn the Course of\u2019 Employment\nNext, defendants argue that plaintiff\u2019s injury did not occur \u201cin the course of\u2019 her employment because plaintiff failed to meet the three elements of time, place, and circumstances. Specifically, defendants contend that: (1) plaintiff\u2019s injury did not occur at a time reasonably related to her employment since she was on an unpaid lunch break; (2) defendant-employer did not control or own the building where defendant was injured; and (3) plaintiff was not engaged in activities related to her employment. We disagree.\nWith regard to determining whether an injury occurs \u201cin the course of\u2019 employment, this Court has concluded that\nThe words [i]n the course of have reference to the time, place and circumstances under which the accident occurred. Clearly, a conclusion that the injury occurred in the course of employment is required where there is evidence that it occurred during the hours of employment and at the place of employment while the claimant was actually in the performance of the duties of the employment.\nHarless, 1 N.C. App. at 455-56, 162 S.E.2d at 52. With regard to the time element, \u201cthe course of employment begins a reasonable time before actual work begins and continues for a reasonable time after work ends and includes intervals during the work day for rest and refreshment.\u201d Id. at 456, 162 S.E.2d at 53 (emphasis added). Defendants allege that this element is not met because plaintiff was on an unpaid lunch break.\nThe Full Commission determined that plaintiff\u2019s injury occurred during a time in her work day \u201cbuilt in for the employees\u2019 rest and refreshment.\u201d Moreover, the Full Commission noted that defendant-employer requires its employees to take an hour-long lunch break. While defendants focus on the fact that plaintiff was injured during an unpaid break to support their argument that the injury did not occur at a time reasonably related to her employment, we have no support in our caselaw for the proposition that the element of time is not established if an employee is on an unpaid break. Here, plaintiff\u2019s injury occurred during the hours of employment, even though it happened during an unpaid break. Thus, the Full Commission\u2019s conclusion accurately reflects that \u201cin the course of\u2019 includes times during the workday for rest and refreshment. See Harless, 1 N.C. App. at 456, 162 S.E.2d at 53. Therefore, we affirm the Full Commission\u2019s conclusion of law with regard to the element of time.\nWith regard to the element of place, defendants contend that the Full Commission\u2019s conclusion of law no. 5 was erroneous. Moreover, defendants allege that findings of fact nos. 4-8, to the extent they infer defendant-employer maintained or controlled the building, were not supported by competent evidence.\nPlace is considered the \u201cpremises of the employer.\u201d Harless, 1 N.C. App. at 456, 162 S.E.2d at 52. While the Full Commission noted in its findings that defendant-employer no longer owned the building where plaintiff worked, it indicated that \u201c[d]efendant-[e]mployer continued to be the main tenant in the building and maintained and controlled all activities occurring in the building.\u201d These findings were supported by competent evidence in the record that established all other contractors in the building, including the cleaning contractors, mail room, security, and Eurst, provided services to defendant-employer. Moreover, the only other business, Strayer University, offered services exclusively to employees of defendant-employer.\nBased on these findings, the Full Commission concluded that because \u201can accident may be compensable if it occurs on the premises of the employer or adjacent premises that are owned or controlled by the employer[,]\u201d the element of place was met because defendant-employer \u201cstill essentially controlled the building, including the common area in which [p]laintiff fell.\u201d In support of its conclusion, the Full Commission cited Strickland v. King, 293 N.C. 731, 239 S.E.2d 243 (1977), and Bass v. Mecklenburg County, 258 N.C. 226, 128 S.E.2d 570 (1962). In Bass, our Supreme Court noted that \u201cinjuries sustained by an employee while going to or from his place of work upon premises owned or controlled by his employer are generally deemed to have arisen out of and in the course of the employment . . . provided the employee\u2019s act involves no unreasonable delay.\u201d 258 N.C. at 232, 128 S.E.2d at 574. Here, there was competent evidence that plaintiff was injured on premises essentially controlled by defendant-employer while she was returning to her cubicle from the first floor of the building during her lunch break. Thus, the conclusion that the element of place was met is justified, and defendants\u2019 argument is without merit.\nWith regard to the circumstances element, when an employee \u201cis engaged in activity which he is authorized to undertake and which is calculated to further, [d]irectly or indirectly the employer\u2019s business, the circumstances are such as to be within the course of employment.\u201d Harless, 1 N.C. App. at 456, 162 S.E.2d at 52. Moreover, \u201c[a]ctivities which are undertaken for the personal comfort of the employee are considered part of the \u2018circumstances\u2019 element of the course of employment.\u201d Spratt v. Duke Power Co., 65 N.C. App. 457, 468-69, 310 S.E.2d 38, 45 (1983).\nThe Full Commission concluded that \u201c[a]n employee tending to her personal needs is indirectly benefiting the employerf,]\u201d and \u201cit was in [d]efendant-[e]mployer\u2019s interest that [pjlaintiff be rested and refreshed so she could provide pleasant and effective customer service, and the activity in which [p]laintiff was engaging when she fell thus indirectly benefited [d]efendant-[e]mployer.\u201d Therefore, plaintiff\u2019s lunch break was within the course of her employment.\nHere, plaintiff was injured while returning to her cubicle after engaging in an activity she undertook for her personal comfort. The present case is similar to those cases where our Courts have recognized the personal comfort doctrine and found that employees engaging in activities for health and comfort constitute circumstances in the course of the employment. See generally Rewis v. New York Life Ins. Co., 226 N.C. 325, 328, 38 S.E.2d 97, 99 (1946) (noting that \u201c[a]n employee, while about his employer\u2019s business, may do those things which are necessary to his own health and comfort, even though personal to himself, and such acts are regarded as incidental to the employment\u201d and concluding that the employee\u2019s act of visiting the restroom and seeking comfort by the open window was in the course of his employment); Spratt, 65 N.C. App. at 468-69, 310 S.E.2d at 45 (concluding that \u201c[activities which are undertaken for the personal comfort of the employee are considered part of the \u2018circumstances\u2019 element of the course of employment.\u201d). Moreover, we note that, with regard to the personal comfort doctrine, Larson\u2019s treatise on workers\u2019 compensation specifically states that:\n[i]njuries occurring on the premises during a regular lunch hour arise in the course of employment, even though the interval is technically outside the regular hours of employment in the sense that the worker receives no pay for that time and is in no degree under the control of the employer, being free to go where he or she pleases.\nArthur Larson & Lex K. Larson, Larson\u2019s Workers\u2019 Compensation Law \u00a7 21.02[1][a] (2012) (hereinafter Larson\u2019s). We find Larson\u2019s explanation of the personal comfort doctrine persuasive and adopt its reasoning. If an employee is injured on premises owned or controlled by the employer on a lunch break, whether or not that break is paid, we hold that the circumstances are within \u201cthe course of\u2019 employment. Thus, defendants\u2019 argument is without merit.\nII. Material Aggravation\nNext, defendants argue that the Full Commission\u2019s findings of fact that plaintiff\u2019s fall materially aggravated the arthritic condition in her knee were not supported by the \u201coverall testimony\u201d because Dr. Messina\u2019s assumption that plaintiff was asymptomatic prior to her fall was contradicted by evidence. Specifically, defendants contend that Dr. Messina\u2019s medical opinion was based on conjecture and speculation and was, therefore, incompetent. We disagree.\n\u201cThe Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.\u201d Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965). Our Supreme Court has held that \u201cwhere the exact nature and probable genesis of a particular type of injury involves complicated medical questions far removed from the ordinary experience and knowledge of laymen, only an expert can\u2018give competent opinion evidence as to the cause of the injury.\u201d Young v. Hickory Business Furniture, 353 N.C. 227, 230, 538 S.E.2d 912, 915 (2000) (quoting Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980)).\nIn the present case, the Full Commission found that Dr. Messina testified with a reasonable degree of medical certainty that plaintiffs fall \u201cmaterially aggravated [p]laintiff\u2019s underlying left knee arthritic condition.\u201d Furthermore, the Full Commission noted that \u201cDr. Messina held this opinion regardless of whether [p]laintiff had intermittent flare-ups in her left knee between 2005 and 2009.\u201d Accordingly, the Full Commission concluded that \u201c[b]ased on a preponderance of the evidence, [pjlaintiff has shown that her ongoing left knee condition is causally related to her compensable July 22, 2009 injury.\u201d\nThe Full Commission\u2019s finding of causation was supported by competent evidence. At his deposition, Dr. Messina testified that he concluded, with a reasonable degree of medical probability, that plaintiff\u2019s fall exacerbated the arthritis in her left knee. Dr. Messina also stated that the fact that plaintiff experienced intermittent knee pain in the time between her surgery and her fall \u201cwouldn\u2019t impact\u201d his opinion that \u201cthere was material aggravation.\u201d Here, Dr. Messina stated his opinion unequivocally with a reasonable degree of medical certainty; thus, this testimony is what distinguishes this case from those where our Courts have held that the finding of causation was based on incompetent evidence. See Young, 353 N.C. at 233, 538 S.E.2d at 916-17, (holding that because the medical expert\u2019s testimony \u201cconsists of comments and responses demonstrating his inability to express an opinion to any degree of medical certainty as to the cause of Ms. Young\u2019s illness,\u201d his opinion was incompetent and insufficient to support the Industrial Commission\u2019s finding of causation); Edmonds v. Fresenius Medical Care, 165 N.C. App. 811, 818, 600 S.E.2d 501, 506 (2004) (Steelman, J., dissenting) (concluding that because the medical expert\u2019s testimony only established that the treatment for plaintiff\u2019s injury \u201cpossibly\u201d or \u201ccould or might\u201d have caused plaintiff\u2019s renal problems, \u201c[t]his testimony does not rise above a guess or mere speculation\u201d), rev\u2019d per curiam for reasons stated in the dissent, 359 N.C. 403, 610 S.E.2d 374 (2005).\nIII. Attorney\u2019s Fees\nFinally, defendants argue that the Full Commission\u2019s award of attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 97-88 was premature since attorney\u2019s fees would not be allowed if this Court concluded the Full Commission erred. \u201cThe Commission or a reviewing court may award an injured employee attorney\u2019s fees [u]nder section 97-88, ... if (1) the insurer has appealed a decision to the [F]ull Commission or to any court, and (2) on appeal, the Commission or court has ordered the insurer to make, or continue making, payments of benefits to the employee.\u201d Cox v. City of Winston Salem, 157 N.C. App. 228, 237, 578 S.E.2d 669, 676 (2003) (internal quotation marks omitted). Here, plaintiff was awarded attorney\u2019s fees through a proper application of N.C. Gen. Stat. \u00a7 97-88. Thus, since we are affirming the Full Commission\u2019s opinion, we affirm the award of attorney\u2019s fees.\nConclusion\nBecause we find the Full Commission\u2019s conclusions of law that plaintiff\u2019s injury \u201carose out of\u201d and \u201cin the course of\u201d her employment were justified and based on findings supported by competent evidence, we affirm the Full Commission\u2019s conclusions of law nos. 2-6. Moreover, since there was competent evidence supporting the finding that plaintiff\u2019s fall materially aggravated her arthritic condition, we affirm the Full Commission\u2019s finding of fact 19. Finally, we affirm the Full Commission\u2019s award of attorney\u2019s fees.\nAffirmed.\nJudges BRYANT and STEELMAN concur.", "type": "majority", "author": "HUNTER, Robert G, Judge." } ], "attorneys": [ "Greg Jones & Associates, P.A., by Cameron D. Simmons, for plaintiff", "Hedrick Gardner Kincheloe & Garofalo, L.L.P., by M. Duane Jones, Erica B. Lewis, and Lindsey L. Smith, for defendants." ], "corrections": "", "head_matter": "CYNTHIA MINTZ, Employee Plaintiff v. VERIZON WIRELESS, Employer, AMERICAN INSURANCE GROUP PLAN, INC., Carrier (SEDGWICK CMS, Third-Party Administrator), Defendants\nNo. COA12-306\n(Filed 20 November 2012)\n1. Workers\u2019 Compensation \u2014 injury arising out of employment\u2014 causal relationship\nThe Industrial Commission did not err in a workers\u2019 compensation case by concluding that plaintiff\u2019s injury arose out of her employment. There was a causal relationship between plaintiff\u2019s employment and her injury because she incurred her injury based on a condition in her workplace.\n2. Workers\u2019 Compensation \u2014 injury occurring in the course of employment \u2014 time, place, circumstances\nThe Industrial Commission did not err in a workers\u2019 compensation case by concluding that plaintiff\u2019s injury occurred \u201cin the course of\u2019 her employment. Plaintiff\u2019s injury occurred during the hours of employment, even though it happened during an unpaid break, and plaintiff was injured on premises essentially controlled by defendant-employer while returning to her cubicle after engaging in an activity she undertook for her personal comfort.\n3. Workers\u2019 Compensation \u2014 finding of fact \u2014 supported by material evidence\nThe Industrial Commission did not err in a workers\u2019 compensation case by finding that plaintiff\u2019s fall materially aggravated the arthritic condition in her knee. The finding was supported by the testimony of Dr. Messina, which was competent evidence.\n4. Attorney Fees \u2014 workers\u2019 compensation \u2014 properly awarded\nThe Industrial Commission did not err in awarding plaintiff attorney\u2019s fees through a proper application of N.C.G.S. \u00a7 97-88.\nAppeal by defendants from opinion and award entered 7 October 2011 by the North Carolina Industrial Commission. Heard in the Court of Appeals 29 August 2012.\nGreg Jones & Associates, P.A., by Cameron D. Simmons, for plaintiff\nHedrick Gardner Kincheloe & Garofalo, L.L.P., by M. Duane Jones, Erica B. Lewis, and Lindsey L. Smith, for defendants." }, "file_name": "0433-01", "first_page_order": 443, "last_page_order": 452 }