{
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  "name": "MARY GRAY, WIDOW OF DAVID GRAY, DECEASED, EMPLOYEE, Plaintiff v. UNITED PARCEL SERVICE, INC., EMPLOYER, and LIBERTY MUTUAL INSURANCE COMPANY, CARRIER, Defendants",
  "name_abbreviation": "Gray v. United Parcel Service, Inc.",
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    "judges": [
      "Judges CALABRIA and GEER concur."
    ],
    "parties": [
      "MARY GRAY, WIDOW OF DAVID GRAY, DECEASED, EMPLOYEE, Plaintiff v. UNITED PARCEL SERVICE, INC., EMPLOYER, and LIBERTY MUTUAL INSURANCE COMPANY, CARRIER, Defendants"
    ],
    "opinions": [
      {
        "text": "BRYANT, Judge.\nWhere competent evidence supports the findings of fact and where the findings of fact justify the conclusions of law, we affirm the opinion and award of the Industrial Commission, denying benefits to plaintiff under the Workers\u2019 Compensation Act.\nFacts and Procedural History\nOn 29 November 2001, David D. Gray was working at the United Parcel Service (\u201cUPS\u201d) hub in Greensboro, North Carolina. Charles Gregory McDaniel, a fellow employee of Mr. Gray, testified that as he was walking to his truck, he observed Mr. Gray standing in front of a row of trucks. McDaniel proceeded to get into his truck and began performing a safety check. As he was performing this check, McDaniel saw the brake lights and back-up lights of Mr. Gray\u2019s truck turn on.\nMcDaniel saw Mr. Gray\u2019s truck approaching his truck but did not see anyone in the cab of the truck. McDaniel blew his horn but the truck continued to back up until it struck McDaniel\u2019s truck. McDaniel jumped out and saw Mr. Gray lying on the ground. Mr. Gray was lying on his back, his glasses were three to four inches away from his head and they were flattened.\nAs McDaniel approached Mr. Gray, Mr. Gray attempted to get up and stated that he was cold. McDaniel turned off Mr. Gray\u2019s truck and then witnessed Mr. Gray attempt to get up again. McDaniel told Mr. Gray to lie still while he went to get help. Another witness to the incident, who was also an emergency medical technician, began assisting Mr. Gray. McDaniel testified that he heard Mr. Gray take his last breath and proceeded to perform CPR on Mr. Gray.\nMr. Gray was taken to Moses Cone Hospital where he was pronounced dead. Dr. John D. Butts, performed an autopsy on Mr. Gray and listed the cause of death as coronary atherosclerosis.\nOn 11 December 2001, UPS filed a Form 1A-1, \u201cWorkers Compensation - First Report of Injury or Illness,\u201d which reported that Mr. Gray \u201csuffered [a] heart attack while backing up [truck] and it rolled into another parked UPS [truck].\u201d On 15 January 2002, the North Carolina Industrial Commission filed a Form 61, \u201cDenial of Workers\u2019 Compensation Claim,\u201ddenyingtheclaim.Afteraninvestigation,theIndustrial Commission determined that \u201cthe cause of death was not the result of an injury by accident. The fatality did not arise out of or in the course and scope of employment. Nor is it listed as an occupational disease.\u201d\nOn 30 April 2002, plaintiff Mary Gray, widow of Mr. Gray, filed a Form 18, \u201cNotice of Accident to Employer and Claim of Employee, Representative, or Dependent,\u201d stating that Mr. Gray \u201cfell out of [his] truck striking his head which contributed to a heart attack resulting in his death.\u201d On 3 May 2007, plaintiff filed a Form 33, \u201cRequest that Claim be Assigned for Hearing.\u201d\nFollowing a hearing on 29 October 2008, the North Carolina Industrial Commission entered an Opinion and Award on 25 June 2009 awarding benefits to plaintiff. Defendants UPS and Liberty Mutual Insurance Company appealed to the Full Commission. On 10 March 2010, the Full Commission entered an Opinion and Award affirming the award of benefits to plaintiff. On 9 April 2010 defendants appealed to the North Carolina Court of Appeals.\nIn Gray v. UPS, _ N.C. App. _, _, 713 S.E.2d 126 (2011) (\u201cGray i\u201d), our Court reversed and remanded in part and affirmed in part, holding that the Industrial Commission erred in concluding that Mr. Gray\u2019s death was a compensable injury. Id. at _, 713 S.E.2d at 127-30. We held that the Pickrell presumption applied \u201cbased upon the fact that plaintiffs intestate died while in the course and scope of his employment, but it was not clear whether his death was the result of an injury by accident arising out of employment.\u201d Id. at__, 713 S.E.2d at 129. Because the presumption was rebutted by the testimony of defendants\u2019 expert witness, Dr. Barry Welbome, we held that \u201cthe Commission must consider the issue of compensability as if the presumption did not exist, with the plaintiff having the burden of proof of showing that the death was a result of an accident arising out of the course and scope of employment.\u201d Id.\nPlaintiff filed a petition for discretionary review and petition for writ of certiorari to the North Carolina Supreme Court on 26 July 2011 both of which were denied.\nOn 10 May 2012, the Full Commission entered an Opinion and Award, denying plaintiffs claim for benefits. From this Opinion and Award, plaintiff appeals.\nPlaintiff presents the following issues on appeal: whether the Full Commission erred (I) in concluding that Mr. Gray\u2019s injuries and resulting death were not compensable; (II) in concluding that Mr. Gray\u2019s heart attack and death were not the result of an accident arising out of or in the course of his employment; (III) in applying an incorrect medical causation standard; and (IV) in concluding that Dr. Charles Walker Harris, Jr.\u2019s testimony was speculative.\nStandard of Review\nOn appeal of cases from the Industrial Commission, our review is limited to two issues: Whether the Commission\u2019s findings of fact are supported by competent evidence and whether the Commission\u2019s conclusions of law are justified by its findings of fact. Because it is a fact-finding body, the Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony. The Commission\u2019s findings of fact are conclusive on appeal if they are supported by any competent evidence. Accordingly, this Court does not have the right to weigh the evidence and decide the issue on the basis of its weight. The court\u2019s duty goes no further than to determine whether the record contains any evidence tending to support the finding.\nShaw v. US Airways, Inc., _ N.C. App. _, _, 720 S.E.2d 688, 690 (2011) (citation omitted).\nI and II\nPlaintiff argues the trial court erred by denying her benefits under the Workers\u2019 Compensation Act. Specifically, plaintiff asserts that she has met her burden of proof by showing that Mr. Gray\u2019s death was the result of an accident arising out of the course and scope of his employment, and therefore, that his injury and resulting death were compensable.\nAt the outset, we note that plaintiff does not challenge any of the Full Commission\u2019s findings of fact or conclusions of law. Because plaintiff does not dispute the findings of fact, they are binding on appeal. See Coffey v. Weyerhaeuser Co., __ N.C. App. _, _, 720 S.E.2d 879, 881 (2012). Plaintiff does, however, argue that she has met her burden of persuasion by producing sufficient evidence to demonstrate that Mr. Gray\u2019s heart attack was the result of an accident arising out of his employment. In essence, plaintiff is asking our Court to re-weigh the evidence presented before the Full Commission and to assign greater weight to the evidence presented in plaintiff\u2019s favor. We reject this argument.\nFor purposes of our review, we do \u201cnot have the right to weigh the evidence and decide the issue on the basis of its weight.\u201d Shaw, N.C. App. at _, 720 S.E.2d at 690 (citation omitted). Because the findings are binding on appeal, our review is limited to whether the Commission\u2019s conclusions of law are justified by its findings.\n\u201cThe North Carolina Workers\u2019 Compensation Act [(the Act)] provides that an employee\u2019s death is compensable only when such death results from an injury \u2018arising out of\u2019 and \u2018in the course and scope of\u2019 his employment.\u201d Roman v. Southland Transp. Co., 350 N.C. 549, 551, 515 S.E.2d 214, 216 (1999) (citation omitted).\nSection 97-2(6) of the North Carolina General Statutes states the definition of injury under the [Act] and articulates the controlling rule in the case sub judice: \u201c \u2018Injury and personal injury\u2019 shall mean only injury by accident arising out of and in the course of the employment. ...\u201d N.C.G.S. \u00a7 97-2(6) (2005). \u201c\u2018Arising out of employment\u2019 refers to the manner in which the injury occurred, or the origin or cause of the accident.\u201d ... \u201cThus the injury must spring from the employment in order to be compensable under the Act.\u201d\nFrost v. Salter Path Fire & Rescue, 361 N.C. 181, 184-85, 639 S.E.2d 429, 432 (2007) (citations omitted). The claimant has the burden of proving that his claim is compensable. Henry v. A.C. Lawrence Leather Co., 231 N.C. 477, 479, 57 S.E.2d 760, 761 (1950) (citation omitted).\nIn the case sub judice, numerous findings of fact were made justifying the Commission\u2019s conclusion of law that \u201c[Mr. Gray\u2019s] heart attack was not the result of an accident arising out of his employment.\u201d The Commission found that the autopsy of Mr. Gray, performed by Dr. John D. Butts, fisted the cause of his death as coronary atherosclerosis. Dr. Butts also opined that the cause of death was the result of acute cardiac arrhythmia due to severe coronary atherosclerosis. Importantly, the Commission found that there was insufficient evidence to determine whether decedent\u2019s death was caused by an injury by accident arising out of his employment. \u201cSpecifically, there [was] insufficient evidence of record by which to determine whether [Mr. Gray\u2019s] cardiac event occurred prior to and independent of his fall, or whether [Mr. Gray\u2019s fall] and the events which following precipitated his cardiac event.\u201d The Commission also found that Dr. Welbome \u201cexpressed his \u2018strong\u2019 opinion to a reasonable degree of medical certainty that [Mr. Gray\u2019s] \u2018employment had no bearing on his death\u2019 and did not in any way contribute to his death.\u201d Dr. Welbome \u201copined that [Mr. Gray\u2019s] fall from his tmck did not cause or contribute to his heart attack, noting that a fall was not an accepted cause of heart attack.\u201d The Commission ultimately found that based upon the preponderance of the evidence in view of the entire record, that plaintiff had failed to carry her burden of proof to show that Mr. Gray\u2019s death was the result of an accident arising out o/the course and scope of his employment.\nBased on the foregoing, plaintiff\u2019s arguments are overruled.\nIll\nNext, plaintiff argues that the expert testimony of Dr. Charles W. Harris, Jr., pertaining to the causation of Mr. Gray\u2019s injuries was to a reasonable degree of medical certainty and was not merely speculative. Plaintiff contends that the mischaracterization of Dr. Harris\u2019 testimony \u201cshould not undermine Dr. Harris\u2019s opinion testimony that the major cardiac event started or was hastened after his fall from the UPS track, establishing a causal link to the cause of injury.\u201d\nHere, the Commission found that although Dr. Harris opined that Mr. Gray\u2019s heart attack started after he fell from his track, Dr. Harris eventually admitted that the basis for his opinion was personal experience rather than his knowledge of epidemiology or pathology associated with cardiovascular disease. The Commission also found that Dr. Harris later acknowledged that there was no way to know, \u201cwith the evidence or with my experience, whether he was having a heart attack in the truck or after he fell out of the truck\u201d and that \u201che could not be certain why [Mr. Gray] fell out.\u201d Finding of fact number 20 states that \u201c[w]hile he offered several possible scenarios... he ultimately agreed that he did not have a medical explanation for why [Mr. Gray] fell out.\u201d\nHowever, regardless of whether the Commission deemed Dr. Harris\u2019 testimony as speculative or not, our task is limited to determining whether the findings are supported by competent evidence and whether the conclusions of law are justified by its findings of fact. Shaw, _ N.C. App. at _, 720 S.E.2d at 690. \u201cThe Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.\u201d Adams v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998) (citation omitted).\nBecause we have held in issues I and II that the findings of fact supported the Commission\u2019s conclusion that \u201c[Mr. Gray\u2019s] heart attack was not the result of an accident arising out of his employment[,]\u201d plaintiff\u2019s argument is overruled.\nIV\nPlaintiff argues that the Commission erred by entering conclusion of law number five in its Opinion and Award entered 10 May 2012. Plaintiff contends that the \u201cmedical certainty\u201d standard applied by the Commission was in error.\nFirst, we note that plaintiff\u2019s argument is a mischaracterization of the Commission\u2019s conclusion. The Commission\u2019s conclusion of law number five provides the following:\nNorth Carolina law requires that where 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 give competent opinion evidence as to the cause of the injury. Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 265 S.E. 2d 389 (1980). Additionally, \u201cthe entirety of causation evidence\u201d must \u201cmeet the reasonable degree of medical certainty standard necessary to establish a causal link.\u201d Holley v. ACTS, Inc., 357 N.C. 228, 234, 581 S.E.2d 750, 754 (2003); Young v. Hickory Bus. Furn., 353 N.C. 227, 538 S.E.2d 912 (2000). \u201cAlthough medical certainty is not required, an expert\u2019s \u2018speculation\u2019 is insufficient to establish causation.\u201d Holley, 357 N.C. at 234, 581 S.E.2d 754.\nA reading of the Commission\u2019s conclusion of law number five clearly states that \u201cmedical certainty\u201d is not required. As noted by the Commission, it is well established that\n[i]n cases involving complicated medical questions far removed from the ordinary experience and knowledge of laymen, only an expert can give competent opinion evidence as to the cause of the injury. However, when such expert opinion testimony is based merely upon speculation and conjecture, ... it is not sufficiently reliable to qualify as competent evidence on issues of medical causation. The evidence must be such as to take the case out of the realm of conjecture and remove possibility, that is, there must be sufficient competent evidence tending to show a proximate causal relation.\nHutchens v. Lee, _ N.C. App. _, _, _, 729 S.E.2d 111, 114 (2012) (citing Holley, 357 N.C. at 232, 581 S.E.2d at 753).\nBased on the foregoing, plaintiffs arguments are overruled and the Opinion and Award of the Commission is affirmed.\nAffirmed.\nJudges CALABRIA and GEER concur.\n. The parties, witnesses, and Commission use the terms \u201ctruck\u201d and \u201ctractor\u201d interchangeably. For ease of reading, we will use the term \u201ctruck.\u201d\n. Pursuant to the Pickrell presumption \u201c[w]here 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. In order to rebut the presumption, the defendant has the burden of producing credible evidence that the death was not accidental or did not arise out of employment. In the presence of evidence that death was not compensable, the presumption disappears. In that event, the 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 Gray I, _ N.C. App. at _, 713 S.E.2d at 128 (citations omitted).\n. Commissioners Linda Cheatham and Pamela T. Young issued the Opinion and Award denying plaintiffs claim for benefits. Commission Christopher Scott issued a dissent on 4 May 2012, finding Mr. Gray\u2019s injuries and death to be compensable.",
        "type": "majority",
        "author": "BRYANT, Judge."
      }
    ],
    "attorneys": [
      "Teague Rotenstreich Stanaland Fox & Holt, PLLC, by Lyn K. Broom and, Kara V. Bordman, for plaintiff-appellant.",
      "Hedrick Gardner Kincheloe & Garofalo, LLP, by J. A. Gardner, Jennifer I. Mitchell, and M. Duane Jones, for defendant-appellees."
    ],
    "corrections": "",
    "head_matter": "MARY GRAY, WIDOW OF DAVID GRAY, DECEASED, EMPLOYEE, Plaintiff v. UNITED PARCEL SERVICE, INC., EMPLOYER, and LIBERTY MUTUAL INSURANCE COMPANY, CARRIER, Defendants\nNo. COA12-1029\nFiled 19 March 2013\n1. Workers\u2019 Compensation \u2014 heart attack \u2014 not an injury by accident arising out of employment\nThe Industrial Commission did not err in a workers\u2019 compensation case by denying plaintiff widow benefits. Numerous findings of fact were made justifying the Commission\u2019s conclusion of law that decedent\u2019s heart attack was not the result of an accident arising out of his employment.\n2. Workers\u2019 Compensation \u2014 doctor\u2019s testimony \u2014 Commission the sole judge of credibility of witnesses\nThe Industrial Commission did not err in a workers\u2019 compensation case by concluding a doctor\u2019s testimony was speculative. Regardless of whether the Commission deemed it speculative, the Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.\n3. Workers\u2019 Compensation \u2014 conclusion of law \u2014 mischaracter-ization of conclusion\nThe Industrial Commission did not err in a workers\u2019 compensation case by entering its conclusion of law number five. Plaintiff\u2019s argument was a mischaracterization of the Commission\u2019s conclusion.\nAppeal by plaintiff from Opinion and Award of the Full Commission entered 10 May 2012 by the North Carolina Industrial Commission. Heard in the Court of Appeals 9 January 2013.\nTeague Rotenstreich Stanaland Fox & Holt, PLLC, by Lyn K. Broom and, Kara V. Bordman, for plaintiff-appellant.\nHedrick Gardner Kincheloe & Garofalo, LLP, by J. A. Gardner, Jennifer I. Mitchell, and M. Duane Jones, for defendant-appellees."
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