North Carolina Lawyers Weekly
Gray v. United Parcel Services, Inc. (Lawyers Weekly No. 11-07-0614, 10 pp.) (Sanford L. Steelman Jr., J.) Appealed from the Industrial Commission. N.C. App. Click here for the full-text opinion.
Holding: A defense expert testified that decedent’s death was unrelated to his work and was the result of an acute cardiac event. The expert’s testimony was sufficient to rebut the Pickrell presumption that decedent’s death arose out of decedent’s employment, and the Industrial Commission failed to properly complete the remainder of the Pickrell analysis.
We remand for a determination of whether the widow met her burden of proving that the death arose out of the course and scope of employment.
Need for Remand
Where Dr. Barry Welborne clearly stated that decedent’s death was not work-related, this testimony rebutted the Pickrell v. Motor Convoy, Inc., 322 N.C. 363, 368 S.E.2d 582 (1988), presumption, and the commission erred in its application of the Pickrell presumption. This case is remanded for the commission to determine whether plaintiff has met her burden of proof of establishing that the death was a result of an accident arising out of the course and scope of employment.
The commission did not abuse its discretion in denying defendants’ motion for extension of time to take additional expert testimony where the testimony would have caused unnecessary delay and been duplicative of the testimony already given by Dr. Welborne.
Pursuant to the Pickrell presumption, where the evidence shows an employee died within the course and scope of his employment and there is no evidence regarding whether the cause of death was an injury by accident arising out of employment, the claimant is entitled to a presumption that the death was a result of an injury by accident arising out of employment.
Defendants’ expert witness, Dr. Welborne, testified that decedent’s “employment had no bearing on his death” and that decedent’s employment did not contribute at all to his death. Dr. Welborne testified that decedent had an acute cardiac event in the cab of his truck. Dr. Welborne testified that this was the only explanation that could account for decedent’s irrational behavior in exiting the moving truck.
As a matter of law, Dr. Welborne’s testimony was sufficient to rebut the presumption. In holding that the presumption was not rebutted, the commission erred.
If the Pickrell presumption is rebutted, then the 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.
The commission erred by conflating the second and third steps of the analysis. Upon remand, the commission should weigh the evidence under the third step of the Pickrell analysis to determine whether plaintiff has met her burden of proof.
