I. IN GENERAL.

The Workers' Compensation Act is a compromise arrived at through the concessions of employees and employers alike. Nothing in it supports the notion that it was enacted just for the protection of careful, prudent employees, or that employees that do not stick strictly to their business are beyond its protection. By its terms, with certain exceptions the act applies to all employees who work for employers with the requisite number of employees and are injured by accident during the course of and arising from their employment; and it is not required that the employment be the sole proximate cause of the injury, it being enough that any reasonable relationship to the employment exists, or employment is a contributory cause. Bare v. Wayne Poultry Co., 70 N.C. App. 88, 318 S.E.2d 534 (1984), cert. denied, 312 N.C. 796, 325 S.E.2d 484 (1985).

The social policy behind the Workers' Compensation Act is twofold. First, the Act provides employees swift and certain compensation for the loss of earning capacity from accident or occupational disease arising in the course of employment. Second, the Act insures limited liability for employers. Although the Act should be liberally construed to effectuate its intent, the courts cannot judicially expand the employer's liability beyond the statutory parameters. Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 345 S.E.2d 374 (1986).

Liberal Construction. - The intent of the Legislature regarding the operation of a particular provision of the Workers' Compensation Act is to be discerned from a consideration of the act as a whole - its language, purposes and spirit. This spirit is one of liberal construction, whenever appropriate, so that benefits will not be denied upon mere technicalities. Brown v. Walnut Cove Volunteer Fire Dep't, 71 N.C. App. 409, 322 S.E.2d 443 (1984), aff'd, 317 N.C. 147, 343 S.E.2d 523 (1986).

As to the inapplicability of state compensation laws to employment of purely admiralty cognizance, see London Guar. & Accident Co. v. Industrial Accident Comm'n, 279 U.S. 109, 49 S. Ct. 296, 73 L. Ed. 632 (1929).

Industrial Commission Sole Judge of Witnesses Reliability. - In weighing the evidence, the Industrial Commission is the sole judge of the credibility of the witnesses and the weight to be given to their testimony, and may reject a witness' testimony entirely if warranted by disbelief of that witness. Lineback v. Wake County Bd. of Comm'rs, 126 N.C. App. 678, 486 S.E.2d 252 (1997).

Effect of Superior Court's Jurisdictional Findings. - The Supreme Court would consider the superior court's findings of jurisdictional fact as binding on appeal if supported by the evidence when the question was whether the Industrial Commission or the superior court had jurisdiction over a claim. Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577, 350 S.E.2d 83, rehearing denied, 318 N.C. 704, 351 S.E.2d 736 (1986).

Duty and Forseeability Not at Issue. - Where plaintiff's intestate choked while eating during her lunch break at work, the fact that she was mentally retarded had no bearing with regard to plaintiffs' workers' compensation claim, as plaintiff 's contention that defendant owed a higher duty of care to its employees because they were mentally retarded was an argument better suited to a negligence action where duty and foreseeability are required to be proven for the plaintiff to recover. Forsythe v. INCO, 95 N.C. App. 742, 384 S.E.2d 30 (1989).

Death Benefits. - To recover death benefits under the Workers Compensation Act a claimant bears the burden of proving that the decedent sustained a fatal injury (1) by accident, (2) arising out of his employment, and (3) during the course of his employment. Westbrooks v. Bowes, 130 N.C. App. 517, 503 S.E.2d 409 (1998).

Civil Action Allowed for Employer's Misconduct Substantially Certain to Cause Injury or Death. - When an employer intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death to employees and an employee is injured or killed by that misconduct, that employee, or the personal representative of the estate in case of death, may pursue a civil action against the employer as well as a claim for workers' compensation as such misconduct is tantamount to an intentional tort, and civil actions based thereon are not barred by the exclusivity provisions of the Workers' Compensation Act. Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991).

Election Between Remedies Not Required. - A claimant may, but is not required to, elect between a civil remedy and a remedy under the Workers' Compensation Act but, in any event, is entitled to but one recovery. Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991).

Woodson v. Rowland Applies Retroactively. - The Supreme Court's decision in Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991), which is annotated above, applies retroactively, even though the Woodson court was silent on whether its decision was to operate retroactively. Dunleavy v. Yates Constr. Co., 106 N.C. App. 146, 416 S.E.2d 193, cert. denied, 332 N.C. 343, 421 S.E.2d 146 (1992).

Co-employee Civil Liability. - The Workers' Compensation Act does not bar an employee from suing a co-employee for injuries caused by willful, wanton, and reckless negligence. Dunleavy v. Yates Constr. Co., 106 N.C. App. 146, 416 S.E.2d 193, cert. denied, 332 N.C. 343, 421 S.E.2d 146 (1992).

No Common-Law Action against Negligent Fellow Employee. - An employee who sustains an "injury arising out of and in the course of employment," caused by the negligence of a fellow employee who was acting within "the course of employment," as that term is used in subdivision (6) of this section, may not maintain an action at common law against the negligent employee. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968).

Failure to Specify Defense. - Plaintiff was not prejudiced by failure of defendants to specify the defense which they planned to use at his hearing, and whatever defense the defendants may have relied upon, the burden was on plaintiff to prove that he was injured by an accident arising out of and in the course of employment. Parker v. Burlington Indus., Inc., 78 N.C. App. 517, 337 S.E.2d 589 (1985).

Refusal to Accept Tendered Work. - Defendant's argument that the plaintiff was not disabled within the meaning of subsection (9) because they offered him employment consistent with his medical limitations (one functional arm) at no reduction in salary and that plaintiff was barred from compensation for total disability because he unjustifiably refused the tendered employment suitable to his capacity, was rejected. Bowden v. Boling Co., 110 N.C. App. 226, 429 S.E.2d 394 (1993).

Length of Healing Period - Both pain treatment and vocational services were medical compensation, and were designed to give relief and to lessen the period of disability; the evidence supported the industrial commission's finding that the worker had not reached maximum medical improvement or the end of the healing period since he was in need of and would have benefited from both chronic pain treatment and a vocational rehabilitation program, and until he reached maximum vocational recovery, the worker's healing period was not at an end. Walker v. Lake Rim Lawn & Garden, 155 N.C. App. 709, 575 S.E.2d 764 (2003), cert. denied, 357 N.C. 67, 579 S.E.2d 577 (2003).

Treatment Not Limited to FDA-Approved Drugs. - Industrial Commission properly ordered an employer and its carrier to pay for an employee's treatment that was not approved by the U.S. Food and Drug Administration (FDA) because the Workers' Compensation Act did not limit the types of drugs that might reasonably be required solely to those that were FDA-approved, and the two physicians who treated the employee concluded that the non-approved compound cream was reasonably required to afford relief. Davis v. Craven Cty. ABC Bd., 259 N.C. App. 45, 814 S.E.2d 602 (2018).

Reasonable Rehabilitative Service. - North Carolina Industrial Commission's conclusion that a workers' compensation claimant's life care plan was a "reasonable rehabilitative service" under G.S. 97-2(19) and G.S. 97-25 was supported by a doctor's opinion that the life care plan was medically necessary for the claimant. Scarboro v. Emery Worldwide Freight Corp., 192 N.C. App. 488, 665 S.E.2d 781 (2008).

General Assembly's employment of the language "but not limited to" is indicative of its intent to set out a non-exhaustive list of what might constitute "rehabilitative services" while affording some room for judicial augmentation. Miller v. Carolinas Med. Ctr.-Northeast, 233 N.C. App. 342, 756 S.E.2d 54 (2014).

Employee timely filed her claim for additional benefits because the employer last provided medical compensation for the employee's injury when it tendered payment to a medical company; the services the medical company provided constitute "rehabilitative services" because its role as an administrative intermediary was necessary to ensure the employee received the appropriate treatment in order to effect a cure or give relief for her compensable back injury. Miller v. Carolinas Med. Ctr.-Northeast, 233 N.C. App. 342, 756 S.E.2d 54 (2014).

Return of Employee to Normal Hours and Wages. - North Carolina Industrial Commission's finding that a workers' compensation claimant had returned to his normal hours and wages did not require denial of the claimant's disability claim. White v. Weyerhaeuser Co., 167 N.C. App. 658, 606 S.E.2d 389 (2005).

When Fault of Employee Bars Recovery. - The circumstances in which fault of an employee operates to bar workers' compensation benefits are (1) when the employee's injury was proximately caused by intoxication or being under the influence of a controlled substance, or (2) when the injury was proximately caused by the employee's willful intention to injure or kill himself. Creel v. Town of Dover, 126 N.C. App. 547, 486 S.E.2d 478 (1997).

Competent evidence existed to show that employee's loss of wage-earning capacity was caused by his injury because he was informed by prospective employers that they did not have a position for him while he was on light-duty work restrictions. White v. Weyerhaeuser Co., 167 N.C. App. 658, 606 S.E.2d 389 (2005).

Workers' compensation claimant met his burden of proving disability by producing evidence that he was capable of some work, but that, after a reasonable effort, he had been unsuccessful and by showing that he had obtained other employment at a considerably reduced wage. White v. Weyerhaeuser Co., 167 N.C. App. 658, 606 S.E.2d 389 (2005).

While the case law interpreting the specific traumatic incident provision of G.S. 97-2(6) requires the plaintiff to prove an injury at a cognizable time, this does not compel the plaintiff to allege the specific hour or day of the injury; where a Form 18 specifically described the accident causing an employee's injury as a tire changing incident, this was sufficient to constitute a claim arising out of that incident, despite the fact that the form listed the date of a later truck exiting incident as the date of the accident. Crane v. Berry's Clean-Up & Landscaping, Inc., 169 N.C. App. 323, 610 S.E.2d 464 (2005).

Claim Held Cognizable. - Claim of employee hired for other types of work, who was temporarily engaged in pumping water from a leaking and powerless barge which was being loaded with logs on the Roanoke River and was crushed by the barge and killed when the logs started rolling, the barge careened toward the channel, and the employee jumped ashore, where he and his employer had both accepted the State compensation act, was properly cognizable by the Commission. The application of the State act to such a situation did not violate the federal Constitution by interference with the uniformity of the general maritime law. Johnson v. Foreman-Blades Lumber Co., 216 N.C. 123, 4 S.E.2d 334 (1939).

Applied in Miller v. Roberts, 212 N.C. 126, 193 S.E. 286 (1937); Rice v. Thomasville Chair Co., 238 N.C. 121, 76 S.E.2d 311 (1953); Edwards v. City of Raleigh, 240 N.C. 137, 81 S.E.2d 273 (1954); McNair v. Ward, 240 N.C. 330, 82 S.E.2d 85 (1954); Harris v. Asheville Contracting Co., 240 N.C. 715, 83 S.E.2d 802 (1954); Burns v. Riddle, 265 N.C. 705, 144 S.E.2d 847 (1965); Cobb v. Eastern Clearing & Grading, Inc., 1 N.C. App. 327, 161 S.E.2d 612 (1968); Crawford v. Pressley, 6 N.C. App. 641, 171 S.E.2d 197 (1969); Bass v. Morresville Mills, 15 N.C. App. 206, 189 S.E.2d 581 (1972); Lewallen v. National Upholstery Co., 27 N.C. App. 652, 219 S.E.2d 798 (1975); Development Assocs. v. Wake County Bd. of Adjustment, 48 N.C. App. 541, 269 S.E.2d 700 (1980); Hyatt v. Waverly Mills, 56 N.C. App. 14, 286 S.E.2d 837 (1982); Dowdy v. Fieldcrest Mills, Inc., 59 N.C. App. 696, 298 S.E.2d 82 (1982); May v. Shuford Mills, Inc., 64 N.C. App. 276, 307 S.E.2d 372 (1983); Godley v. Hackney & Sons, 65 N.C. App. 155, 308 S.E.2d 492 (1983); Freeman v. SCM Corp., 66 N.C. App. 341, 311 S.E.2d 75 (1984); Joyner v. J.P. Stevens & Co., 7 1 N.C. App. 625, 322 S.E.2d 636 (1984); Keziah v. Monarch Hosiery Mills, 71 N.C. App. 793, 323 S.E.2d 356 (1984); Phillips v. Boling Co., 73 N.C. App. 139, 326 S.E.2d 76 (1985); Algary v. McCarley & Co., 74 N.C. App. 125, 327 S.E.2d 296 (1985); Kelly v. Carolina Components, 86 N.C. App. 73, 356 S.E.2d 367 (1987); Ross v. Mark's Inc., 120 N.C. App. 607, 463 S.E.2d 302 (1995); Adams v. Kelly Springfield Tire Co., 123 N.C. App. 681, 474 S.E.2d 793 (1996); Brown v. Family Dollar Distribution Ctr., 129 N.C. App. 361, 499 S.E.2d 197 (1998); Soto v. McLean, 20 F. Supp. 2d 901 (E.D.N.C. 1998); Davis v. Weyerhaeuser Co., 132 N.C. App. 771, 514 S.E.2d 91 (1999); Smith v. Pinkerton's Sec. & Investigations, 146 N.C. App. 278, 552 S.E.2d 682 (2001); Zimmerman v. Eagle Elec. Mfg. Co., 147 N.C. App. 748, 556 S.E.2d 678 (2001); Bailey v. Western Staff Servs., 151 N.C. App. 356, 566 S.E.2d 509 (2002); McGhee v. Bank of Am. Corp., 173 N.C. App. 422, 618 S.E.2d 833 (2005); Davis v. Harrah's Cherokee Casino, 362 N.C. 133, 655 S.E.2d 392 (2008); McLaughlin v. Staffing Solutions, 206 N.C. App. 137, 696 S.E.2d 839 (2010); Johnson v. Southern Tire Sales & Serv., 233 N.C. App. 659, 758 S.E.2d 19 (2014); McLaughlin v. Bailey, 240 N.C. App. 159, 771 S.E.2d 570 (2015), appeal, dismissed, 368 N.C. 284, 775 S.E.2d 835, 2015 N.C. LEXIS 713 (2015), aff'd, 368 N.C. 618, 781 S.E.2d 23, 2016 N.C. LEXIS 28 (2016).

Cited in Murphy v. American Enka Corp., 213 N.C. 218, 195 S.E. 536 (1938); Lineberry v. Mebane, 219 N.C. 257, 13 S.E.2d 429 (1941); Young v. Whitehall Co., 229 N.C. 360, 49 S.E.2d 797 (1948); Worley v. Pipes, 229 N.C. 465, 50 S.E.2d 504 (1948); Ducan v. Carpenter, 233 N.C. 422, 64 S.E.2d 410 (1951); Fields v. Hollowell, 238 N.C. 614, 78 S.E.2d 740 (1953); Sweatt v. Rutherford County Bd. of Educ., 237 N.C. 653, 75 S.E.2d 738 (1953); Watts v. Brewer, 243 N.C. 422, 90 S.E.2d 764 (1956); Smith v. Mecklenburg County Chapter Am. Red Cross, 245 N.C. 116, 95 S.E.2d 559 (1956); Brinkley v. United Feldspar & Minerals Corp., 246 N.C. 17, 97 S.E.2d 419 (1957); Evans v. Asheville Citizens Times Co., 246 N.C. 669, 100 S.E.2d 75 (1957); Wesley v. Lea, 252 N.C. 540, 114 S.E.2d 350 (1960); Shealy v. Associated Transp., 252 N.C. 738, 114 S.E.2d 702 (1960); Jackson v. Bobbitt, 253 N.C. 670, 117 S.E.2d 806 (1961); Davis v. North Carolina Granite Corp., 259 N.C. 672, 131 S.E.2d 335 (1963); Burgess v. Gibbs, 262 N.C. 462, 137 S.E.2d 806 (1964); Byers v. North Carolina State Hwy. Comm'n, 3 N.C. App. 139, 164 S.E.2d 535 (1968); Wilmington Shipyard, Inc. v. North Carolina State Hwy. Comm'n, 6 N.C. App. 649, 171 S.E.2d 222 (1969); Hudson v. J.P. Stevens & Co., 12 N.C. App. 366, 183 S.E.2d 206 (1971); Smith v. Liberty Mut. Ins. Co., 409 F. Supp. 1211 (M.D.N.C. 1976); Allred v. Piedmont Woodyards, Inc., 32 N.C. App. 516, 232 S.E.2d 879 (1977); Perry v. Hibriten Furn. Co., 296 N.C. 88, 249 S.E.2d 397 (1978); Wood v. J.P. Stevens & Co., 36 N.C. App. 456, 245 S.E.2d 82 (1978); Britt v. Colony Constr. Co., 35 N.C. App. 23, 240 S.E.2d 479 (1978); Perry v. Hibriten Furn. Co., 35 N.C. App. 518, 241 S.E.2d 697 (1978); Taylor v. J.P. Stevens & Co., 300 N.C. 94, 265 S.E.2d 144 (1980); Thornton v. Thornton, 45 N.C. App. 25, 262 S.E.2d 326 (1980); Morrison v. Burlington Indus., 47 N.C. App. 50, 266 S.E.2d 741 (1980); Hilliard v. Apex Cabinet Co., 54 N.C. App. 173, 282 S.E.2d 828 (1981); McKee v. Crescent Spinning Co., 54 N.C. App. 558, 284 S.E.2d 175 (1981); Morrison v. Burlington Indus., 304 N.C. 1, 282 S.E.2d 458 (1981); Sparks v. Mountain Breeze Restaurant & Fish House, Inc., 55 N.C. App. 663, 286 S.E.2d 575 (1982); Lankford v. Dacotah Cotton Mills, 56 N.C. App. 250, 287 S.E.2d 471 (1982); Harrell v. Yarns, 56 N.C. App. 697, 289 S.E.2d 846 (1982); Cook v. Bladenboro Cotton Mills, Inc., 61 N.C. App. 562, 300 S.E.2d 852 (1983); West v. Bladenboro Cotton Mills, Inc., 62 N.C. App. 267, 302 S.E.2d 645 (1983); Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 301 S.E.2d 359 (1983); Prevette v. Clark Equip. Co., 62 N.C. App. 272, 302 S.E.2d 639 (1983); Anderson v. Century Data Sys., Inc., 71 N.C. App. 540, 322 S.E.2d 638 (1984); Capps v. Standard Trucking Co., 77 N.C. App. 448, 335 S.E.2d 357 (1985); Underwood v. Cone Mills Corp., 78 N.C. App. 155, 336 S.E.2d 634 (1985); Gupton v. Builders Transp., 320 N.C. 38, 357 S.E.2d 674 (1987); Pitman v. Feldspar Corp., 87 N.C. App. 208, 360 S.E.2d 696 (1987); Gaddy v. Anson Wood Prods., 92 N.C. App. 483, 374 S.E.2d 477 (1988); Brimley v. Logging, 93 N.C. App. 467, 378 S.E.2d 52 (1989); Cook v. Norvell-Mackorell Real Estate Co., 99 N.C. App. 307, 392 S.E.2d 758 (1990); Mayhew v. Howell, 102 N.C. App. 269, 401 S.E.2d 831 (1991); Postell v. B & D Constr. Co., 104 N.C. App. 1, 411 S.E.2d 413
(1992); Freeman v. Freeman, 107 N.C. App. 644, 421 S.E.2d 623 (1992); Matthews v. Petroleum Tank Serv., Inc., 108 N.C. App. 259, 423 S.E.2d 532 (1992); Gilliam v. Perdue Farms, 112 N.C. App. 535, 435 S.E.2d 780 (1993); Grantham v. R.G. Barry Corp., 115 N.C. App. 293, 444 S.E.2d 659 (1994); Blackmon v. North Carolina Dep't of Cors., 118 N.C. App. 666, 457 S.E.2d 306 (1995), aff'd, 343 N.C. 259, 470 S.E.2d 8 (1996); Murray v. Associated Insurers, Inc., 341 N.C. 712, 462 S.E.2d 490 (1995); Harris v. North Am. Prods., 125 N.C. App. 349, 481 S.E.2d 321 (1997); Cooke v. P.H. Glatfelter/Ecusta, 130 N.C. App. 220, 502 S.E.2d 419 (1998); Flores v. Stacy Penny Masonry Co., 134 N.C. App. 452, 518 S.E.2d 200 (1999); Buser v. Southern Food Serv., 73 F. Supp. 2d 556 (M.D.N.C. 1999); Lanning v. Fieldcrest-Cannon, Inc., 352 N.C. 98, 530 S.E.2d 54 (2000); Kanipe v. Lane Upholstery, 141 N.C. App. 620, 540 S.E.2d 785 (2000); Reece v. Forga, 138 N.C. App. 703, 531 S.E.2d 881 (2000); Terrell v. Terminix Servs., 142 N.C. App. 305, 542 S.E.2d 332 (2001); Russos v. Wheaton Indus., 145 N.C. App. 164, 551 S.E.2d 456 (2001); Landry v. US Airways, Inc., 150 N.C. App. 121, 563 S.E.2d 23 (2002); Foster v. U.S. Airways, Inc., 149 N.C. App. 913, 563 S.E.2d 235 (2002), cert. denied, 356 N.C. 299, 570 S.E.2d 505 (2002); Shoemaker v. Creative Builders, 150 N.C. App. 523, 563 S.E.2d 622 (2002); Pomeroy v. Tanner Masonry, 151 N.C. App. 171, 565 S.E.2d 209 (2002); Nix v. Collins & Aikman, Co., 151 N.C. App. 438, 566 S.E.2d 176 (2002); Johnson v. S. Tire Sales & Serv., 152 N.C. App. 323, 567 S.E.2d 773 (2002), cert. denied, 356 N.C. 437, 572 S.E.2d 784 (2002); Rosero v. Blake, 357 N.C. 193, 581 S.E.2d 41 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1407, 158 L. Ed. 2d 78 (2004); Dial v. Cozy Corner Rest., Inc., 161 N.C. App. 694, 589 S.E.2d 146 (2003); Workman v. Rutherford Elec. Mbrshp. Corp., 170 N.C. App. 481, 613 S.E.2d 243 (2005); Flynn v. EPSG Mgmt. Servs., 171 N.C. App. 353, 614 S.E.2d 460 (2005); Outerbridge v. Perdue Farms, Inc., 181 N.C. App. 50, 638 S.E.2d 564 (2007); Cash v. Lincare Holdings, 181 N.C. App. 259, 639 S.E.2d 9 (2007); Bradley v. Mission St. Joseph's Health Sys., 180 N.C. App. 592, 638 S.E.2d 254 (2006); Cross v. Capital Transaction Group, Inc., 191 N.C. App. 115, 661 S.E.2d 778 (2008), review denied, 363 N.C. 124, 672 S.E.2d 687 (2009); Putman v. Alexander, 194 N.C. App. 578, 670 S.E.2d 610 (2009); N.C. Ins. Guar. Ass'n v. Bd. of Trs. of Guilford Tech. Cmty. College, 364 N.C. 102, 691 S.E.2d 694 (2010); Woodliff v. Fitzpatrick, 205 N.C. App. 192, 695 S.E.2d 503 (2010), review dismissed, as moot, 705 S.E.2d 378 (2010); Reaves v. Indus. Pump Serv., 205 N.C. App. 417, 696 S.E.2d 548 (2010); Hedges v. Wake County Pub. Sch. Sys., 206 N.C. App. 732, 699 S.E.2d 124 (2010), review denied, 705 S.E.2d 746, 2011 N.C. LEXIS 44 (2011); Shackleton v. Southern Flooring & Acoustical Co., 211 N.C. App. 233, 712 S.E.2d 289 (2011); Newnam v. New Hanover Reg'l Med. Ctr., 212 N.C. App. 271, 711 S.E.2d 194 (2011); Powe v. Centerpoint Human Servs., 215 N.C. App. 395, 715 S.E.2d 296 (2011), review denied, 721 S.E.2d 230, 2012 N.C. LEXIS 93 (2012); Wynn v. United Health Services/Two Rivers Health - Trent Campus, 214 N.C. App. 69, 716 S.E.2d 373 (2011); Gregory v. Pearson, 224
N.C. App. 580, 736 S.E.2d 577 (2012); Espinosa v. Tradesource, Inc., 231 N.C. App. 174, 752 S.E.2d 153 (2013); Yerby v. N.C. Dep't of Pub. Safety/Div. of Juvenile Justice, 2 32 N.C. App. 515, 754 S.E.2d 209 (2014); Harris v. Southern Commer. Glass, 249 N.C. App. 26, 789 S.E.2d 735 (2016); Anders v. Universal Leaf North Am., 253 N.C. App. 241, 800 S.E.2d 99 (2017), superseded, 803 S.E.2d 463, 2017 N.C. App. LEXIS 642 (N.C. Ct. App. 2017).

II. EMPLOYMENT, EMPLOYEES, AND EMPLOYERS.

A. IN GENERAL.

.

An injured person is entitled to compensation under the Act only if he was an employee of the party from whom compensation is claimed at the time of his injury. Hart v. Thomasville Motors, Inc., 244 N.C. 84, 92 S.E.2d 673 (1956); Richards v. Nationwide Homes, 263 N.C. 295, 139 S.E.2d 645 (1965); Lucas v. Li'l Gen. Stores, 289 N.C. 212, 221 S.E.2d 257 (1976).

To be entitled to maintain a proceeding for compensation for personal injury under the Act, the claimant must be, in fact and in law, an employee of the alleged employer. Askew v. Leonard Tire Co., 264 N.C. 168, 141 S.E.2d 280 (1965); Youngblood v. North State Ford Truck Sales, 321 N.C. 380, 364 S.E.2d 433, rehearing denied, Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E.2d 577 (1976).

Employment Is Jurisdictional. - The question of whether an employer-employee relationship exists is jurisdictional. Askew v. Leonard Tire Co., 264 N.C. 168, 141 S.E.2d 280 (1965); Lucas v. Li'l Gen. Stores, 289 N.C. 212, 221 S.E.2d 257 (1976); Youngblood v. North State Ford Truck Sales, 321 N.C. 380, 364 S.E.2d 433, rehearing denied, Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865 (1963).

Because the act only applies where the employer-employee relationship exists, the question of whether it existed at the time of the accident is jurisdictional. Carter v. Frank Shelton, Inc., 62 N.C. App. 378, 303 S.E.2d 184 (1983), cert. denied, 310 N.C. 476, 312 S.E.2d 883 (1984).

Initial Fact to Be Established. - Before the provisions of the act are called into play, the relation of master and servant, or employer and employee, or some appointment, must exist; this is the initial fact to be established. Hicks v. Guilford County, 267 N.C. 364, 148 S.E.2d 240 (1966).

Whether an injured person is an employee of the defendant is a matter of proof which may properly be determined in the Supreme Court. Charnock v. Reusing Light & Refrigerating Co., 202 N.C. 105, 161 S.E. 707 (1931).

Inquiry Is Mixed Question of Law and Fact. - The inquiry whether employer-employee relationship exists is a mixed question of fact and law. Askew v. Leonard Tire Co., 264 N.C. 168, 141 S.E.2d 280 (1965).

Its correct determination depends upon the answer to two questions: (1) What are the terms of the agreement, that is, what was the contract between the parties; and (2) what relationship between the parties was created by the contract, that is, was it that of master and servant or that of employer and independent contractor? The first involves a question of fact and the second is a question of law. Askew v. Leonard Tire Co., 264 N.C. 168, 141 S.E.2d 280 (1965).

Burdern of Proof. - Claimant has burden of proving that an employer-employee relationship existed at the time an injury by accident occurred. Hughart v. Dasco Transp., Inc., 167 N.C. App. 685, 606 S.E.2d 379 (2005).

Common-Law Tests Applicable. - The statutory definition of "employee" adds nothing to the common-law meaning of the term. Whether an employer-employee relationship existed at the time of the injury by accident is to be determined by the application of the ordinary common-law tests. Lucas v. Li'l Gen. Stores, 289 N.C. 212, 221 S.E.2d 257 (1976); Carter v. Frank Shelton, Inc., 62 N.C. App. 378, 303 S.E.2d 184 (1983), cert. denied, 310 N.C. 476, 312 S.E.2d 883 (1984).

Wages or Salary. - An employee is one who works for another for wages or salary, and the right to demand pay for his services from his employer would seem to be essential to his right to receive compensation under the act. Lucas v. Li'l Gen. Stores, 289 N.C. 212, 221 S.E.2d 257 (1976).

Compulsion of Legal Process. - One may be an employee, within the meaning of the Workers' Compensation Act, even if his employment is involuntary and under the compulsion of legal process. Hicks v. Guilford County, 267 N.C. 364, 148 S.E.2d 240 (1966).

Excluded Employees. - This Chapter excludes persons whose employment is casual and not in the course of the trade, business, profession or occupation of the employer, and specifically excepts from its provisions casual employees, farm laborers and domestic servants. Burnett v. Palmer-Lipe Paint Co., 216 N.C. 204, 4 S.E.2d 507 (1939).

Aliens. - This section makes clear that the General Assembly sought to include individuals like the plaintiff, who worked without the right of citizenship or a green card, under the protections of the Workers' Compensation Act. Rivera v. Trapp, 135 N.C. App. 296, 519 S.E.2d 777 (1999).

Illegal alien, who obtained his employment with falsified documents, was entitled to workers' compensation benefits following injuries in a fall. Ruiz v. Belk Masonry Co., 148 N.C. App. 675, 559 S.E.2d 249 (2002), appeal dismissed, cert. denied, 356 N.C. 166, 568 S.E.2d 610 (2002).

Employees Eligible to Retire. - A claimant's entitlement to a workers' compensation disability award is unrelated to either the claimant's eligibility to retire or his decision to retire. Troutman v. White & Simpson, Inc., 121 N.C. App. 48, 464 S.E.2d 481 (1995).

Full-Time Employment. - Employees who are employed in distributive education programs may not be fairly and justly classified as full-time for purposes of the Workers' Compensation Act. Mabry v. Bowers Implement Co., 48 N.C. App. 139, 269 S.E.2d 165 (1980).

Suitable Employment. - To read the suitable employment definition as including the 50-mile radius requirement as a "factor" would ignore the ordinary rules of grammar and disregard the North Carolina Legislature's intent that the 50-mile radius language be a requirement, rather than merely a factor to be considered. Therefore, in a workers' compensation case, a job offered to a Kingsport, Tennessee resident that was located in Charleston, South Carolina did not constitute "suitable employment" within the meaning of G.S. 97-2. Falin v. Roberts Co. Field Servs., 245 N.C. App. 144, 782 S.E.2d 75 (2016), review denied, 793 S.E.2d 226, 2016 N.C. LEXIS 837 (2016).

North Carolina Industrial Commission erred in holding that a fabrication shop position was suitable employment and not make work because the Commission failed to address the central tenet of the make-work analysis: whether the job was available with employers other than the employer; there was no evidence in the record and no findings by the Commission as to whether the fabrication shop position existed in the competitive job market. Griffin v. Absolute Fire Control, Inc., 269 N.C. App. 193, 837 S.E.2d 420 (2020), aff'd, cert. dismissed, as moot, 376 N.C. 727, 854 S.E.2d 578, 2021 N.C. LEXIS 167 (2021); cert. dismissed, as moot, 854 S.E.2d 588, 2021 N.C. LEXIS 185 (N.C. 2021).

Joint employment occurs when a single employee under contract with two employers, and under the simultaneous control of both, simultaneously performs services for both employers, and when the service for each employer is the same as, or is closely related to, that for the other. In such a case, both employers are liable for workers' compensation. Henderson v. Manpower of Guilford County, Inc., 70 N.C. App. 408, 319 S.E.2d 690 (1984); Anderson v. Texas Gulf, Inc., 83 N.C. App. 634, 351 S.E.2d 109 (1986).

Under some circumstances a person can be an employee of two different employers at the same time, in which event either employer or both may be liable for worker's compensation. Henderson v. Manpower of Guilford County, Inc., 70 N.C. App. 408, 319 S.E.2d 690 (1984).

Even if there is a mutual business interest between the two employers, and perhaps even some element of control, joint employment as to one employer cannot be found in the absence of a contract with that employer. Anderson v. Texas Gulf, Inc., 83 N.C. App. 634, 351 S.E.2d 109 (1986).

No Joint Employment. - Industrial Commission did not err in finding that the claimant was not an employee of the company at the time of her injury under the joint employment doctrine; there was no express contract of hire between the claimant and the company, the claimant was hired, paid, and supervised by the business, and the claimant did not support her argument that the work she performed for the business was essentially the same as the work performed by the company. Whicker v. Compass Group USA, Inc., 246 N.C. App. 791, 784 S.E.2d 564 (2016).

Requirements to Establish Employment Relationship. - G.S. 97-2(2) contains no requirement that a job applicant, to establish an employment relationship, ascertain whether the person who hires him or her on behalf of an employing entity is acting within the scope of that person's actual authority. Campos-Brizuela v. Rocha Masonry, L.L.C., 216 N.C. App. 208, 716 S.E.2d 427 (2011).

Stipulation as to Employment Relationship. - Stipulation of defendants, prior to hearing, that at the time of injury, the employment relationship existed between plaintiff and defendant employer, was binding on defendants; such a stipulation made it unnecessary for plaintiff to offer evidence of the validity or legal status of his corporate employer at the time of plaintiff 's injury. Sorrell v. Sorrell's Farms & Ranches, Inc., 78 N.C. App. 415, 337 S.E.2d 595 (1985).

Because worker and owner of company were considered co-employees, owner was not individually liable to worker under the Workers' Compensation Act for injuries sustained by worker; thus worker's claims against owner were not excluded from insurer's policy coverage under general liability exclusion for workers' compensation benefits. Newton v. United States Fire Ins. Co., 98 N.C. App. 619, 391 S.E.2d 837 (1990).

Prospective employee who was injured during a pre-employment interview was not an "employee," for purposes of coverage by the North Carolina Workers' Compensation Act, as defined in G.S. 97-2(2). Huntley v. Howard Lisk Co., 154 N.C. App. 698, 573 S.E.2d 233 (2002), cert. denied, 357 N.C. 62, 579 S.E.2d 389 (2003).

Employment Shown. - Where deceased was employed and paid by defendant's driver to assist him in delivering bottled drinks, but the defendant knew of, and consented to, the arrangement between deceased and the driver, the evidence was sufficient to support a finding that deceased was an employee of defendant. Michaux v. Gate City Orange Crush Bottling Co., 205 N.C. 786, 172 S.E. 406 (1934).

Evidence was sufficient to support a finding of the Commission that deceased, the driver of a tractor-tank, was an employee of defendant oil company, a partnership, and not of a separate transportation business operated by one of the partners. Moses v. Bartholomew, 238 N.C. 714, 78 S.E.2d 923 (1953).

Where the owner of a truck drives same on a trip in interstate commerce for an interstate carrier under a trip-lease agreement providing that the carrier's I.C.C. license plates should be used and the carrier retain control and direction over the truck, an assistant driver employed by the owner-lessor is an employee of the carrier within the coverage of the North Carolina Workers' Compensation Act. Further, if the owner-lessor were considered an independent contractor, but he had less than five employees and no compensation insurance coverage, the carrier would still be liable under G.S. 97-19. McGill v. Bison Fast Freight, Inc., 245 N.C. 469, 96 S.E.2d 438 (1957).

Under the circumstances, the act of an employee in reporting to the union office in this State, accepting a referral slip, and starting upon the trip to the job constituted acceptance of an offer of employment, so that the contract of employment was made and completed in this State. Warren v. Dixon & Christopher Co., 252 N.C. 534, 114 S.E.2d 250 (1960).

Plaintiff, who sought damages for injuries intentionally inflicted by her supervisor immediately after she had orally tendered her resignation, was still an employee as a matter of law at the time of the alleged incident. Daniels v. Swofford, 55 N.C. App. 555, 286 S.E.2d 582 (1982).

Eight-year-old child who did odd jobs as needed in defendant's service station/convenience store business, including stocking cigarettes and drinks and picking up trash, was defendant's employee at the time of accident. Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577, 350 S.E.2d 83, rehearing denied, 318 N.C. 704, 351 S.E.2d 736 (1986).

Evidence that for a number of years, when he was able, and when his son, who ran a roofing business, needed him, decedent provided valuable roofing skills and services for his son, that in exchange for these services, which furthered his business, his son would provide decedent with three to four hundred dollars worth of necessities per month, and that without decedent's skills and services his son would not have been able to afford to provide the three to four hundred dollars worth of necessities per month, even though apart from their business relationship, he may have wanted to help out his father, showed that there existed an implied oral contract of hire between employer-son and employee-father. Dockery v. McMillan, 85 N.C. App. 469, 355 S.E.2d 153, cert. denied, 320 N.C. 167, 358 S.E.2d 49 (1987).

Former employer's subsequent sale of the division for which an injured employee worked to a buyer that later went bankrupt did not, standing alone, divest the North Carolina Industrial Commission of jurisdiction over the employer as the employee's employer at the time of the employee's accident. Goodson v. P.H. Glatfelter Co., 171 N.C. App. 596, 615 S.E.2d 350 (2005).

Evidence was sufficient to establish that a worker was a mason's "employee," as used in G.S. 97-2(2) because an individual with apparent authority hired him, drove him to the job, told him that he would be earning $9.00 an hour paid by means of a check drawn on the account of the employer, and directed the activities of the worker and others while at the job site. Campos-Brizuela v. Rocha Masonry, L.L.C., 216 N.C. App. 208, 716 S.E.2d 427 (2011).

Employment Not Shown. - Where an individual requested the State Game Commission to appoint the plaintiff as a deputy game warden, and after the papers had been mailed out but before they were accepted by plaintiff, he went with said individual to assist in breaking bear traps and was injured while employed in this work, the court would affirm the Commission's holding that there was no employment until after the appointment had been accepted. Birchfield v. Department of Conservation & Dev., 204 N.C. 217, 167 S.E. 855 (1933).

The liability of one to pay, and the right of another to receive, compensation depends upon some appointment or the existence of the relation of employer and employee and is to be determined by the rules governing the establishment of contracts, and no such relation existed between defendant department and game warden who was injured as a result of testifying in a criminal prosecution. Hollowell v. North Carolina Dep't of Conservation & Dev., 206 N.C. 206, 173 S.E. 603 (1934).

Decedent was not an employee within the meaning of subdivision (2) of this section where he had previously been dismissed from defendant's employment but continued to assist his wife when she succeeded him as acting manager of the store, in view of the fact that defendant's agent had no authority to allow decedent to continue working at the store and both decedent and his wife knew that defendant's agent was acting in excess of his authority in permitting decedent to continue working in the store. Lucas v. Li'l Gen. Stores, 289 N.C. 212, 221 S.E.2d 257 (1976).

Payroll services company was not an employer of a furniture company's delivery man because no contractual relationship existed, nor was there any supervision; therefore, the payroll services company was not liable for workers' compensation death benefits. Hughart v. Dasco Transp., Inc., 167 N.C. App. 685, 606 S.E.2d 379 (2005).

Employee was not entitled to workers' compensation benefits because he fraudulently misrepresented that he had not sustained prior back injuries, the employer relied on that representation, and the employer's reliance was a substantial factor in the hiring; because there was actual fraud in obtaining employment, the contract of hire under G.S. 97-2(2) was void ab initio. The employer established that there was a causal connection between the false representation and the injury. Freeman v. J.L. Rothrock, 189 N.C. App. 31, 657 S.E.2d 389 (2008), review granted, appeal dismissed, 676 S.E.2d 46 (2009).

Conclusions About Employer Without Findings Remanded. - Where the Deputy Commissioner concluded, without any findings, that individual was employee's employer and not company, case was remanded for findings on the question whether individual was in fact the alter ego of company, and thus was properly named as the liable employer in the action. Harrelson v. Soles, 94 N.C. App. 557, 380 S.E.2d 528 (1989).

Volunteer Fireman to Be Treated as Employees. - Because the Workers' Compensation Act provides the specific calculation for the average weekly wage to be received by volunteer fireman in subsection (5), it is implicit that volunteer firemen are to be treated as employees under the Act. Hix v. Jenkins, 118 N.C. App. 103, 453 S.E.2d 551 (1995).

Application Of Seagraves Test. - Issue of whether the Seagraves test was properly applied in a case in which an employer denied an injured employee's claim for workers' compensation benefits on the grounds that the employee had been terminated for reasons unrelated to his injury was not resolved by the appellate court; although the test was appropriate if circumstances surrounding termination warranted preclusion or discontinuation of injury related benefits under G.S. 97-32, the commission failed to make the necessary findings or conclusions to explain why it applied Seagraves. Jones v. Modern Chevrolet, 194 N.C. App. 86, 671 S.E.2d 333 (2008).

Costs Award Improper as Employer Was Not Insurer. - Attorney's fees were improperly awarded to a workers' compensation claimant under this section since defendants were not insurers and were not self-insurers as they were not licensed by the North Carolina Commissioner of Insurance. Allred v. Exceptional Landscapes, Inc., 227 N.C. App. 229, 743 S.E.2d 48 (2013).

B. STATE AND MUNICIPAL EMPLOYEES.

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A municipal corporation is subject to the Workers' Compensation Act, even though it employs less than the minimum number of employees under this section, the legislative intent to classify municipal corporations with the State and its political subdivisions being consonant with reason and being indicated by G.S. 97-13, which does not include municipal corporations employing less than the minimum number of employees in listing employers exempt from the act, and G.S. 97-7, which provides that neither the State nor any municipal corporation nor any subdivision of the State nor employees of the same shall have the right to reject the provisions of the act, and it being required that these sections be construed in pari materia to determine the legislative intent. Rape v. Town of Huntersville, 214 N.C. 505, 199 S.E. 736 (1938).

An employee of the State engaged in the cultivation of food crops on lands of the State used by the State Hospital is an employee of the State within the coverage of this section and G.S. 97-13, and his death from an accident arising out of and in the course of his employment is compensable. Barbour v. State Hosp., 213 N.C. 515, 196 S.E. 812 (1938).

CETA Employee. - Where a CETA employee would not otherwise be protected by workers' compensation insurance for a work-related injury, the state governmental unit which hired him and paid the required premiums would be estopped to deny liability therefor, as would its insurance carrier which accepted payment of those premiums. Godley v. County of Pitt, 306 N.C. 357, 293 S.E.2d 167 (1982).

Participant in the federally funded Comprehensive Employment and Training Act (CETA) qualified as an "employee" under this section. Sutton v. Ward, 92 N.C. App. 215, 374 S.E.2d 277 (1988).

A worker employed by a city under a contract stipulating the wages to be received by the worker is an employee of the city within the meaning of this section, and the fact that the city obtains the money to pay the wages from the Reconstruction Finance Corporation is immaterial on the question of the relationship between the worker and the city. Mayze v. Town of Forest City, 207 N.C. 168, 176 S.E. 270 (1934).

A juror, regularly summoned and serving, is not an employee of the county within the meaning of the North Carolina Workers' Compensation Act. Hicks v. Guilford County, 267 N.C. 364, 148 S.E.2d 240 (1966).

Deputized Policeman Aiding in Arrest. - Evidence that claimant was injured while attempting to aid a policeman in serving a warrant for a breach of the peace, and that claimant had been duly deputized by the policeman to aid in making the arrest, was sufficient to support the finding of the Industrial Commission that at the time of injury claimant was an employee of defendant town under a valid appointment. Tomlinson v. Town of Norwood, 208 N.C. 716, 182 S.E. 659 (1935).

Policeman Pursuing Offender beyond Jurisdiction. - For cases decided under this section as it stood prior to the 1949 amendment adding the proviso at the end of the first paragraph of subdivision (2), see Wilson v. Town of Mooresville, 222 N.C. 283, 22 S.E.2d 907 (1942); Taylor v. Town of Wake Forest, 228 N.C. 346, 45 S.E.2d 387 (1947).

Sheriff's Department is Local Governmental Entity. - In the injured party's suit against a sheriff and individual detention officers arising out of a five-day episode in the county detention center where she alleged that they ignored her requests for medical treatment, the trial court properly concluded that the office of North Carolina sheriff was a "person" under 42 U.S.C.S. § 1983 because (1) the State constitution created the office of sheriff, N.C. Const., Art. VII, § 2, but included that provision within the article governing local governments, along with provisions for counties, cities, towns, and other governmental subdivisions, N.C. Const., Art. VII, § 1; (2) state statutes, including G.S. 17E-1, 160A-288.2, 143-166.50, and 97-2, characterized a sheriff's department as a local governmental entity; (3) there was no contention that the State would be potentially liable for any monetary judgment entered against the sheriff and the detention officers; and (4) the State did not have, with respect to a sheriff, the minimum degree of control required for Eleventh Amendment immunity. Boyd v. Robeson County, 169 N.C. App. 460, 621 S.E.2d 1 (2005), cert. denied, 359 N.C. 629, 615 S.E.2d 866 (2005).

Deputy Sheriffs. - The 1939 amendment including deputy sheriffs within the meaning of the term "employee," as used in this section, is not violative of N.C. Const., Art. I, § 32 or Art. II, § 24. Towe v. Yancey County, 224 N.C. 579, 31 S.E.2d 754 (1944).

The provision of c. 277 of the Laws of 1939 that deputy sheriffs shall be deemed employees of the county for the purpose of determining the rights of the parties under the Workers' Compensation Act does not apply to accidents occurring prior to the enactment of the amendment. Clark v. Sheffield, 216 N.C. 375, 5 S.E.2d 133 (1939).

For cases dealing with deputies and decided under this section as it stood prior to the amendment, see Saunders v. Allen, 208 N.C. 189, 179 S.E. 754 (1935); Borders v. Cline, 212 N.C. 472, 193 S.E. 826 (1937); Gowens v. Alamance County, 216 N.C. 107, 3 S.E.2d 339 (1939); Clark v. Sheffield, 216 N.C. 375, 5 S.E.2d 133 (1939).

Trial court did not abuse its discretion in extinguishing a county's subrogation lien against a deputy sheriff regarding a settlement that he received following an injury in the course of his employment because, based upon the fact that the county government was subject to the North Carolina Workers' Compensation Act, G.S. 97-1 et seq., and its provisions regarding payment and compensation under the Act, there was specific statutory authority authorizing the deputy sheriff to seek a determination under G.S. 97-10.2(j) of the county's authority to file a lien against his settlement proceeds. Helsius v. Robertson, 174 N.C. App. 507, 621 S.E.2d 263 (2005), appeal dismissed, review denied, 360 N.C. 363, 629 S.E.2d 851, recons. denied, 360 N.C. 533, 633 S.E.2d 815 (2006).

Police Officers. - Even if plaintiff's preexisting knee condition contributed to the injury, plaintiff's fall while pursuing a fleeing suspect at night was a risk attributable to his employment as a police officer for defendant and was compensable. Mills v. City of New Bern, 122 N.C. App. 283, 468 S.E.2d 587 (1996).

National Guard Training. - North Carolina Industrial Commission erred by awarding a former North Carolina National Guard member workers' compensation benefits as a result of injuries she sustained during training as she was in training pursuant to 32 U.S.C.S. § 502(f), was paid with federal and not state funds and, as a result, was not on State active duty at the time of the injuries. As a result, she was not an employee under G.S. 97-2(2) when she sustained her injuries and, therefore, the Commission lacked subject matter jurisdiction in the case. Baccus v. N.C. Dep't of Crime Control & Pub. Safety, 195 N.C. App. 1, 671 S.E.2d 37 (2009).

Teachers. - A person employed by a graded school district as teacher and director of athletics is an employee of a political subdivision of the State, and is entitled to the benefits of the compensation act under this section. Perdue v. State Bd. of Equalization, 205 N.C. 730, 172 S.E. 396 (1934).

A county board of education is the sole employer of one under contract to teach vocational agriculture in a county school, where such teacher's salary is paid in part from funds furnished as a gift to such board by the State and federal governments, and, as such sole employer, is liable, with its insurance carrier, under this Chapter for the death of such teacher from an injury by accident arising out of and in the course of his employment. Callihan v. Board of Educ., 222 N.C. 381, 23 S.E.2d 297 (1942).

Prisoner. - A prisoner is not an employee as defined by this section. Lawson v. North Carolina State Hwy. & Pub. Works Comm'n, 248 N.C. 276, 103 S.E.2d 366 (1958). See G.S. 97-13(c).

C. REGULAR EMPLOYMENT OF FOUR (NOW THREE) OR MORE.

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Editor's Note. - Most of the annotations below were decided under this section prior to its amendment by Session Laws 1987, c. 729, s. 1, which decreased the regular employment requirement in subdivision (1) from four to three employees.

"Regularly Employed". - The term "regularly employed" connotes employment of the same number of persons throughout the period with some constancy. Patterson v. L.M. Parker & Co., 2 N.C. App. 43, 162 S.E.2d 571 (1968); Cousins v. Hood, 8 N.C. App. 309, 174 S.E.2d 297 (1970); Durham v. McLamb, 59 N.C. App. 165, 296 S.E.2d 3 (1982).

Subdivision (1) of this section does not define "regularly employed." Cousins v. Hood, 8 N.C. App. 309, 174 S.E.2d 297 (1970).

Having five (now three) or more employees is a jurisdictional prerequisite and must appear of record on appeal. Chadwick v. North Carolina Dep't of Conservation & Dev., 219 N.C. 766, 14 S.E.2d 842 (1941); Durham v. McLamb, 59 N.C. App. 165, 296 S.E.2d 3 (1982); Cain v. Guyton, 79 N.C. App. 696, 340 S.E.2d 501, aff'd, 318 N.C. 410, 348 S.E.2d 595 (1986).

If a person does not "regularly employ" five (now four) or more employees, he is not subject to and bound by the act. Cousins v. Hood, 8 N.C. App. 309, 174 S.E.2d 297 (1970).

Whether the employer had the required number of employees is a question of jurisdictional fact, and the reviewing court is required to review and consider the evidence on this matter and make an independent determination thereon. Durham v. McLamb, 59 N.C. App. 165, 296 S.E.2d 3 (1982).

Falling Below Minimum Requirement on Date of Injury. - If an employer has five (now four) or more "regularly employed" employees, the fact that he fell below the minimum requirement on the actual date of injury would not preclude coverage. Patterson v. L.M. Parker & Co., 2 N.C. App. 43, 162 S.E.2d 571 (1968).

Number of workers on the job site on the date of injury, standing alone, is not determinative of the issue. If the defendant had four or more "regularly employed" employees, the fact that he fell below the minimum requirement on the actual date of injury would not preclude coverage. Durham v. McLamb, 59 N.C. App. 165, 296 S.E.2d 3 (1982).

The plaintiff has the burden of proving that the employer regularly employed five (now three) or more employees. Cain v. Guyton, 79 N.C. App. 696, 340 S.E.2d 501, aff'd, 318 N.C. 410, 348 S.E.2d 595 (1986).

Evidence Held Sufficient to Show Minimum Number of Persons Regularly Employed. - Evidence tending to show that the employer regularly employed three persons in his general mercantile business and that for more than two months prior to the accident in suit he had employed two other persons at stated weekly wages to deliver fertilizers by truck in the operation of his mercantile business supported the finding of the Industrial Commission that the employer had five or more persons regularly employed in his business and that he was therefore subject to the Act. Hunter v. Peirson, 229 N.C. 356, 49 S.E.2d 653 (1948), decided prior to 1975 amendment.

Claimant's brother was a "regular employee" of defendant service station operator where he was employed eight days prior to the accident in question to keep one of defendant's stations open at night beyond regular hours to see if this would increase business at the station and had worked for two hours every evening during the eight days, notwithstanding the fact that he was also a full-time State employee; consequently, defendant employer, who also employed four full-time employees at his two service stations, "regularly employed" five persons and was subject to the act. Cousins v. Hood, 8 N.C. App. 309, 174 S.E.2d 297 (1970), decided prior to 1975 amendment.

Plaintiff's testimony, which was corroborated by defendant's records, held competent evidence that defendant regularly employed five (now three) or more employees during the period of plaintiff's employment with defendant and that the Commission thus had jurisdiction. Cain v. Guyton, 79 N.C. App. 696, 340 S.E.2d 501, aff'd, 318 N.C. 410, 348 S.E.2d 595 (1986).

Defendants were subject to the Industrial Commission's jurisdiction where there was evidence that defendants employed, with some constancy, at least four people for the year 1987, even though there were only three regularly employed workers on the day plaintiff was injured. Grouse v. DRB Baseball Mgt., Inc., 121 N.C. App. 376, 465 S.E.2d 568 (1996).

Evidence Insufficient. - Where the record contained no evidence that defendant/"carrier" regularly employed three or more employees, no employer-employee relationship existed within the meaning of the Workers' Compensation Act. Williams v. ARL, Inc., 133 N.C. App. 625, 516 S.E.2d 187 (1999).

D. CASUAL EMPLOYMENT.

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Casual Employment Defined. - Employment is casual when it is irregular, unpredictable, sporadic and brief in nature. Clark v. Waverly Mills, Inc., 12 N.C. App. 535, 183 S.E.2d 855 (1971).

When Casual Employee Is Not Entitled to Compensation. - For an employee to be excluded from benefits under the Workers' Compensation Act his employment must be casual, and in addition thereto, not in the course of the trade, business, profession or occupation of his employer. Clark v. Waverly Mills, Inc., 12 N.C. App. 535, 183 S.E.2d 855 (1971).

When Casual Employee Is Entitled to Compensation. - G.S. 97-13 of this Chapter, providing that the act shall not apply to casual employees, is not totally repugnant to this section, providing for compensation for an injury to an employee while "in the course of the trade, business," etc., and an employee is entitled to compensation even if the employment is casual if he is injured in the course of the trade, business, etc. Johnson v. Asheville Hosiery Co., 199 N.C. 38, 153 S.E. 591 (1930).

The restriction of this Act excluding injuries sustained in casual employment will not exclude an applicant under the provisions of the Act when he sustains injuries in the course of the general trade, business, etc., of the employer and material or expedient therein. Johnson v. Asheville Hosiery Co., 199 N.C. 38, 153 S.E. 591 (1930).

An accident is compensable if it happens in employment incident to the proper operation of a business even if the employment is casual. Boyd v. Mitchell, 48 N.C. App. 219, 268 S.E.2d 252 (1980).

Employment Held Casual. - A plaintiff 's employment for a period of only two days to help prepare for an annual company picnic was strictly a chance employment for a brief period of time. It was not the sort of work that plaintiff could rely upon as a regular source of income. There was no reasonable probability that she would be employed in future years to assist in preparing for the annual picnics. Thus, plaintiff 's employment was "casual" within the meaning of subdivision (2) of this section. Clark v. Waverly Mills, Inc., 12 N.C. App. 535, 183 S.E.2d 855 (1971).

Employment Held Not Casual. - The painting of the interior of a machine room to give the employees therein a better light or for the protection of the permanent structure is not a casual employment and is one in the general course of business, and the act applies to an injury received by a worker engaged in such painting. Johnson v. Asheville Hosiery Co., 199 N.C. 38, 153 S.E. 591 (1930).

Plaintiff who had been employed full-time for three months prior to accident, and who also worked on Saturdays by choice and with the agreement of his employer, was not merely a casual employee. Murray v. Biggerstaff, 81 N.C. App. 377, 344 S.E.2d 550, cert. denied, 318 N.C. 696, 350 S.E.2d 858 (1986).

Employment continuously for five or six weeks in construction of facilities for defendant's plant may not be held to be either casual or not in the course of defendant's business. Smith v. Southern Waste Paper Co., 226 N.C. 47, 36 S.E.2d 730 (1946).

Where the evidence tended to show that the defendant operated a general mercantile business, which included the selling and delivery of commercial fertilizers, and that plaintiffs' intestates had been working for a period of more than two months at stated weekly wages in delivering the fertilizers by truck when they met with a fatal accident arising out of and in the course of their employment, it was held that decedents were not casual employees, and further, that the injury arose within the scope of the employer's regular business, and that therefore they were employees of defendant within the coverage of the Act. Hunter v. Peirson, 229 N.C. 356, 49 S.E.2d 653 (1948).

Eight-year-old child of part-time cashier who sustained an accidental injury on the premises of defendant's convenience store and service station, at which he stayed after school, and at which on some afternoons he did tasks about the place, such as carrying out the garbage, picking up trash and restocking the cigarette, candy and soft drink machines, for which he was paid a dollar or so, was at least a casual employee, whose employment was not excluded by the statute, since the work that he did was required in the operation of defendant's business. Fact that the child was too young to be lawfully employed was irrelevant. Lemmerman v. A.T. Williams Oil Co., 79 N.C. App. 642, 339 S.E.2d 820, aff'd, 318 N.C. 577, 350 S.E.2d 83 (1986).

E. INDEPENDENT CONTRACTORS.

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1. IN GENERAL.

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Act Inapplicable to Independent Contractor. - An independent contractor is not a person included within the terms of the Act, and the Industrial Commission has no jurisdiction to apply the Act to a person who is not subject to its provisions. Richards v. Nationwide Homes, 263 N.C. 295, 139 S.E.2d 645 (1965); Youngblood v. North State Ford Truck Sales, 321 N.C. 380, 364 S.E.2d 433; 322 N.C. 116, 367 S.E.2d 923 (1988)rehearing denied.

To establish that he was covered by the provisions of this Article, a worker had the burden of proving that he was either an employee of a subcontractor or the general contractor, rather than an independent subcontractor. Gordon v. West Constr. Co., 75 N.C. App. 608, 331 S.E.2d 259 (1985).

Meaning of Terms Not Changed. - Except as to public officers, the definition of "employee" contained in this section adds nothing to the common-law meaning of the term. Nor does it encroach upon or limit the common-law meaning of "independent contractor." These terms must be given their natural and ordinary meaning in their accepted legal sense. Hayes v. Board of Trustees, 224 N.C. 11, 29 S.E.2d 137 (1944). See also Hicks v. Guilford County, 267 N.C. 364, 148 S.E.2d 240 (1966).

Common-Law Tests Applicable. - The question whether one employed to perform specified work for another is to be regarded as an independent contractor or as an employee within the operation of the Act is determined by the application of the ordinary common-law tests. Hicks v. Guilford County, 267 N.C. 364, 148 S.E.2d 240 (1966); Youngblood v. North State Ford Truck Sales, 321 N.C. 380, 364 S.E.2d 433, rehearing denied, 322 N.C. 116, 367 S.E.2d 923 (1988).

Whether a person is an independent contractor or an employee within the meaning of the Act is to be determined in accordance with the common law. Scott v. Waccamaw Lumber Co., 232 N.C. 162, 59 S.E.2d 425 (1950).

In the absence of pertinent statutory definitions, whether a person is an independent contractor, or a subcontractor who is an independent contractor, or an employee within the meaning of the act is to be determined by the application of the ordinary common-law tests. Richards v. Nationwide Homes, 263 N.C. 295, 139 S.E.2d 645 (1965).

In determining whether a relationship is one of employer-independent contractor or master and servant, North Carolina applies the common law right of control test. Pinckney v. United States, 671 F. Supp. 405 (E.D.N.C. 1987).

For discussion of the test for determining whether a worker is an employee or an independent contractor, see Denton v. South Mt. Pulpwood Co., 69 N.C. App. 366, 317 S.E.2d 433, cert. denied, 311 N.C. 753, 321 S.E.2d 131 (1984).

Who Is an Independent Contractor. - Generally an independent contractor is one who exercises independent employment and contracts to do a piece of work according to his own judgment and method, without being subject to his employer except as to the results of his work. Smith v. Southern Waste Paper Co., 226 N.C. 47, 36 S.E.2d 730 (1946); McCraw v. Calvine Mills, Inc., 233 N.C. 524, 64 S.E.2d 658 (1951); Millard v. Hoffman, Butler & Assocs., 29 N.C. App. 327, 224 S.E.2d 237, cert. denied, 290 N.C. 551, 226 S.E.2d 510 (1976); Youngblood v. North State Ford Truck Sales, 321 N.C. 380, 364 S.E.2d 433, rehearing denied, 322 N.C. 116, 367 S.E.2d 923 (1988).

When one undertakes to do a specific job under contract and the manner of doing it, including the employment, payment and control of the persons working with or under him, is left entirely to him, he will be regarded as an independent contractor, unless the person for whom the work is being done has retained the right to exercise control in respect to the manner in which the work is to be executed. McCraw v. Calvine Mills, Inc., 233 N.C. 524, 64 S.E.2d 658 (1951); Millard v. Hoffman, Butler & Assocs., 29 N.C. App. 327, 224 S.E.2d 237, cert. denied, 290 N.C. 551, 226 S.E.2d 510 (1976).

An independent contractor has been defined as one who exercises an independent employment, contracts to do a piece of work according to his own judgment and methods, and without being subject to his employer, except as to the result of the work, and who has the right to employ and direct the action of other workers in the prosecution of the work without interference or right of control on the part of his employer. Askew v. Leonard Tire Co., 264 N.C. 168, 141 S.E.2d 280 (1965).

Generally speaking, an independent contractor is one who undertakes to produce a given result, where in the actual execution of the work he is not under the orders or control of the person for whom he does it, and where he may use his own discretion in matters and things not specified. One who represents another only as to the results of a piece of work, and not as to the means of accomplishing it, is an independent contractor and not a servant or employee. Bryson v. Gloucester Lumber Co., 204 N.C. 664, 169 S.E. 276 (1933); Richards v. Nationwide Homes, 263 N.C. 295, 139 S.E.2d 645 (1965).

Elements of Relationship of Employer and Independent Contractor. - The elements which earmark the relationship of employer and independent contractor, are generally as follows: The person employed (a) is engaged in an independent business, calling, or occupation; (b) is to have the independent use of his skill, knowledge, or training in the execution of the work; (c) is doing a specific piece of work at a fixed price, or for a lump sum or upon a quantitative basis; (d) is not subject to discharge because he adopts one method of doing the work rather than another; (e) is not in the regular employ of the other contracting party; (f) is free to use such assistants as he thinks proper; (g) has full control over such assistants; and (h) selects his own time. The presence of no one of these indicia is controlling, nor is the presence of all required. Hayes v. Board of Trustees, 224 N.C. 11, 29 S.E.2d 137 (1944); Morse v. Curtis, 276 N.C. 371, 172 S.E.2d 495 (1970); Pinckney v. United States, 671 F. Supp. 405 (E.D.N.C. 1987).

There are many elements to be considered in determining whether a person in the execution of work for another is an employee or independent contractor, and no particular element is controlling. Askew v. Leonard Tire Co., 264 N.C. 168, 141 S.E.2d 280 (1965).

Right to Control is Crucial. - The right of an employer to supervise and control the activities of one working under him determines to a great extent whether that one is an employee. Hunter v. Hunter Auto Co., 204 N.C. 723, 169 S.E. 648 (1933).

The test is whether the party for whom the work is being done has the right to control the worker with respect to the manner or method of doing the work, as distinguished from the right merely to require certain definite results conforming to the contract. If the employer has the right of control, it is immaterial whether he actually exercises it. Scott v. Waccamaw Lumber Co., 232 N.C. 162, 59 S.E.2d 425 (1950); McCraw v. Calvine Mills, Inc., 233 N.C. 524, 64 S.E.2d 658 (1951); Hicks v. Guilford County, 267 N.C. 364, 148 S.E.2d 240 (1966); Morse v. Curtis, 276 N.C. 371, 172 S.E.2d 495 (1970). See also Hinkle v. City of Lexington, 239 N.C. 105, 79 S.E.2d 220 (1953); Millard v. Hoffman, Butler & Assocs., 29 N.C. App. 327, 224 S.E.2d 237, cert. denied, 290 N.C. 551, 226 S.E.2d 510 (1976).

The test for determining whether a relationship between parties is that of employer and employee, or that of employer and independent contractor, is whether the party for whom the work is being done has the right to control the worker with respect to the manner or method of doing work, as distinguished from the right merely to require certain definite results conforming to the contract. Alford v. Victory Cab Co., 30 N.C. App. 657, 228 S.E.2d 43 (1976).

The dominant factor in determining whether a hired hand is an employee or an independent contractor is the employer's authority to control how the person hired accomplishes the task to be done, and if that right to control exists, it makes no difference that it is not exercised. Youngblood v. North State Ford Truck Sales, 87 N.C. App. 35, 359 S.E.2d 256 (1987), aff'd, 321 N.C. 380, 364 S.E.2d 433 (1988).

As to the distinction between an independent contractor and an employee entitled to benefits, see also Cooper v. Colonial Ice Co., 230 N.C. 43, 51 S.E.2d 889 (1949), citing Johnson v. Asheville Hosiery Co., 199 N.C. 38, 153 S.E. 591 (1930); Creswell v. Charlotte News Publishing Co., 204 N.C. 380, 168 S.E. 408 (1933); Beach v. McLean, 219 N.C. 521, 14 S.E.2d 515 (1941); Hayes v. Board of Trustees, 224 N.C. 11, 29 S.E.2d 137 (1944); Smith v. Southern Waste Paper Co., 226 N.C. 47, 36 S.E.2d 730 (1946); Creighton v. Snipes, 227 N.C. 90, 40 S.E.2d 612 (1946); Bell v. Williamston Lumber Co., 227 N.C. 173, 41 S.E.2d 281 (1947); Perley v. Ballenger Paving Co., 228 N.C. 479, 46 S.E.2d 298 (1948); Youngblood v. North State Ford Truck Sales, 321 N.C. 380, 364 S.E.2d 433, rehearing denied, 322 N.C. 116, 367 S.E.2d 923 (1988).

Question of Law. - On undisputed facts the question whether one is an independent contractor or an employee is one of law reviewable by the court. Beach v. McLean, 219 N.C. 521, 14 S.E.2d 515 (1941).

Whether the facts found by the Commission are supported by competent evidence and whether the facts found by the Commission support the legal conclusion that the injured party was an employee are reviewable by the court as questions of law. Pearson v. Peerless Flooring Co., 247 N.C. 434, 101 S.E.2d 301 (1958).

2. INDIVIDUALS HELD TO BE INDEPENDENT CONTRACTORS.

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Newsboy. - A newsboy engaged in selling papers is held not to be an employee of the newspaper within the meaning of that term as used in this section, the newsboy not being on the newspaper's payroll and being without authority to solicit subscriptions and being free to select his own methods of effecting sales, although some degree of supervision was exercised by the newspaper. Creswell v. Charlotte News Publishing Co., 204 N.C. 380, 168 S.E. 408 (1933).

Hauler of Lumber. - Deceased was an independent contractor where he hauled logs for defendant at a specified rate per thousand, employed his own helpers, and worked in his own way without any direction from defendant. Bryson v. Gloucester Lumber Co., 204 N.C. 664, 169 S.E. 276 (1933).

Electrician Rebuilding Line in "Off " Hours. - Where defendant contracted with plaintiff and two other electricians to rebuild in their "off " hours a part of its electric line for a lump sum of $30.00, the defendant having the holes dug and furnishing the poles, a truck, other tools, and two helpers and requiring that certain trees be not trimmed but disclaiming any knowledge of the work and leaving it up to the electricians, and plaintiff was killed by a live wire while so engaged, and thereafter the remaining electricians secured other help and completed the job, the relationship thus created was that of independent contractor. Hayes v. Board of Trustees, 224 N.C. 11, 29 S.E.2d 137 (1944).

Scallop Shucker. - Where, among other things, plaintiff went to work for defendant employer only when she heard work was available, she received no training or instruction from defendant as to how to shuck scallops, she used her own equipment, she was paid per pound of scallops shucked, she was under minimum supervision and set her own work hours, plaintiff was an independent contractor and not an employee for the purposes of this act. Spencer v. Johnson & Johnson, Seafood, Inc., 99 N.C. App. 510, 393 S.E.2d 291 (1990).

Hauler of Sand, Gravel and Concrete. - The evidence tended to show that deceased was a licensed contract hauler, and was engaged to haul sand, gravel and concrete from defendant's bins to defendant's concrete mixer along a route selected by defendant, but that defendant had no control over the number of hours deceased worked or whether deceased drove his own truck or employed a driver, and that deceased paid for his own gas and oil and made his own repairs to his truck. Deceased was paid a stipulated sum per load and was also paid the hourly wage of truck driver employed by defendant for time lost waiting in line when the concrete mixer broke down. Deceased was killed when struck by a train at a grade crossing while hauling for defendant on the route selected. It was held that, upon the evidence, deceased was an independent contractor and not an employee within the meaning of this section, and the judgment of the superior court affirming the award of compensation by the Industrial Commission, was reversed. Perley v. Ballenger Paving Co., 228 N.C. 479, 46 S.E.2d 298 (1948).

Carpet Installer. - A carpet installer who was basically free to set his own hours and determine which days of the week he worked, who was paid on a per-yard basis through a check voucher system which defendant employer used to pay independent contractors and bills of local vendors, who filed self-employment tax with his income tax return, who had considerable leeway in the manner in which he did his job, and whose occupation required special skill and training, was an independent contractor under the Workers' Compensation Act. Ramey v. Sherwin-Williams Co., 92 N.C. App. 341, 374 S.E.2d 472 (1988).

Taxi Driver. - Taxi driver was not a company's employee, for workers' compensation purposes, because, inter alia, the driver's agreement with the company said the driver was an independent contractor, even though the company required the driver to use certain equipment, which the company provided, required the taxi to be painted yellow, and the working relationship could be terminated at any time. Ademovic v. Taxi USA, LLC, 237 N.C. App. 402, 767 S.E.2d 571 (2014).

Taxi driver was not a company's employee, for workers' compensation purposes, because, inter alia, the driver kept all fares and tips and was not paid wages, but paid the company a franchise fee, even though the company required the driver to use certain equipment, which the company provided, required the taxi to be painted yellow, and the working relationship could be terminated at any time. Ademovic v. Taxi USA, LLC, 237 N.C. App. 402, 767 S.E.2d 571 (2014).

Taxi driver was not a company's employee, for workers' compensation purposes, because, inter alia, the driver could decide the driver's own work schedule, even though the company required the driver to use certain equipment, which the company provided, required the taxi to be painted yellow, and the working relationship could be terminated at any time. Ademovic v. Taxi USA, LLC, 237 N.C. App. 402, 767 S.E.2d 571 (2014).

Taxi driver was not a company's employee, for workers' compensation purposes, because, inter alia, the driver did not have to use the company's dispatch services, even though the company required the driver to use certain equipment, which the company provided, required the taxi to be painted yellow, and the working relationship could be terminated at any time. Ademovic v. Taxi USA, LLC, 237 N.C. App. 402, 767 S.E.2d 571 (2014).

Taxi driver was not a company's employee, for workers' compensation purposes, because, inter alia, the driver owned the taxi, for which the driver paid taxes, insurance, and maintenance, and which the driver could use as the driver chose when not accepting a fare, even though the company required the driver to use certain equipment, which the company provided, required the taxi to be painted yellow, and the working relationship could be terminated at any time. Ademovic v. Taxi USA, LLC, 237 N.C. App. 402, 767 S.E.2d 571 (2014).

3. INDIVIDUALS HELD NOT TO BE INDEPENDENT CONTRACTORS.

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Operator of Service Station. - Deceased operated a service station for defendant on a commission basis, being required to keep the place open at certain hours, being told to whom to give credit, and being under the control of the president of the defendant company. The commission's conclusion that deceased was an employee was sustained. Russell v. Western Oil Co., 206 N.C. 341, 174 S.E. 101 (1934).

Salesman. - Deceased, at the time of his fatal injury, was engaged in selling the products of defendant. Letters to him from defendant's home office were introduced in evidence, which letters contained instructions for the collection of an account which, as an exception, had been charged directly to the purchaser by defendant, as was a letter stating that defendant would fill his orders C.O.D. without deducting commissions, and at the end of the week would then figure his commissions and send him a check therefor plus any difference "to make up the $25.00 salary," and also stating that a certain sum was due for social security and asking for his social security number. It was held that the evidence, with other evidence in the case, was sufficient to support the finding of the Industrial Commission that the deceased was an employee of the defendant, and not a jobber or independent contractor. Cloninger v. Ambrosia Cake Bakery Co., 218 N.C. 26, 9 S.E.2d 615 (1940).

Salesman Conducting Training in Use of Equipment. - Although plaintiff possessed specialized skill in the use of equipment which he sold and was training others to use when he was injured, as defendant retained the right to control the details of plaintiff 's work by paying him on a time basis, providing all materials and assistance which he needed, setting his hours of work, and retaining the right to discharge him at any time, an employment relationship therefore existed between plaintiff and defendant at the time of plaintiff 's injury. Youngblood v. North State Ford Truck Sales, 321 N.C. 380, 364 S.E.2d 433, rehearing denied, 322 N.C. 116, 367 S.E.2d 923 (1988).

Machinist Constructing Conveyor under Contract. - Where evidence tended to show that deceased, a machinist, contracted to construct a conveyor from materials furnished by defendant and in accordance with his rough sketch, hourly wages being the basis of his pay, and the parties appeared to have treated the contract as one of employment, such evidence was sufficient to sustain the finding of the Commission that deceased was an employee and not an independent contractor. Smith v. Southern Waste Paper Co., 226 N.C. 47, 36 S.E.2d 730 (1946).

Deliveryman for Ice Company. - Deceased employee was a deliveryman for defendant ice company. Defendant furnished a horse and wagon and all necessary equipment. Each morning in season, deceased obtained a load of ice for which he was charged. It was sold at defendant's regular retail price, and deceased was credited with the amount unsold at the end of the day. These facts were held sufficient to establish an employer-employee relation upon which the award of compensation was based. Cooper v. Colonial Ice Co., 230 N.C. 43, 51 S.E.2d 889 (1949), distinguishing Creswell v. Charlotte News Publishing Co., 204 N.C. 380, 168 S.E. 408 (1933).

Director of Sawmill Operations. - Evidence tending to show that defendant lumber company operated a sawmill as a part of its general business, that it owned the sawmill, controlled the premises where the work was performed, determined the amount of work to be done, and gave directions on occasion as to the dimensions of the lumber to be sawed, and that the person directing the sawmill operations worked exclusively for the lumber company, which had the power to discharge him at any time with or without cause, was held sufficient to support a finding that the director of the sawmill operations was a supervisory employee and not an independent contractor. Scott v. Waccamaw Lumber Co., 232 N.C. 162, 59 S.E.2d 425 (1950).

Mechanic Supervising Installation Under Contract. - Where findings included the fact that the seller of materials for construction of dry kilns recommended upon purchaser's request an expert mechanic to supervise their installation under contractual agreement that such mechanic should be considered an employee of the purchaser, and that the mechanic was merely supervising installation of the kilns because the purchaser had no foreman with sufficient experience and skill to supervise the installation in accordance with the plans and specifications furnished by the seller, such findings supported the legal conclusion that the mechanic was an employee of the purchaser rather than an independent contractor. Pearson v. Peerless Flooring Co., 247 N.C. 434, 101 S.E.2d 301 (1958).

Cable and Internet Installer. - Dismissal of an employee's claim for workers' compensation benefits on the grounds that he worked for the employer as a subcontractor in installing cable television and internet service was improper under G.S. 97-2(2) because the greater weight of the evidence showed that the employer exerted the degree of control of the employee's that was characteristic of an employer's control over an employee. Capps v. Southeastern Cable, 214 N.C. App. 225, 715 S.E.2d 227 (2011).

Painter. - Plaintiff in painting defendant's mill was not an independent contractor where it appeared that defendant directed plaintiff 's work, hired his helpers and purchased his supplies. Johnson v. Asheville Hosiery Co., 199 N.C. 38, 153 S.E. 591 (1930).

Where plaintiff was a painter of long experience, who had consistently worked for others for fixed hourly wages, and did not hold himself out as a painting contractor, and during his long experience had only once done a painting job for a lump sum, and it was inferred that he was employed by defendant employer because of the quality of his individual work, that he was not to employ or delegate the work to others, and that he was to be paid an hourly wage for such time as he worked, it was held that he was an employee rather than an independent contractor. Askew v. Leonard Tire Co., 264 N.C. 168, 141 S.E.2d 280 (1965).

Tractor Trailer Driver. - An employment relationship existed between plaintiff/driver and defendant/truck company where defendant deducted taxes, health insurance and social security costs from driver's checks, where "Contract Driver Handbook" set out provisions exercising control of plaintiff's time and manner of performance, and where trucks were owned, insured and maintained by defendant. Barber v. Going West Transp., Inc., 134 N.C. App. 428, 517 S.E.2d 914 (1999).

The lessor-driver, under a trip-lease agreement with an interstate commerce carrier, is deemed to be an employee of the carrier, for workers' compensation purposes, while operating the equipment under the carrier's Interstate Commerce Commission authority. Smith v. Central Transp., 51 N.C. App. 316, 276 S.E.2d 751 (1981).

Taxi Drivers. - Taxi drivers were employees of a taxi service company for purposes of the Workers' Compensation Act, not independent contractors, because they did not rent taxis from the company, could not set their own wages and were required to give the company 50 percent of their fares, could not set their work schedules, and, with a few exceptions, could not drive the taxi for personal use. J.D. Mills v. Triangle Yellow Transit, 230 N.C. App. 546, 751 S.E.2d 239 (2013).

F. EMPLOYEES OF INDEPENDENT CONTRACTORS AND SUBCONTRACTORS.

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Employee of Independent Contractor Cannot Recover against Principal. - Compensation is recoverable only against the employer of the injured worker, and therefore if the worker is an employee of an independent contractor, the employer of the independent contractor cannot be held liable for compensation. Scott v. Waccamaw Lumber Co., 232 N.C. 162, 59 S.E.2d 425 (1950). But see G.S. 97-19.

Subdivision (1) of this Section Modified by G.S. 97-19. - As a general proposition the only private employments covered by the Workers' Compensation Act are those "in which five (now four) or more employees are regularly employed in the same business or establishment." But this general rule is subject to the exception created by G.S. 97-19, which was manifestly enacted to protect the employees of financially irresponsible subcontractors who do not carry workers' compensation insurance, and to prevent principal contractors, immediate contractors, and subcontractors from relieving themselves of liability under the act by doing through subcontractors what they would otherwise do through the agency of direct employees. Withers v. Black, 230 N.C. 428, 53 S.E.2d 668 (1949).

The North Carolina Workers' Compensation Act provides compensation to an injured plaintiff only if he is an "employee" of an insured employer, in fact and in law, at the time of the injury. An exception to the general rule is that the Act creates liability for a general contractor under G.S. 97-19. Carroll v. Daniels & Daniels Constr. Co., 327 N.C. 616, 398 S.E.2d 325 (1990).

Secondary Liability of Contractor to Employees of Subcontractor. - Where a contractor sublets a part of the contract to a subcontractor without requiring from the subcontractor a certificate that he has procured compensation insurance or has satisfied the Industrial Commission of his financial responsibility as a self-insurer under G.S. 97-93, such contractor is properly held secondarily liable for compensation to an employee of the subcontractor, even though the contractor regularly employs less than five employees. Withers v. Black, 230 N.C. 428, 53 S.E.2d 668 (1949).

For cases in which claimants were held employees of independent contractors, see Beach v. McLean, 219 N.C. 521, 14 S.E.2d 515 (1941); McCraw v. Calvine Mills, Inc., 233 N.C. 524, 64 S.E.2d 658 (1951).

Agreement Changing Status of Independent Contractor to Foreman. - Defendant partners, general contractors, had sublet electrical work to one Elkins who had less than five employees, one of whom was plaintiff claimant. Elkins, having figured too low, persuaded defendants to let him go ahead under a new agreement whereby defendants were to pay for the materials and labor. There was evidence that one of the defendants was on the job "practically all the time" and that he gave instructions as to changing the location of some fixtures but not otherwise. It was held, three judges dissenting, that there was sufficient evidence to sustain the finding that Elkins became a mere foreman on this job and that plaintiff was defendants' employee. Graham v. Wall, 220 N.C. 84, 16 S.E.2d 691 (1941).

Estoppel of Carrier to Deny Employment Relationship. - Where a contractor and subcontractor had agreed that members of the subcontractor's work crew would be considered as "employees" of the contractor while working on a highway construction project, and the contractor was reimbursed by the subcontractor for wages it paid to the crew and for workers' compensation insurance premiums it paid on those wages upon the Industrial Commission's finding that a member of the subcontractor's work crew killed while working on the highway project, was in fact an employee of the subcontractor, the contractor's workers' compensation insurance carrier was estopped to deny that it was liable for a portion of the workers' compensation benefits due because of the employee's death if it accepted premiums for workers' compensation insurance on the deceased employee. Britt v. Colony Constr. Co., 35 N.C. App. 23, 240 S.E.2d 479 (1978).

Remand for Further Findings. - Where men working on lumbering jobs were injured it was contended that they were not in the employ of defendant but of independent subcontractors with whom the defendant had written agreements. The Commission found that the purported subcontractors were on the defendant's payroll (one as a superintendent) and that the injured men ate at a camp bearing defendant's name and received their pay by check direct from defendant; accordingly that the men were employees of, and entitled to compensation from, defendants. The Supreme Court remanded the cause for more specific findings of fact as to the making and performance of the alleged contract with "subcontractors" and as to the relationship of the parties, and for a separate finding of law as to who was the employer of claimants. Farmer v. Bemis Lumber Co., 217 N.C. 158, 7 S.E.2d 376 (1940); Cook v. Bemis Lumber Co., 217 N.C. 161, 7 S.E.2d 378 (1940).

While the evidence in a workers' compensation proceeding would have supported the Industrial Commission's conclusion that defendant insurer was estopped to deny that a pulpwood cutter was acting as an employee of the two defendant woodyards at the time of his death by accident while cutting pulpwood, the Commission's findings of fact were insufficient to support such conclusion, and the proceeding was therefore remanded for further findings of fact and conclusions of law based on the record. Allred v. Piedmont Woodyards, Inc., 32 N.C. App. 516, 232 S.E.2d 879 (1977).

G. EMPLOYEES LENT BY EMPLOYER.

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Special Employer Relationship. - There was an issue of fact regarding whether a decedent, who was actually employed by a company other than the alleged special employer against whom suit was brought, amounted to a "special employee" subject to the exclusivity provision in G.S. 97-10.1. The employer and the special employer entered into a contract stating that employees assigned to the special employer were not employees of the special employer but were employees of the employer itself, and the special employer agreed contractually that the employer itself would control and direct the decedent's work. Taft v. Brinley's Grading Servs., 225 N.C. App. 502, 738 S.E.2d 741 (2013).

Test of Employment. - Because of the statutory requirement that the employment be under an "appointment or contract of hire," the first question which must be answered in determining whether a lent employee has entered into an employment relationship with a special employer for purposes of this Act is: Did he make a contract of hire with the special employer? If this question cannot be answered "yes," the investigation is closed, and this must necessarily be so, since the employee loses certain rights along with those he gains when he strikes up a new employment relation. Collins v. James Paul Edwards, Inc., 21 N.C. App. 455, 204 S.E.2d 873, cert. denied, 285 N.C. 589, 206 S.E.2d 862 (1974).

The test for determining the liability of special employers in loaned employee cases is stated as follows: When a general employer lends an employee to a special employer, the special employer becomes liable for workers' compensation only if (a) the employee has made a contract of hire, express or implied, with the special employer; (b) the work being done is essentially that of the special employer; and (c) the special employer has a right to control the details of the work. When all three of the above conditions are satisfied in relation to both employers, both employers are liable for workers' compensation. Henderson v. Manpower of Guilford County, Inc., 70 N.C. App. 408, 319 S.E.2d 690 (1984); Anderson v. Texas Gulf, Inc., 83 N.C. App. 634, 351 S.E.2d 109 (1986).

The three-prong "special employer" test as set out in Collins v. Edwards, 21 N.C. App. 455, 204 S.E.2d 873 (1974), is used to determine whether an employee may be deemed to have joint employers for purposes of the Worker's Compensation Act. Anderson v. Demolition Dynamics, Inc., 136 N.C. App. 603, 525 S.E.2d 471 (2000).

Employee showed the employee was employed by two employers because the employee established an implied contract between the employee and employer one, which controlled the employee's work that was that of this employer's, and that employer one paid employer two for the employee's work, as employer one hired the employee, the employee traveled to that employer's office to apply for work, that employer's accounting manager said the employee would work for that employer, a preprinted application listed that employer as the prospective employer, that employer trained and supervised the employee, and that employer controlled where the employee worked, while the employee's tax form, pay statements, employment verification form, and payroll authorization for automatic deposit listed employer two as the employer. McGuine v. Nat'l Copier Logistics, LLC, - N.C. App. - , 841 S.E.2d 333 (2020).

No Lent Employment Shown. - Industrial Commission did not err in finding that the claimant was not an employee of the company at the time of her injury under the lent employment doctrine; there was no express contract of hire between the claimant and the company, and the agreement between the company and the business stated that all personnel would be considered employees of the business, the claimant was hired, paid, and supervised by the business, and the claimant failed to show that the company exercised control over the business's employees. Whicker v. Compass Group USA, Inc., 246 N.C. App. 791, 784 S.E.2d 564 (2016).

Presumption Regarding Continuance of General Employment. - In lent employee cases, the only presumption is the continuance of the general employment, which is taken for granted as the beginning point of any lent-employee problem. To overcome this presumption, it is not unreasonable to insist upon a clear demonstration that a new temporary employer has been substituted for the old. Failing this, the general employer should remain liable. Anderson v. Texas Gulf, Inc., 83 N.C. App. 634, 351 S.E.2d 109 (1986).

Consent to New Employment Relationship Not Shown. - Where there was no evidence nor any contention that a truck driver employed by a firm and a special contractor using the firm's trucks ever expressly consented to enter into any employment relationship with each other, and certainly there was no express "appointment or contract of hire" entered into between them, the facts did not show such acceptance by the driver of control and direction by the contractor's employees over his activities as a truck driver for the original employer as to warrant the conclusion that he impliedly consented to enter into a new and special employment relationship with the contractor. Collins v. James Paul Edwards, Inc., 21 N.C. App. 455, 204 S.E.2d 873, cert. denied, 285 N.C. 589, 206 S.E.2d 862 (1974).

"Contract for Employment" Prong of the Special Employer Test. - Although decedent, after being contacted by the second company, sought permission from the owner of the first company to work at the site of the second company and allegedly "accepted that assignment" by coming to the site, these actions standing alone did not conclusively satisfy the "contract for employment" prong of the special employer test necessary for proving an employer-employee relationship. Anderson v. Demolition Dynamics, Inc., 136 N.C. App. 603, 525 S.E.2d 471 (2000).

Lessee of Truck Held Liable for Compensation for Death of Driver. - Deceased was employed by X to drive a truck owned by X, but leased to other haulers and under their control. While in the course of hauling goods for one of the lessees, deceased met his death. The lease contract had provided that X provide compensation insurance. The court, in holding the lessee liable, found that such a contract could not be binding upon the employee as he was not a party to it. Whether the lessee could recover from X the amount the lessee was required to pay was not answered by the court. Roth v. McCord, 232 N.C. 678, 62 S.E.2d 64 (1950).

H. APPRENTICES.

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CETA Employee. - Participant in the federally funded Comprehensive Employment and Training Act (CETA) qualified as an "apprentice" under this section. Sutton v. Ward, 92 N.C. App. 215, 374 S.E.2d 277 (1988).

As a matter of law, the participants in a laboratory assistantship program were acting as "apprentices" undergoing on-the-job training and hence would be considered employees subject to the provisions of workers' compensation. Wright v. Wilson Mem. Hosp., 30 N.C. App. 91, 226 S.E.2d 225, cert. denied, 290 N.C. 668, 228 S.E.2d 459 (1976).

While plaintiff may have been a student at a technical institute, when he entered the hospital to perform respiratory therapy, his status changed to apprentice, making him subject to the Workers' Compensation Act. Ryles v. Durham Co. Hosp. Corp., 107 N.C. App. 455, 420 S.E.2d 487, cert. denied, 333 N.C. 169, 424 S.E.2d 406 (1992).

I. AGRICULTURE.

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The line of demarcation between agricultural and nonagricultural employment often becomes extremely attenuated, and the question in marginal factual situations must frequently turn upon whether the employment is a separable, commercial enterprise rather than a purely agricultural undertaking. Hinson v. Creech, 286 N.C. 156, 209 S.E.2d 471 (1974).

Departure from Agriculture. - When a farmer departs from his agricultural pursuits and clearly enters into a service business or another business remote from the direct production of agricultural products, his services cease to be "agriculture" within the meaning of subdivision (1) of this section. Hinson v. Creech, 286 N.C. 156, 209 S.E.2d 471 (1974).

The commercial processing of agricultural commodities for seed is not an agricultural activity. Murray v. Biggerstaff, 81 N.C. App. 377, 344 S.E.2d 550, cert. denied, 318 N.C. 696, 350 S.E.2d 858 (1986).

Plaintiff, who was employed to process oats, soybeans and barley through the gin process, and to do other work incidental to the ginning operation, was not a farm laborer under G.S. 97-13(b), and the fact that plaintiff was operating a tractor in a field in which crops were eventually to be planted when he was injured, during a one-time excursion out of the ginning process and into an activity more akin to farming or agricultural labor, did not interrupt his compensation coverage. Murray v. Biggerstaff, 81 N.C. App. 377, 344 S.E.2d 550, cert. denied, 318 N.C. 696, 350 S.E.2d 858 (1986).

Employees Held Not to Be Farm Laborers. - Where employee cleaned, graded, packaged and delivered eggs, kept records and collected for eggs delivered, her duties were sufficiently removed from the normal process of agriculture to prevent her exclusion from coverage as a "farm laborer." Hinson v. Creech, 286 N.C. 156, 209 S.E.2d 471 (1974).

When employers formed a business association with a registered trade name and sought to increase the profits of the business by selling and delivering eggs over stated routes to stores, institutions and individuals, thus subjecting their employees to the daily hazards of operating a motor vehicle upon the highways to places far removed from the farm, employers' business ceased to be agriculture and became part and parcel of the activities of the marketplace. Hinson v. Creech, 286 N.C. 156, 209 S.E.2d 471 (1974).

J. SAWMILLS AND LOGGING.

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For case involving injury to brakeman on a train used exclusively for moving timber from defendant's land to its mill, which was treated by the court as one for negligence and in which the Workers' Compensation Act was not mentioned, see Bateman v. Brooks, 204 N.C. 176, 167 S.E. 627 (1933).

K. NATIONAL GUARD.

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Injury During Initial Training. - Plaintiff was an employee of the State when he was injured at federal mandatory initial training, required before serving as a member of the National Guard by 10 U.S.C. § 511(d) (which did not exist when the second sentence of this subsection was written), and accordingly was entitled to compensation under the Worker's Compensation Act because his injury arose out of and in the course of his employment with the National Guard. Britt v. North Carolina Dep't of Crime Control & Pub. Safety, 108 N.C. App. 777, 425 S.E.2d 11 (1993).

Weekend Drill. - Plaintiff, injured while performing his duties as a member of the National Guard on a routine weekend drill, was entitled to worker's compensation for injuries. Duncan v. North Carolina Dep't of Crime Control & Pub. Safety, 113 N.C. App. 184, 437 S.E.2d 654 (1993).

Employment Found. - Plaintiff was a private in the National Guard. He was paid 50 › per drill by the State and $1.00 per week by the federal government. Although his services were voluntary, he was required to sign an enlistment contract which subjected him to the direction and control of the State. It was held that claimant was an employee. Baker v. State, 200 N.C. 232, 156 S.E. 917 (1931), decided prior to the 1943 amendment adding the second sentence of subdivision (2).

L. EXECUTIVES.

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Where a corporate employer with less than the minimum number of employees procures a policy of compensation insurance, such employer is presumed to have accepted the provisions of the Act, and such policy covers its executive officers notwithstanding the premium on the policy is based on the compensation of a single nonexecutive employee and the parties intended to cover him only, unless notice of nonacceptance by the executive officers is duly filed with the Industrial Commission. Laughridge v. South Mt. Pulpwood Co., 266 N.C. 769, 147 S.E.2d 213 (1966).

Prior Law. - For cases involving executives, decided before the passage of Session Laws 1955, c. 1055, making executives employees, see Hodges v. Home Mtg. Co., 201 N.C. 701, 161 S.E. 220 (1931); Hunter v. Hunter Auto Co., 204 N.C. 723, 169 S.E. 648 (1933); Jones v. Planters' Nat'l Bank & Trust Co., 206 N.C. 214, 173 S.E. 595 (1934); Nissen v. City of Winston-Salem, 206 N.C. 888, 175 S.E. 310 (1934); Rowe v. Rowe-Coward Co., 208 N.C. 484, 181 S.E. 254 (1935); Gassaway v. Gassaway & Owen, Inc., 220 N.C. 694, 18 S.E.2d 120 (1942); Pearson v. Newt Pearson, Inc., 222 N.C. 69, 21 S.E.2d 879 (1942).

M. WORKERS ON RELIEF.

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Person Recovering Federal Relief Held Not an Employee. - A person furnished work for the relief of himself and his family and paid with funds provided by the Federal Relief Administration is not an "employee" of the relief administrative agencies within the meaning of this section. Jackson v. North Carolina Emergency Relief Admin., 206 N.C. 274, 173 S.E. 580 (1934). See also Barnhardt v. City of Concord, 213 N.C. 364, 196 S.E. 310 (1938).

But a different result was reached when the injured party was employed by the superintendent of the water and light department of defendant town and paid from funds loaned defendant by the Reconstruction Finance Corporation. Mayze v. Town of Forest City, 207 N.C. 168, 176 S.E. 270 (1934).

III. AVERAGE WEEKLY WAGES.

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A. IN GENERAL.

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The intent of the Act is to base compensation upon the normal income which the employee derived from his employment. Lovette v. Reliable Mfg. Co., 262 N.C. 288, 136 S.E.2d 685 (1964).

It seems reasonable that the legislature, having placed the economic loss caused by a worker's injury upon the employer for whom he was working at the time of the injury, would also relate the amount of that loss to the average weekly wages which that employer was paying the employee. Wallace v. Music Shop, II, Inc., 11 N.C. App. 328, 181 S.E.2d 237 (1971).

Requirements Under This Section. - There is no requirement of actual disablement in the asbestosis statutes, but the Commission must make findings sufficient to support its award of plaintiff's average weekly wage. Clark v. ITT Grinnell Indus. Piping, Inc., 141 N.C. App. 417, 539 S.E.2d 369 (2000).

Results Must Be Fair and Just to Both Parties. - The dominant intent of subdivision (5) of this section is that results fair and just to both employer and employee be obtained. Joyner v. A.J. Carey Oil Co., 266 N.C. 519, 146 S.E.2d 447 (1966).

The Commission's calculation of plaintiff's average weekly wage was upheld where the Commission rejected the method used by the Moore court as unfair to the parties, relied upon plaintiff's earnings during his last year of employment, instead, and supported its decision based on the language of G.S. 97-2. Austin v. Continental General Tire, 141 N.C. App. 397, 540 S.E.2d 824 (2000), rev'd on other grounds, 354 N.C. 344, 553 S.E.2d 680 (2001).

Industrial Commission erred in calculating an employee's average weekly wage for her temporary total disability benefits because particular method used (Method 3) squarely conflicted with the statute's unambiguous command to use a methodology that would most nearly approximate the amount which the injured employee would be earning were it not for the injury and was not A. In General. to the employee where it only took into account the part-time work the employee completed at a lower hourly rate, ignored the uncontested fact that she worked, post-injury, at a higher hourly wage and frequency, and would effectively treat the employee as if she had never worked increased hours at a higher rate of pay. Ball v. Bayada Home Health Care, 255 N.C. App. 1, 803 S.E.2d 692 (2017).

Earnings and Not Earning Capacity Are Basis for Award. - Under subdivision (5) of this section, "average weekly wages" of the employee "in the employment in which he was working at the time of the injury" are based on his earnings rather than his earning capacity. Liles v. Faulkner Neon & Elec. Co., 244 N.C. 653, 94 S.E.2d 790 (1956).

Compensation Is Based on "Average Weekly Wages". - Under the Workers' Compensation Act, compensation for the injury or death of an employee is based on his average weekly wages. Lovette v. Reliable Mfg. Co., 262 N.C. 288, 136 S.E.2d 685 (1964).

Without Regard for Artificial Maximum on Income Imposed on Social Security Recipient. - To compute the plaintiff 's average weekly wage from a consideration of the fact that he had an artificial maximum of $1680.00 placed on his earnings because he was retired and drawing social security benefits would not only produce results unfair to the employee but would ignore the well-established principle that an injured employee's average weekly wage must be computed from his actual earnings in the employment in which he is injured rather than his earning capacity. Wallace v. Music Shop, II, Inc., 11 N.C. App. 328, 181 S.E.2d 237 (1971).

The determination of the plaintiff's 'average weekly wages' requires application of G.S. 97-2(5) and case law and thus raises an issue of law; thus, any mistake made by either of the parties is not a basis for setting the agreement aside. Swain v. C & N Evans Trucking Co., 126 N.C. App. 332, 484 S.E.2d 845 (1997).

Subdivision (5) provides five possible methods of determining average weekly wages (the first three methods as specified in the first, second and third sentences of the first paragraph, respectively; the fourth method as specified in the second paragraph; and the fifth method, that specified for disabling injury to volunteer firemen). Barnhardt v. Yellow Cab Co., 266 N.C. 419, 146 S.E.2d 479 (1966), decided under subdivision (5) as it read in 1966.

And establishes a clear order of preference. When the first method of compensation can be used, it must be used. Hensley v. Caswell Action Comm., Inc., 296 N.C. 527, 251 S.E.2d 399 (1979).

"Results fair and just," within the meaning of the proviso to the second sentence of subdivision (5), consist of such "average weekly wages" as will most nearly approximate the amount which the injured employee would be earning were it not for the injury, in the employment in which he was working at the time of his injury. Liles v. Faulkner Neon & Elec. Co., 244 N.C. 653, 94 S.E.2d 790 (1956); Joyner v. A.J. Carey Oil Co., 266 N.C. 519, 146 S.E.2d 447 (1966); Wallace v. Music Shop, II, Inc., 11 N.C. App. 328, 181 S.E.2d 237 (1971).

It is true that all provisions of subdivision (5) must be considered in order to ascertain the legislative intent; and the dominant intent is that results fair and just to both parties be obtained. Ordinarily, whether such results will be obtained by the second method is a question of fact, and in such case a finding of fact by the Commission controls decision. However, this does not apply if the finding of fact is not supported by competent evidence or is predicated on an erroneous construction of the statute. Liles v. Faulkner Neon & Elec. Co., 244 N.C. 653, 94 S.E.2d 790 (1956).

When Special Method of Computation Employed. - When, in determining the amount to be awarded the dependents of a deceased employee, the methods of computing the "average weekly wage" enumerated in the first paragraph of subdivision (5) of this section would be unfair because of exceptional circumstances, the Industrial Commission is authorized by the second paragraph of said subdivision to use such other method of computation as would most nearly approximate the amount which the employee would be earning if living; the provisions of the second paragraph apply to all three of the methods of computation enumerated in the first paragraph, and such other method of computation may be invoked for exceptional reasons even though the employee had been constantly employed by the employer for 52 weeks prior to the time of the injury causing death. Early v. W. H. Basnight & Co., 214 N.C. 103, 198 S.E. 577 (1938). See also Liles v. Faulkner Neon & Elec. Co., 244 N.C. 653, 94 S.E.2d 790 (1956); Barnhardt v. Yellow Cab Co., 266 N.C. 419, 146 S.E.2d 479 (1966).

The words "the foregoing" in the second paragraph of subdivision (5) clearly refer to the preceding paragraph. Clark v. Burton Lines, 272 N.C. 433, 158 S.E.2d 569 (1968).

Limitation on Use of Fourth Method of Computing Average Weekly Wage. - The fourth prescribed method of computing the employee's average weekly wage may not be used unless there has been a finding that use of the second method would produce results unfair and unjust to either the employee or employer. Wallace v. Music Shop, II, Inc., 11 N.C. App. 328, 181 S.E.2d 237 (1971).

Unusually severe or totally disabling injuries are not the exceptional reasons contemplated by the fourth method of subdivision (5). Barnhardt v. Yellow Cab Co., 266 N.C. 419, 146 S.E.2d 479 (1966).

"Exceptional Reasons." - "Exceptional reasons" method of calculating an injured employee's average weekly wage, under G.S. 97-2(5), could only be utilized subsequent to a finding that the methods stated previously in the statute were either inapplicable, or were applicable but would fail to produce results fair and just to both parties. Conyers v. New Hanover County Sch., 188 N.C. App. 253, 654 S.E.2d 745 (2008).

Fourth Method Sets Standard. - Fourth method of subdivision (5), while it prescribes no precise method for computing "average weekly wages," sets up a standard to which results fair and just to both parties must be related. Barnhardt v. Yellow Cab Co., 266 N.C. 419, 146 S.E.2d 479 (1966).

Average Weekly Wages Determined by Earnings in Employment in Which Injured. - Average weekly wages must ordinarily be determined by the employee's actual earnings in the employment in which he was injured during the 52 weeks, or such lesser period as he may have worked, immediately preceding his injury. Lovette v. Reliable Mfg. Co., 262 N.C. 288, 136 S.E.2d 685 (1964).

The intent of the legislature that average weekly wages determined by the fourth method be related to the employment in which the employee was injured is evidence by the fifth method, which relates only to a volunteer fireman injured "under compensable circumstances." Barnhardt v. Yellow Cab Co., 266 N.C. 419, 146 S.E.2d 479 (1966).

By computing the plaintiff 's average weekly wage from his earnings from the employment in which he was injured, the employer's liability is in direct proportion to his payroll and the insurance premiums based thereon. This is fair and just. Wallace v. Music Shop, II, Inc., 11 N.C. App. 328, 181 S.E.2d 237 (1971).

Average Weekly Wages Related to Earnings Not Earning Capacity. - Nothing in the statute defining average weekly wages warranted a conclusion that plaintiff business owner was entitled to payment at the minimum rate of $30.00 per week based on a finding that his business failed to show a net profit for the fifty-two weeks preceding his injury. Under this section, average weekly wages must be related to an employee's earnings, not to his earning capacity. McAnelly v. Wilson Pallet & Crate Co., 120 N.C. App. 127, 460 S.E.2d 894 (1995).

When evaluating a disability, an employee's earning capacity must be measured by the employee's own ability to compete in the labor market, and employee ownership of a business can support a finding of earning capacity only to the extent the employee is actively involved in the personal management of that business and only to the extent that those management skills are marketable in the labor market. McGee v. Estes Express Lines, 125 N.C. App. 298, 480 S.E.2d 416 (1997).

Most Accurate Reflection. - The Industrial Commission correctly determined claimant's earning capacity as an independent contractor under the fourth method listed in subsection (5) by averaging plaintiff's net income for the years 1988 and 1989; this interpretation most accurately reflected claimant's earning capacity. Holloway v. T.A. Mebane, Inc., 111 N.C. App. 194, 431 S.E.2d 882 (1993).

Explanation Required to Support Calculation. - Where the North Carolina Industrial Commission's average weekly wage determination pursuant to G.S. 97-2(5) for an injured employee was not supported by an explanation of how it calculated that amount, a remand for an explanation thereof was warranted. Erickson v. Siegler, 195 N.C. App. 513, 672 S.E.2d 772 (2009).

Trial court erred in determining a workers' compensation claimant's average weekly wage for G.S. 97-29 purposes based solely on G.S. 97-2(5) as it did not specify which of the five methods it used in calculating the claimant's average weekly wage; Mauldin v. A.C. Corp., 217 N.C. App. 36, 719 S.E.2d 110 (2011), rev'd in part 366 N.C. 140, 727 S.E.2d 874, 2012 N.C. LEXIS 415 (N.C. 2012).

Calculation of Average Weekly Wages - North Carolina Industrial Commission erred in figuring that a decedent had average weekly wages of $807 based on his 1987 wages and in concluding that the maximum compensation rate of $308 for 1987 applied because although the proper year for determining his average weekly wages was 1987, G.S. 97-29 did not provide an unjust result but required that the maximum compensation rate for 2006 be used, as that was the year of the decedent's diagnosis; the North Carolina Industrial Commission made the correct determination that to have a just and fair result it had to resort to using a decedent's average weekly wages from his last year of employment with the employer, but the Commission erred in failing to explain why the first method of G.S. 97-2(5) would produce unjust results. Johnson v. Covil Corp., 212 N.C. App. 407, 711 S.E.2d 500 (2011).

Court of Appeals of North Carolina holds that in calculating average weekly wages for employees in temporary positions, the North Carolina Industrial Commission must consider the number of weeks the employee would have been employed in that temporary position relative to a 52-week time period. Tedder v. A&K Enters., 238 N.C. App. 169, 767 S.E.2d 98 (2014).

North Carolina Industrial Commission's calculation of an employee's average weekly wage was reversed where he had worked for no more than seven weeks when his temporary job would have ended, and the calculated value vastly overstated his actual average earnings and resulted in a financial windfall to the employee. Tedder v. A&K Enters., 238 N.C. App. 169, 767 S.E.2d 98 (2014).

Industrial Commission did not err in calculating an employee's average weekly wage based upon the employee's earnings in the year immediately preceding his diagnosis of mesothelioma. Penegar v. UPS, 259 N.C. App. 308, 815 S.E.2d 391 (2018), review denied, 373 N.C. 57, 832 S.E.2d 715 (2019).

Deduction of Expenses. - When an employee is paid a set price for doing a particular job, it is proper to deduct the expenses incurred in producing that revenue in calculating the average weekly wages; however, the Industrial Commission is not required to deduct the expenses if this method does not produce a fair result to the employer and employee. Craft v. Bill Clark Constr. Co., 123 N.C. App. 777, 474 S.E.2d 808 (1996).

When the North Carolina Industrial Commission (Commission) concluded an employee's per diem payments were not made in lieu of wages but were reimbursement for his business-related living expenses, for purposes of calculating the employee's average weekly wage, that conclusion had to be affirmed because (1) this was a question of fact, (2) evidentiary findings supporting the conclusion were not specifically challenged, barring de novo review of the Commission's decision, (3) the factual findings fully supported the conclusion, and (4) prior precedent on essentially the same issue had to be followed. Myres v. Strom Aviation, Inc., 255 N.C. App. 309, 804 S.E.2d 785 (2017), review denied, 807 S.E.2d 567, 2017 N.C. LEXIS 972 (N.C. 2017).

Equally Lucrative Work. - Industrial Commission's findings of fact established, among other things, that any limitations because of a superior labral tear were likely not caused by plaintiff's work-related injury; the Commission properly concluded, based on the evidence presented, that plaintiff did not prove that his inability to find equally lucrative work was because of his work-related injury. Medlin v. Weaver Cooke Constr., LLC, 367 N.C. 414, 760 S.E.2d 732 (2014).

Combining Wages from Other Employment Is Not Permitted. - When an employee who holds two separate jobs is injured in one of them, his compensation is based only upon his average weekly wages earned in the employment producing the injury. Joyner v. A.J. Carey Oil Co., 266 N.C. 519, 146 S.E.2d 447 (1966).

It would be unfair to the employer and his insurance carrier to compute the average weekly wage of an injured employee by combining his earnings from the employment where he was injured with his earnings from other employment, and thus burden the employer and his insurance carrier with a liability out of proportion to the employer's payroll and the insurance premium computed thereon. Wallace v. Music Shop, II, Inc., 11 N.C. App. 328, 181 S.E.2d 237 (1971).

Average Weekly Wages. - It is clear from its wording and the prior holdings of the North Carolina Supreme Court that this section establishes an order of preference for the calculation method to be used, and that the primary method is to calculate the total wages of the employee for the fifty-two weeks of the year prior to the date of injury and to divide that sum by fifty-two. McAninch v. Buncombe County Sch., 347 N.C. 126, 489 S.E.2d 375 (1997).

The definition of average weekly wages and the range of alternatives set forth in the five methods of computing such wages, as specified in subsection (5), do not allow the inclusion of wages or income earned in employment or work other than that in which the employee was injured. McAninch v. Buncombe County Sch., 347 N.C. 126, 489 S.E.2d 375 (1997).

Employer's Contributions to 401(K) and Pension Plans Not Included. - For purposes of a workers' compensation claim, an employee was not entitled under G.S. 97-2(5) to include his employer's contributions to his 401(k) and pensions plans in a calculation of his average weekly earnings as the statute did not define earnings and the contributions constituted fringe benefits, which the statute did not specifically include. Shaw v. U.S. Airways, Inc., 362 N.C. 457, 665 S.E.2d 449 (2008).

Unless Employments Are Related. - The wage basis of an employee injured in one of two related employments in which he is concurrently employed should include his earnings from both employments. Most concurrent employment controversies therefore resolve themselves into the question of what employments are sufficiently related to come within the rule. Barnhardt v. Yellow Cab Co., 266 N.C. 419, 146 S.E.2d 479 (1966).

Fifth Method Is Only Exception to Exclusion of Other Earnings. - Except for the fifth method of subdivision (5), no wage-computation provision of the Workers' Compensation Act allows a consideration of any earnings except those earned in the employment in which the employee was injured. Barnhardt v. Yellow Cab Co., 266 N.C. 419, 146 S.E.2d 479 (1966).

Misapplication of Method Five. - North Carolina Industrial Commission properly used method five under G.S. 97-2(5) to calculate an employee's average weekly wage, but it misapplied the method because it included wages from other employers in computing the employee's average weekly wage; the Commission approximated the employee's average weekly wage by dividing his earnings from all his stunt work over the preceding year by 52 weeks, and the Commission erred in considering income earned in jobs other than the six-week contract of employment the employee had with his employer. Barrett v. All Payment Servs., Inc., 201 N.C. App. 522, 686 S.E.2d 920 (2009), review denied 363 N.C. 853, 693 S.E.2d 915, 2010 N.C. LEXIS 260 (2010).

Compensation of Volunteer Fireman. - Subdivision (5) of this section employs the term "principally" to distinguish a fireman's volunteer employment from his other, remunerative employment or employments, i.e., "the employment wherein he principally earned his livelihood." The statute insures that the injured volunteer fireman receives compensation commensurate with his proven earning ability, as demonstrated by the wages he receives for work done other than in his capacity as a volunteer fireman. Derebery v. Pitt County Fire Marshall, 318 N.C. 192, 347 S.E.2d 814 (1986).

The dictum in Barnhardt v. Yellow Cab Co., 266 N.C. 419, 146 S.E.2d 479 (1966), which suggests that subdivision (5) of this section does not permit a combination of a volunteer fireman's outside wages, is overruled. Derebery v. Pitt County Fire Marshall, 318 N.C. 192, 347 S.E.2d 814 (1986).

Where volunteer fireman, at the time he was injured, was earning $74.41 working part-time for one employer and $87.40 per week working part-time for another employer, the Commission should have considered his wages in both part-time employments to compute his average weekly wage. Derebery v. Pitt County Fire Marshall, 318 N.C. 192, 347 S.E.2d 814 (1986).

Part-Time Employees. - Appellate court reversed the North Carolina Industrial Commission's award of workers' compensation benefits in the amount of $129 per week to the widow of a part-time employee who died due to a work-related accident because the Commission had not identified the method it used to calculate the employee's average weekly wage; on remand, the Commission could use the fifth method allowed by G.S. 97-2(5) for calculating the employee's average weekly wage if it found that the second method allowed by G.S. 97-2(5) was unfair because of the employee's part-time status. Boney v. Winn Dixie, Inc., 163 N.C. App. 330, 593 S.E.2d 93 (2004).

A part-time job cannot be converted into a full-time job for the purpose of compensation. Joyner v. A.J. Carey Oil Co., 266 N.C. 519, 146 S.E.2d 447 (1966).

Nor may an intermittent part-time job be treated as a continuous one for the purpose of compensation. Joyner v. A.J. Carey Oil Co., 266 N.C. 519, 146 S.E.2d 447 (1966).

Basis for Compensation for Death of Minor. - Under subdivision (5) of this section, compensation for the death of a minor employee must be based on the average weekly wage of adults employed in a similar class of work by the same employer to which decedent would probably have been promoted had he not been killed, if such method can be used, and it is only when such method cannot be used that compensation may be based upon a wage sufficient to yield the maximum weekly compensation benefit. Hensley v. Caswell Action Comm., Inc., 296 N.C. 527, 251 S.E.2d 399 (1979).

Future Earnings Used To Calculate Wage of Professional Football Player. - The North Carolina Industrial Commission was justified in using a different method of computing the average weekly wage of a professional football player by using the future earnings covered by his contract as the basis for calculating his average weekly wage, because such method most accurately approximated the amount which the player would have been earning if it were not for the injury he sustained, and the nature of the NFL players' contract created exceptional reasons as to why it was not unfair to either party to use the future earnings covered by the player's contract as a basis for calculating his average weekly wage. Renfro v. Richardson Sports, Ltd. Partners, 172 N.C. App. 176, 616 S.E.2d 317 (2005), cert. denied, 360 N.C. 535, 633 S.E.2d 821 (2006), cert. dismissed, 360 N.C. 535, 633 S.E.2d 821 (2006).

Employer's Report of Accident as Evidence of Average Wage. - While the employer's report of an accident to the Industrial Commission does not constitute a claim for compensation, a statement therein as to the employee's average weekly wage is competent upon the hearing after the filing of claim. Harris v. Asheville Contracting Co., 240 N.C. 715, 83 S.E.2d 802 (1954).

Plaintiff cannot aggregate or combine his or her wages from more than one employment in calculating his or her compensation rate, and thus, for purposes of computing compensation rate where a plaintiff worked two separate jobs at the time of injury, his or her average weekly wages are determined only from the earnings of the employment in which he or she was injured. Tunell v. Res. MFG/Prologistix, 222 N.C. App. 271, 731 S.E.2d 844 (2012).

Since North Carolina statutes and case law do not allow aggregation of wages from concurrent employment in calculating a plaintiff's average weekly wages pursuant to G.S. 97-2(5), by extension, an employer cannot deduct wages earned from concurrent employment in calculating the employer's obligation to pay partial disability compensation pursuant to G.S. 97-30; however, that this holding may not apply in situations where the post-injury employment is found to have been enlarged or used as a substitute for the loss of earnings in the injury producing employment. Tunell v. Res. MFG/Prologistix, 222 N.C. App. 271, 731 S.E.2d 844 (2012).

Aggregation Of Wages Not Allowed. - North Carolina Industrial Commission erred by subtracting an employee's post-injury earnings from a second employer in calculating a first employer's obligation to pay temporary partial disability compensation because the employee's earnings from the second employer were not included in his average weekly wages before his injury; because North Carolina law does not allow aggregation of wages from concurrent employment in calculating a plaintiff's average weekly wages, by extension, an employer cannot deduct wages earned from a concurrent employer in calculating partial disability compensation. Tunell v. Res. MFG/Prologistix, 222 N.C. App. 271, 731 S.E.2d 844 (2012).

Conclusive Effect of Commission's Method of Computing Average Wage. - The Commission's method of computing the average wage is conclusive if there are any facts to support the Commission's findings. Munford v. West Constr. Co., 203 N.C. 247, 165 S.E. 696 (1932).

Ordinarily, whether the results reached in computing the claimant's average weekly wage will be fair and just to both parties is a question of fact, and in such case a finding of fact by the Commission controls the decision. Hendricks v. Hill Realty Group, Inc., 131 N.C. App. 859, 509 S.E.2d 801 (1998).

Scope of Review When Commission Finds Results of Computation "Fair and Just". - Where the North Carolina Industrial Commission made a finding that its use of the second method of computing the employee's average weekly wage produced results that were "fair and just to both sides," review was narrowed to a determination of whether the Commission's finding and conclusion in this regard was supported by the evidence. Wallace v. Music Shop, II, Inc., 11 N.C. App. 328, 181 S.E.2d 237 (1971).

Fair Labor Standards Act Inapplicable to Awards. - The Fair Labor Standards Act, 29 U.S.C. § 201 et seq., is not applicable to awards made pursuant to the North Carolina Workers' Compensation Act. Lovette v. Reliable Mfg. Co., 262 N.C. 288, 136 S.E.2d 685 (1964).

Unreasonable Amount of Time to Seek Verification of Calculation Of Average Weekly Wages. - Employee waited an unreasonable amount of time to seek verification of the calculation of her average weekly wage, as a matter of law, because it was over three and one half years after the benefits had been tendered and accepted and the Form 21 agreement had been approved; a party to a Form 21 agreement which contains a verification provision but no provision regarding the time by which verification must be sought cannot assert a right to seek verification once a "reasonable time" has passed. Miller v. Carolinas Med. Ctr.-Northeast, 233 N.C. App. 342, 756 S.E.2d 54 (2014).

Award Held Proper. - Industrial commission did not err in awarding the claimant, as a temporary total disability benefit, his average weekly wage multiplied by the maximum percentage award he was entitled to under statutory law, for a two-month period rather than including the seven months that passed from his injury that occurred prior to the two-month period; the evidence did not show that claimant was disabled during that seven-month time period, and the claimant did not show that an alternate calculation should have been used to determine his average weekly wage used to determine the temporary total disability benefit award. France v. Murrow's Transfer, 163 N.C. App. 340, 593 S.E.2d 450 (2004).

North Carolina Industrial Commission's findings, under G.S. 97-29, as to an injured city employee's average weekly wage and compensation rate was supported by competent evidence based on the employee's total yearly earnings, longevity bonus, and overtime adjustment for longevity, which were then divided by the number of weeks the employee worked in the year. Cox v. City of Winston-Salem, 171 N.C. App. 112, 613 S.E.2d 746 (2005).

B. ILLUSTRATIVE CASES.

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Recently Promoted Salesman. - The Industrial Commission found upon supporting evidence that the deceased employee had been employed by defendant employer for a number of years, that he had been promoted successively from truck driver to stock clerk to salesman with increased wages from time to time, and that he had been given a raise in the last position less than three months prior to the time of injury resulting in death, part of the supporting evidence being testimony by the employee's superior that "with the business he was getting" he would have had further increases. It was held that the findings were sufficient in law to constitute "exceptional reasons" within the meaning of subdivision (5) of this section, and the employee's "average weekly wage" was properly fixed at the amount he was earning weekly at the time of the injury, it being patent that the wages he was then receiving were not temporary and uncertain, but constituted a fair basis upon which to compute the award to his dependents. Early v. Basnight & Co., 214 N.C. 103, 198 S.E. 577 (1938).

Pay Increases Within the 52 Weeks. - Plaintiff was employed practically continuously for 33 weeks prior to the injury resulting in death, but during that period his wages were twice increased. In the absence of a finding supported by evidence that the average weekly wage for the entire period of employment would be unfair, compensation should have been based thereon, and the computation of the average weekly wage on the basis of the wage during the period after the last increase in pay was not supported by the evidence. Mion v. Atlantic Marble & Tile Co., 217 N.C. 743, 9 S.E.2d 501 (1940).

Significant Increase in Commissions by Real Estate Agent. - Exceptional reasons existed to support calculation of a real estate agent's average weekly wage based on the 15 weeks of earnings prior to her death, where the agent made changes in the way that she performed her job, including purchase of a computer and increased hours worked per week, resulting in a significant increase in commissions earned over the previous year. Hendricks v. Hill Realty Group, Inc., 131 N.C. App. 859, 509 S.E.2d 801 (1998).

Award Based on Total Compensation Customarily Earned. - Claimant was employed as janitor, his compensation for such work being paid in part by the State School Commission, and was also employed in school maintenance work, his compensation for the maintenance work being paid exclusively by the municipal board of education. He was injured while engaged in duties pertaining exclusively to school maintenance work. It was held that an award computed on the basis of the total compensation customarily earned by claimant, rather than the compensation earned solely in school maintenance work, upon the Commission's finding of exceptional conditions, was proper. Casey v. Board of Educ., 219 N.C. 739, 14 S.E.2d 853 (1941).

Similarly Situated Employee's Average Weekly Wage. - Under G.S. 97-2(5), the employee's average weekly wage was determined by average weekly wage of a similar situated employee who had been employed for more than one year, because the employee's employment prior to her injury extended over a period of less than 52 weeks. Munoz v. Caldwell Mem'l Hosp., 171 N.C. App. 386, 614 S.E.2d 448 (2005).

Reduction in Wages After Sale of Plant. - The plant in which claimant worked was sold. Before sale, claimant was a foreman. After sale, he continued to work in a lower classification and at a lower pay rate. The Supreme Court affirmed the action of the Commission in considering the wage earned as foreman in determining claimant's average weekly wage when disablement occurred before claimant had worked 52 weeks at the lower rate. Honeycutt v. Carolina Asbestos Co., 235 N.C. 471, 70 S.E.2d 426 (1952).

Reduction as a Result of Bankruptcy. - Where, as a result of the bankruptcy of first company decedent worked at, employee's wages at second company were depressed, Industrial Commission erred by failing to consider evidence of employee's wages at first company during the 52 weeks preceding his death. Johnson v. Barnhill Contracting Co., 121 N.C. App. 55, 464 S.E.2d 313 (1995).

Compensation Provided in Contract of Employment. - Where the employer did not contend that plaintiff 's employment was casual and offered no evidence as to the amount of wages earned by others engaged in similar employment in that community during the 52 weeks previous to plaintiff 's injury, the employer could not object that the commission, in view of the fact that the employee had worked for the employer less than 40 hours at the time of his injury, fixed the employee's average weekly wage in accordance with the compensation under the contract of employment at the time of the injury, there being evidence that the employee had theretofore earned wages in excess of this sum for appreciable periods in other employments of like nature. Harris v. Asheville Contracting Co., 240 N.C. 715, 83 S.E.2d 802 (1954).

College Student Employed Part-Time. - It was improper for the Commission, in undertaking to apply the method of computing average weekly wages provided in the third sentence of subdivision (5), to determine the average weekly wages of a part-time employee to be the amount he would have earned had he been a full-time employee. Liles v. Faulkner Neon & Elec. Co., 244 N.C. 653, 94 S.E.2d 790 (1956).

In a proceeding for compensation for the death of a college student employed part-time during vacation and after school for a period of 11 weeks in which he worked from 17 1/2 to 51 hours a week, there was no factual basis for application of the method of determining average weekly wages provided in the third sentence of subdivision (5), where there was no evidence as to the average weekly amount being earned during the 52 weeks previous to decedent's injury by a person of the same grade and character employed in the same class of employment, and no evidence as to the average weekly amount a part-time worker in the same employment had earned during the 52 weeks previous to decedent's injury, while working for the particular employer or any other employer in the same locality or community. Liles v. Faulkner Neon & Elec. Co., 244 N.C. 653, 94 S.E.2d 790 (1956).

The average weekly wages of a college student working part-time for a period of 11 weeks in which he worked from 17 1/2 hours to 51 hours a week should have been computed by the method provided in the second sentence of subdivision (5) of this section, where the evidence did not warrant a finding of fact or conclusion of law that such method would not obtain results fair and just to both parties. Liles v. Faulkner Neon & Elec. Co., 244 N.C. 653, 94 S.E.2d 790 (1956).

Pulpwood Cutter. - The Industrial Commission erred in determining a pulpwood cutter's average weekly wage based on all of the proceeds of sales of pulpwood to two woodyards, where the evidence showed that the cutter was assisted in his work part of the time by his two sons and that they received part of the proceeds from the sales of pulpwood for their labor. Allred v. Piedmont Woodyards, Inc., 32 N.C. App. 516, 232 S.E.2d 879 (1977).

As to calculation of compensation for the death of pulpwood cutter who was not paid a salary or wages, but received a certain amount for each cord of pulpwood delivered to employer, where decedent owned a truck and other equipment which he used in cutting and preparing the pulpwood, see Baldwin v. Piedmont Woodyards, Inc., 58 N.C. App. 602, 293 S.E.2d 814 (1982).

Where contractor was held liable for the payment of compensation for the death of a subcontractor engaged in cutting and hauling timber, the Commission should have considered a reasonable rate of depreciation on the equipment of the subcontractor as a business expense in determining the subcontractor's earnings, or alternatively, the Commission might have considered what the subcontractor would have been required to pay someone else to perform his work, or his income as reported on tax returns from earlier years showing his own income derived from similar work. Christian v. Riddle & Mendenhall Logging, 117 N.C. App. 261, 450 S.E.2d 510 (1994).

Potentially Full-time Brick Mason. - The full Commission correctly chose the second method listed in subdivision (5) of this section to calculate plaintiff brick mason's average weekly wages, instead of the fifth method, since plaintiff, unlike a seasonal worker, could conceivably work every week, full-time for his employer; however, the Commission erred in computing plaintiff's daily wage by dividing his total earnings by the number of days worked, then multiplying this "daily wage rate" by seven for an average weekly wage, where this section does not authorize such calculation and no evidence supported a finding that plaintiff worked seven days a week. Bond v. Foster Masonry, Inc., 139 N.C. App. 123, 532 S.E.2d 583 (2000).

Distributive Education Student. - The Industrial Commission erred in determining a deceased minor employee's average weekly wage on the basis of 11 weeks during the summer when he worked full-time; the Commission should have averaged the 11 weeks of full-time with the 41 weeks of part-time employment contemplated in the minor employee's distributive education job at the undisputed hourly wage rate of $2.65 in order to reach a result fair and just to both the employee and employer. Mabry v. Bowers Implement Co., 48 N.C. App. 139, 269 S.E.2d 165 (1980).

School District Employees. - When calculating the average weekly wage of an injured school district employee, who worked and was paid ten months of the year, for workers' compensation purposes, pursuant to G.S. 97-2(5), the calculation method which divided the employee's wages for the 52 weeks preceding the employee's injury by 52 was not proper because the result was not fair and just; the employer was unduly burdened and the employee received a windfall, contrary to statutory intent, because such calculation caused the employee's annual wages to be considered to be higher than those wages actually were, since the weekly amount arrived at was paid to the employee for all 52 weeks of the year, rather than the 40 weeks the employee had typically worked. Conyers v. New Hanover County Sch., 188 N.C. App. 253, 654 S.E.2d 745 (2008).

When calculating the average weekly wage of an injured school district employee, who worked and was paid ten months of the year, for workers' compensation purposes, pursuant to G.S. 97-2(5), the calculation method which divided the employee's wages for the 52 weeks preceding the employee's injury by the number of weeks the employee actually worked during that period was fair and just because the result of that calculation most nearly approximated the amount the employee would have earned were it not for the employee's injury. Conyers v. New Hanover County Sch., 188 N.C. App. 253, 654 S.E.2d 745 (2008).

When calculating the average weekly wage of an injured school district employee, who worked and was paid ten months of the year, for workers' compensation purposes, pursuant to G.S. 97-2(5), the first calculation method provided in the statute could not be used because the employee worked for less than 52 weeks in the year preceding the employee's injury. Conyers v. New Hanover County Sch., 188 N.C. App. 253, 654 S.E.2d 745 (2008).

Plaintiff farmer who was injured as a volunteer fireman should be compensated based on what he would have earned from his labor as a farmer had he not been injured. York v. Unionville Volunteer Fire Dep't, 58 N.C. App. 591, 293 S.E.2d 812 (1982).

Trailer Truck Driver. - Where trailer truck driver's job was properly classified as "seasonal," the Industrial Commission's determination of plaintiff's average weekly wage was not supported by the evidence and the matter, would be remanded for recalculation and entry of related findings. Barber v. Going West Transp., Inc., 134 N.C. App. 428, 517 S.E.2d 914 (1999).

Deductions from Farmer's Gross Income in Calculating Income. - Farm income of injured volunteer fireman who was a farmer could not be properly calculated without deducting from gross income interest on money which was borrowed to finance crop production, depreciation on equipment used to produce the crops, license fees for things used in crop production, and taxes on land used to produce crops. York v. Unionville Volunteer Fire Dep't, 58 N.C. App. 591, 293 S.E.2d 812 (1982).

Football Player. - The Court upheld the Commission's finding that a football player, who was injured in a pre-season game before being officially accepted as a player on the active roster, earned an average weekly wage of $1,653.85 based on a contract amount of
$85,000 and a $1,000 signing bonus divided by 52 weeks. Larramore v. Richardson Sports, Ltd., 141 N.C. App. 250, 540 S.E.2d 768 (2000), aff'd, 353 N.C. 520, 546 S.E.2d 87 (2001).

Manager-Trainee. - Where the plaintiff-manager-trainee's weekly wages were undisputed, the Commission was justified in calculating his wage using his actual wages and was not required to use the wage of a comparable employee. Sims v. Charmes, 142 N.C. App. 154, 542 S.E.2d 277 (2001), cert. denied, 353 N.C. 729, 550 S.E.2d 782 (2001).

Lodging in Lieu of Wages. - The Commission's finding that the value of plaintiff's lodging was $100 per week, and that plaintiff received lodging in lieu of additional wages, was supported by substantial competent evidence. Shah v. Howard Johnson, 140 N.C. App. 58, 535 S.E.2d 577 (2000).

Travel "Allowance" in Lieu of Wages. - Award of workers' compensation benefits by the Industrial Commission was upheld as the Commission's finding that a per diem "allowance" paid to the employee was "in lieu of wages" under G.S. 97-2(5) was supported by evidence; the allowance was paid regardless of whether employee traveled and was spent at the employee's complete discretion. Greene v. Conlon Constr. Co., 184 N.C. App. 364, 646 S.E.2d 652 (2007).

Combining Earnings of Injured Claimant and Replacement Employee. - The calculation of the claimant's average weekly wage by combining his earnings during the year he was injured with the earnings of the person hired to replace him was fair to the employer and the claimant. Davis v. Taylor-Wilkes Helicopter Serv., 145 N.C. App. 1, 549 S.E.2d 580 (2001).

Calculation of Average Weekly Wages. - Average wage compensation for an injured employee, who worked contract jobs for various employers, was appropriate because the North Carolina Industrial Commission did not err under G.S. 97-2(5) by calculating the employees wages earned in a 52 week period while in the employ of an employer, for whom the employee was working when injured, and then dividing that amount by 52 to obtain the average weekly wage for the employee's employment with the employer. Thompson v. STS Holdings, Inc., 213 N.C. App. 26, 711 S.E.2d 827 (2011).

North Carolina Industrial Commission erred in reforming a settlement agreement executed by an employer and an employee because it lacked the authority to change the employee's average weekly wage; the alleged error in computing the employee's average weekly wages on the parties' agreement constituted an error of law, not of fact, because the Commission's review, as well as the propriety of the method that had produced the error, required reference to, and construction of, statutory provisions. Miller v. Carolinas Med. Ctr.-Northeast, 233 N.C. App. 342, 756 S.E.2d 54 (2014).

Widow of an employee diagnosed with lung cancer was entitled to death benefits based on the last year of work, when the employee retired many years before the diagnosis for unrelated medical reasons, because (1) the lung cancer was an occupational disease, (2) the four other statutory methods for calculating average weekly wages were considered, (3) the employee was exposed to asbestos while employed by the employer, (4) the employee retired from the employer for a reason unrelated to any work injury, (5) after retirement the employee was diagnosed with lung cancer caused by the asbestos exposure, and (6) the employee died as a result of the lung cancer. Lipe v. Starr Davis Co., 237 N.C. App. 124, 767 S.E.2d 539 (2014).

North Carolina Industrial Commission properly determined the amount of a claimant's average weekly wages and compensation rate, pursuant to the fifth method set forth in the statute, because the claimant was employed by a symphony orchestra as a musician for a fixed and definite time period of less than 52 weeks. Frank v. Charlotte Symphony, 255 N.C. App. 269, 804 S.E.2d 619 (2017), review denied, 807 S.E.2d 563, 2017 N.C. LEXIS 964 (N.C. 2017).

North Carolina Industrial Commission properly determined the amount of a claimant's average weekly wages and compensation rate, pursuant to the fifth method set forth in the statute, because the claimant was employed by a symphony orchestra as a musician for a fixed and definite time period of less than 52 weeks. Frank v. Charlotte Symphony, 255 N.C. App. 269, 804 S.E.2d 619 (2017), review denied, 807 S.E.2d 563, 2017 N.C. LEXIS 964 (N.C. 2017).

Wages Improperly Calculated. - Although an employee was entitled to temporary total disability benefits, pursuant to G.S. 97-29, the employee's average weekly wage was improperly calculated because the Industrial Commission erroneously found the employee worked less than 52 weeks for the employer, and the Commission's erroneous finding improperly triggered method three under G.S. 97-2(5). James v. Carolina Power & Light, 212 N.C. App. 441, 713 S.E.2d 50 (2011).

Calculation of Average Weekly Wages in Conjunction with Diagnosis Year. - North Carolina Industrial Commission correctly determined that decedent's average weekly wages for 1987 were $807 based on G.S. 97-2(5), but the Commission erred by failing to apply the average weekly wages in conjunction with G.S. 97-38 because the Commission failed to apply the 66 percent aspect of the statute to the average weekly wages of $807; upon applying the 66 percent, the compensation became $538, and because $ 538 was below the maximum compensation rate of $730 for 2006, the year a decedent was diagnosed, the decedent's dependent was entitled to the full amount of $538 for 400 weeks. Johnson v. Covil Corp., 212 N.C. App. 407, 711 S.E.2d 500 (2011).

IV. COMPENSABLE INJURIES, GENERALLY.

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The threefold conditions antecedent to the right to compensation under the North Carolina Workers' Compensation Act are: (1) That claimant suffered a personal injury by accident; (2) that such injury arose in the course of the employment; and (3) that such injury arose out of the employment. Wilson v. Town of Mooresville, 222 N.C. 283, 22 S.E.2d 907 (1942); Taylor v. Town of Wake Forest, 228 N.C. 346, 45 S.E.2d 387 (1947); Withers v. Black, 230 N.C. 428, 53 S.E.2d 668 (1949); Matthews v. Carolina Std. Corp., 232 N.C. 229, 60 S.E.2d 93 (1950); Anderson v. Northwestern Motor Co., 233 N.C. 372, 64 S.E.2d 265 (1951); Bryan v. First Free Will Baptist Church, 267 N.C. 111, 147 S.E.2d 633 (1966); Burton v. American Nat'l Ins. Co., 10 N.C. App. 499, 179 S.E.2d 7 (1971); Loflin v. Loflin, 13 N.C. App. 574, 186 S.E.2d 660, cert. denied, 281 N.C. 154, 187 S.E.2d 585 (1972); Gallimore v. Marilyn's Shoes, 292 N.C. 399, 233 S.E.2d 529 (1977); King v. Exxon Co., 46 N.C. App. 750, 266 S.E.2d 37 (1980); Hollar v. Montclair Furn. Co., 48 N.C. App. 489, 269 S.E.2d 667 (1980).

In order for the death of an employee to be compensable it must result from an injury by an accident arising out of and in the course of the employment. Slade v. Willis Hosiery Mills, 209 N.C. 823, 184 S.E. 844 (1936); McGill v. Town of Lumberton, 215 N.C. 752, 3 S.E.2d 324 (1939); Ashley v. F-W Chevrolet Co., 222 N.C. 25, 21 S.E.2d 834 (1942); Gilmore v. Hoke County Bd. of Educ., 222 N.C. 358, 23 S.E.2d 292 (1942); Berry v. Colonial Furn. Co., 232 N.C. 303, 60 S.E.2d 97 (1950); Bell v. Dewey Bros., 236 N.C. 280, 72 S.E.2d 680 (1952); Poteete v. North State Pyrophyllite Co., 240 N.C. 561, 82 S.E.2d 693 (1954); Cole v. Guilford County, 259 N.C. 724, 131 S.E.2d 308 (1963); Lewis v. W.B. Lea Tobacco Co., 260 N.C. 410, 132 S.E.2d 877 (1963); Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865 (1963); Gamble v. Stutts, 262 N.C. 276, 136 S.E.2d 688 (1964); Bryan v. First Free Will Baptist Church, 267 N.C. 111, 147 S.E.2d 633 (1966); Andrews v. County of Pitt, 269 N.C. 577, 153 S.E.2d 67 (1967); Clark v. Burton Lines, 272 N.C. 433, 158 S.E.2d 569 (1968); Calhoun v. Kimbrell's, Inc., 6 N.C. App. 386, 170 S.E.2d 177 (1969); Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972); Bartlett v. Duke Univ., 17 N.C. App. 598, 195 S.E.2d 371, rev'd on other grounds, 284 N.C. 230, 200 S.E.2d 193 (1973); Stewart v. North Carolina Dep't of Cors., 29 N.C. App. 735, 225 S.E.2d 336 (1976); Gallimore v. Marilyn's Shoes, 30 N.C. App. 628, 228 S.E.2d 39 (1976), rev'd on other grounds, 292 N.C. 399, 233 S.E.2d 529 (1977); Barham v. Food World, Inc., 300 N.C. 329, 266 S.E.2d 676, rehearing denied, 300 N.C. 562, 270 S.E.2d 105 (1980).

Disability as Fourth Condition. - An employee must establish a fourth essential element, that his injury caused him disability, unless it is included in the schedule of injuries made compensable by G.S. 97-31 without regard to loss of wage-earning power. Hollman v. City of Raleigh, 273 N.C. 240, 159 S.E.2d 874 (1968); Loflin v. Loflin, 13 N.C. App. 574, 186 S.E.2d 660, cert. denied, 281 N.C. 154, 187 S.E.2d 585 (1972).

Except in the case of certain occupational diseases, compensation may not be awarded under the Act unless there is proof of a disability due to an injury, which injury was the result of an accident arising out of and in the course of the employment. Rhinehart v. Roberts Super Mkt., Inc., 271 N.C. 586, 157 S.E.2d 1 (1967).

Where the Industrial Commission's ruling that a worker failed to prove his disability or his need for further medical attention was supported by competent evidence in the record, the issue of the worker's refusal of light duty work was not reached; no physician had prohibited the worker from working or found that he could not work as a result of his knee and hip complaints and there were no treatment recommendations for the worker. Springer v. McNutt Serv. Group, Inc., 160 N.C. App. 574, 586 S.E.2d 554 (2003).

"Compensability" and "Disability" Distinguished. - North Carolina General Statutes and ample case law distinguished between the separate concepts of "compensability" and "disability;" where neither a Form 21 nor a Form 26 was filed, nor was a prior award by the industrial commission entered, an injured employee was not entitled to a presumption of continuing disability based on the insurer's admission of compensability, and the industrial commission erred in placing on the insurer the burden to show that the injured employee was capable of returning to gainful employment. Clark v. Wal-Mart, 360 N.C. 41, 619 S.E.2d 491 (2005).

Medical Compensation. - Defendants admitted that they paid plaintiff's pursuant to plaintiff's Florida workers' compensation claim, and these payments had not been ordered as a result of a pending workers' compensation claim in North Carolina. Therefore, defendants' payment of these expenses constituted "medical compensation" under G.S. 97-2(19). Clark v. Summit Contrs. Group, Inc., 238 N.C. App. 232, 767 S.E.2d 896 (2014).

Effect of Disease. - To establish his claim for the death of decedent, plaintiff must show (1) death resulting from an injury by accident, (2) arising out of and in the course of decedent's employment by the defendant, and (3) not including a disease in any form, except where it results naturally and unavoidably from the accident. Lewter v. Abercrombie Enters., 240 N.C. 399, 82 S.E.2d 410 (1954).

Finding of Injury Required. - The fact that plaintiff sustained an injury is a critical fact upon which her right to compensation depends; thus, a specific finding of that fact is required by the Commission. Jackson v. Fayetteville Area Sys. of Transp., 78 N.C. App. 412, 337 S.E.2d 110 (1985).

More must be shown than an injury while at work to sustain a claim for compensation. Hargus v. Select Foods, Inc., 271 N.C. 369, 156 S.E.2d 737 (1967).

To be compensable the injury must spring from the employment. Lewis v. W.B. Lea Tobacco Co., 260 N.C. 410, 132 S.E.2d 877 (1963); Burton v. American Nat'l Ins. Co., 10 N.C. App. 499, 179 S.E.2d 7 (1971).

Or Have Its Origin Therein. - To be compensable an injury must spring from the employment or have its origin therein. Perry v. American Bakeries Co., 262 N.C. 272, 136 S.E.2d 643 (1964); Clark v. Burton Lines, 272 N.C. 433, 158 S.E.2d 569 (1968); Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972).

Reasonable Relationship to Employment Is Sufficient. - An appellate court is justified in upholding a compensation award if the accident is fairly traceable to the employment as a contributing cause or if any reasonable relationship to employment exists. Hoffman v. Ryder Truck Lines, 306 N.C. 502, 293 S.E.2d 807 (1982).

Injury Must Occur at a Judicially Cognizable Point in Time. - The specific traumatic incident provision of G.S. 97-2(6) requires plaintiff to prove an injury at a judicially cognizable point in time. Judicially cognizable does not mean "ascertainable on an exact date," but instead should be read to describe a showing by plaintiff which enables the Commission to determine when, within a reasonable period, the specific injury occurred; the evidence must show that there was some event that caused the injury, not a gradual deterioration, and if the window during which the injury occurred can be narrowed to a judicially cognizable period, then the statute is satisfied. Ruffin v. Compass Group USA, 150 N.C. App. 480, 563 S.E.2d 633 (2002).

Evidence that the employee's injury occurred in early May 2000, was sufficient to support a determination that the employee's injury occurred at a judicially cognizable point in time. Goforth v. K-Mart Corp., 167 N.C. App. 618, 605 S.E.2d 709 (2004).

Specific Hour of Injury Need Not Be Alleged. - While the case law interpreting the specific traumatic incident provision of subsection (6) requires the plaintiff to prove an injury at a cognizable time, this does not compel the plaintiff to allege the specific hour or day of the injury. Fish v. Steelcase, Inc., 116 N.C. App. 703, 449 S.E.2d 233 (1994), cert. denied, 339 N.C. 737, 454 S.E.2d 650 (1995).

When Death Is Compensable. - In order for a claimant to recover workers' compensation benefits for death, he must prove that death resulted from an injury (1) by accident; (2) arising out of his employment; and (3) in the course of the employment. Pickrell v. Motor Convoy, Inc., 322 N.C. 363, 368 S.E.2d 582 (1988).

Death by suicide is compensable if a work-connected injury causes insanity which in turn induces the suicide. Painter v. Mead Corp., 258 N.C. 741, 129 S.E.2d 482 (1963).

Finding that plaintiff experienced pain as a result of what occurred while performing her duties was not a sufficient finding that plaintiff sustained an injury. Jackson v. Fayetteville Area Sys. of Transp., 78 N.C. App. 412, 337 S.E.2d 110 (1985).

Back Injuries. - By amending the second sentence of subdivision (6) to say that an accident with respect to back injuries includes an injury that is the "result of a specific traumatic incident," the General Assembly intended to relax the requirement that there be some unusual circumstance that accompanied the injury; the use of the words "specific" and "incident" means that the trauma or injury must not have developed gradually but must have occurred at a cognizable time. Bradley v. E.B. Sportswear, Inc., 77 N.C. App. 450, 335 S.E.2d 52 (1985).

The General Assembly recognized the complex nature of back injuries, and did not intend to limit the definition of specific traumatic incident to an instantaneous occurrence. Richards v. Town of Valdese, 92 N.C. App. 222, 374 S.E.2d 116 (1988), cert. denied, 324 N.C. 337, 378 S.E.2d 799 (1989).

Nothing in subdivision (6) precludes compensation for a back injury which occurs in the normal work routine. Fish v. Steelcase, Inc., 116 N.C. App. 703, 449 S.E.2d 233 (1994), cert. denied, 339 N.C. 737, 454 S.E.2d 650 (1995).

Aggravation of Pre-Existing Back Injury. - Industrial commission properly awarded workers' compensation benefits to a worker pursuant to G.S. 97-2(6) for a back injury; the evidence established that the worker's back problems were a result of an accident, which substantially aggravated his pre-existing back condition. Moore v. Fed. Express, 162 N.C. App. 292, 590 S.E.2d 461 (2004).

Employee was entitled to ongoing disability compensation because knee injuries and medical restrictions prevented him from performing his job, and any attempt to obtain sedentary work would have been futile in light of his (1) age of 61, (2) lack of work experience, (3) lack of training and education, (4) lack of transferable skills, and (5) physical impairment. Weatherford v. Am. Nat'l Can Co., 168 N.C. App. 377, 607 S.E.2d 348 (2005).

Preexisting Neurological Disorders. - North Carolina Industrial Commission properly terminated an employee's temporary total disability benefits because ample evidence supported the Commission's finding that the employee's condition was caused by a preexisting, rare neurological disorder and not by a work-related slip-and-fall accident. Drakeford v. Charlotte Express, 158 N.C. App. 432, 581 S.E.2d 97 (2003).

Mental Impairments. - As long as the resulting disability meets statutory requirements, mental impairments are compensable under the Act. Jordan v. Central Piedmont Community College, 124 N.C. App. 112, 476 S.E.2d 410 (1996).

Employee who alleged that he slipped and fell, injuring his back, while still suffering from a prior work-related injury to his ribs, did not show that employer knew its conduct was substantially certain to cause serious injury or death, since the job he was performing when he fell had been performed the same way for many years without injury, the job involved typical hazards involved with welding, he was a certified welder, falling was not a significant hazard of this particular job, and no O.S.H.A. violations were established with regard to this job. Bullins v. Abitibi-Price Corp., 124 N.C. App. 530, 477 S.E.2d 691 (1996).

Chronic Fatigue Syndrome. - Evidence that an employee of a waste company whose job was to collect and dispose of raw sewage developed chronic fatigue syndrome and other ailments after being accidentally sprayed with raw sewage and that the employee's illnesses were most probably the result of the accident supported a ruling of the North Carolina Industrial Commission awarding the employee permanent workers' compensation disability benefits. Norton v. Waste Mgmt., 146 N.C. App. 409, 552 S.E.2d 702 (2001).

Injury During Normal and Routine Job Activities Without Accident. - Employee was not entitled to compensation for shoulder injuries and for psychological trauma, which was aggravated therefrom, where it was found that the injuries were caused when the employee was engaged in her normal work duties and there was no accidental injury that occurred under G.S. 97-2(6). Harrison v. Lucent Techs., 156 N.C. App. 147, 575 S.E.2d 825 (2003), cert. denied, 357 N.C. 164, 580 S.E.2d 365 (2003).

Attorney's Malpractice. - Attorney's malpractice in failing to timely file a third-party tort action was not an injury under G.S. 97-2(6) for purposes of an employer's right of subrogation. Grant Constr. Co. v. McRae, 146 N.C. App. 370, 553 S.E.2d 89 (2001).

Expert Testimony. - 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).

Where the employee's primary care physician and a psychologist both provided competent expert testimony as to the cause of an employee's injuries based on their evaluations and treatment of the employee, the North Carolina Industrial Commission did not err in relying on their opinions in determining that the employee suffered a compensable injury. Pickett v. Advance Auto Parts, 245 N.C. App. 246, 782 S.E.2d 66 (2016).

North Carolina Industrial Commission did not err in determining that a psychologist was an expert in psychology because its designation was supported by the psychologist's education and experience. Pickett v. Advance Auto Parts, 245 N.C. App. 246, 782 S.E.2d 66 (2016).

North Carolina Industrial Commission did not err in determining that an employee met his burden to establish a compensable injury because its findings of fact regarding a psychologist's assessment and observations was sufficient to support its reliance on the psychologist's testimony as evidence of causation. Pickett v. Advance Auto Parts, 245 N.C. App. 246, 782 S.E.2d 66 (2016).

North Carolina Industrial Commission did not err in relying on the testimony of an employee's primary care physician regarding causation because there was a sufficient basis for the physician's expert opinion testimony as to the cause of the employee's injuries; the physician's impressions were based on his impressions of the employee's account of a robbery and his symptoms, the exclusion of other potential causes, and the temporal link between the occurrence of the symptoms and the robbery. Pickett v. Advance Auto Parts, 245 N.C. App. 246, 782 S.E.2d 66 (2016).

Testimony Attesting Medical Certainty Not Required. - Although a doctor testified that he could not opine to a reasonable degree of certainty whether the employee's fall at work caused his injury, testimony attesting medical certainty was not required to award disability benefits; the doctor testified that the employee's symptoms were consistent with an injury occurring from a fall and that he had no indication that everyday activities caused the injury. Adams v. Metals USA, 168 N.C. App. 469, 608 S.E.2d 357 (2005), aff'd, - N.C. - , 619 S.E.2d 495 (N.C. 2005).

Competent evidence in the form of testimony from treating physicians supported the awards to an employee for injuries, including the (1) replacement of one of the employee's breast implants which was damaged in an auto accident, but not the replacement of the other implant which apparently was not damaged in the accident; (2) treatment of the employee's headaches after the accident, (3) treatment of the employee for carpal tunnel syndrome and arthrosis in the employee's right wrist and thumb after the accident, and (4) treatment for and surgeries to the employee's right knee in which a pre-existing condition was aggravated because of the accident. Richardson v. Maxim Healthcare/ Allegis Group, 188 N.C. App. 337, 657 S.E.2d 34 (2008), aff'd in part, rev'd in part, 362 N.C. 657, 669 S.E.2d 582 (2008).

Determination Depends on Facts of Each Case. - The question of whether compensation is recoverable under this act depends upon whether the accident complained of arises out of and in the course of the employment of the one injured, and its determination depends largely upon the facts of each particular case as matters of fact and conclusions of law. Harden v. Thomasville Furn. Co, 199 N.C. 733, 155 S.E. 728 (1930).

Common-Law Rules of Negligence Are Inapplicable. - The words "out of and in the course of the employment," used in connection with compensable injuries, are not to be construed by the rules controlling in negligent default cases at common law; an accidental injury is compensable if there is a causal relation between the employment and injury, if the injury is one which, after the event, may be seen to have had its origin in the employment, and it need not be shown that it is one which ought to have been foreseen or expected. Conrad v. Cook-Lewis Foundry Co., 198 N.C. 723, 153 S.E. 266 (1930); Ashley v. F-W Chevrolet Co., 222 N.C. 25, 21 S.E.2d 834 (1942); Lee v. F.M. Henderson & Assocs., 284 N.C. 126, 200 S.E.2d 32 (1973).

In compensation cases the Commission finds the facts. Lawrence v. Hatch Mill, 265 N.C. 329, 144 S.E.2d 3 (1965).

The findings of fact of the Commission are conclusive if supported by competent evidence in the record even if the record also contains evidence which would support a contrary finding. Blalock v. Roberts Co., 12 N.C. App. 499, 183 S.E.2d 827 (1971).

Where there is any competent evidence in support of the finding of the Industrial Commission that the accident in question arose out of and in the course of employment, the finding is conclusive on the courts upon appeal. Latham v. Southern Fish & Grocery Co., 208 N.C. 505, 181 S.E. 640 (1935).

The finding of fact of the Industrial Commission that the disease causing an employee's death resulted naturally and unavoidably from an accident is conclusive on appeal when supported by competent evidence. Doggett v. South Atl. Whse. Co., 212 N.C. 599, 194 S.E. 111 (1937).

If the Commission's findings have evidentiary support in the record, they are conclusive. Lawrence v. Hatch Mill, 265 N.C. 329, 144 S.E.2d 3 (1965).

If the findings made by the Commission are supported by competent evidence, they must be accepted as final truth. Blalock v. Roberts Co., 12 N.C. App. 499, 183 S.E.2d 827 (1971).

Whether an injury arose out of and in the course of employment is a mixed question of law and fact, and where there is evidence to support the commissioner's findings in this regard, the court is bound by those findings. Barham v. Food World, Inc., 300 N.C. 329, 266 S.E.2d 676, rehearing denied, 300 N.C. 562, 270 S.E.2d 105 (1980). See also Cole v. Guilford County, 259 N.C. 724, 131 S.E.2d 308 (1963).

When Findings Are Reviewable on Appeal. - Where there is no conflicting evidence and the Industrial Commission decides as a matter of law that there is no sufficient competent evidence that the injury to plaintiff was "by accident arising out of and in the course of employment," the question is one of law and is reviewable by the court upon appeal. Massey v. Board of Educ., 204 N.C. 193, 167 S.E. 695 (1933).

Scope of Appellate Review. - Where the evidence is such that several inferences appear equally plausible, the finding of the Industrial Commission is conclusive on appeal, and courts are not at liberty to reweigh the evidence and set aside the finding simply because other conclusions might have been reached. Rewis v. New York Life Ins. Co., 226 N.C. 325, 38 S.E.2d 97 (1946).

The determination of whether an accident arises out of and in the course of employment under this section is a mixed question of law and fact, and the appellate court may review the record to determine if the findings and conclusions are supported by sufficient evidence. Gallimore v. Marilyn's Shoes, 292 N.C. 399, 233 S.E.2d 529 (1977); Williams v. Hydro Print, Inc., 65 N.C. App. 1, 308 S.E.2d 478 (1983), cert. denied, 310 N.C. 156, 311 S.E.2d 297 (1984).

Remand for Findings. - Where in proceedings under this Act there was no finding or adjudication in reference to the contention of the employer that the claimant's injury was occasioned by his willful intention to injure his assailant, a fellow servant, the cause would be remanded for a definite determination of the question. Conrad v. Cook-Lewis Foundry Co., 198 N.C. 723, 153 S.E. 266 (1930).

V. ACCIDENT.

.

Editor's Note. - Earlier cases dealing with back injuries should be read in light of the 1983 amendment to subdivision (6) of this section, which modified the definition of "injury" with respect to back injuries so as to cover "specific traumatic incidents." Caskie v. R.M. Butler & Co., 85 N.C. App. 266, 354 S.E.2d 242 (1987).

The Workers' Compensation Act does not provide compensation for all injuries, but only for injuries by accident. O'Mary v. Land Clearing Corp., 261 N.C. 508, 135 S.E.2d 193 (1964); Lawrence v. Hatch Mill, 265 N.C. 329, 144 S.E.2d 3 (1965); Hargus v. Select Foods, Inc., 271 N.C. 369, 156 S.E.2d 737 (1967).

An injury, to be compensable, must result from an accident, which is to be considered as a separate event preceding and causing the injury; the mere fact of injury does not of itself establish the fact of accident. Bigelow v. Tire Sales Co., 12 N.C. App. 220, 182 S.E.2d 856 (1971); Beamon v. Stop & Shop Grocery, 27 N.C. App. 553, 219 S.E.2d 508 (1975).

There must be an accident, followed by an injury by such accident which results in harm to the employee, before the employee may be compensated. Jackson v. North Carolina State Hwy. Comm'n, 272 N.C. 697, 158 S.E.2d 865 (1968).

Absent an accident, i.e., a fortuitous event, the death or injury of an employee while performing his regular duties in the usual and customary manner is not compensable. O'Mary v. Land Clearing Corp., 261 N.C. 508, 135 S.E.2d 193 (1964); Rhinehart v. Roberts Super Mkt., Inc., 271 N.C. 586, 157 S.E.2d 1 (1967); Jackson v. North Carolina State Hwy. Comm'n, 272 N.C. 697, 158 S.E.2d 865 (1968); Norris v. Kivettco, Inc., 58 N.C. App. 376, 293 S.E.2d 594 (1982).

Where the plaintiff was not injured by accident as contemplated by this section, his injury is not compensable. Gray v. Durham Transf. & Storage, Inc., 10 N.C. App. 668, 179 S.E.2d 883 (1971).

Under the Workers' Compensation Act, an injury arising out of and in the course of employment is compensable only if it is caused by an accident. Davis v. Raleigh Rental Center, 58 N.C. App. 113, 292 S.E.2d 763 (1982).

An Injury, to be Compensable, Must Result From an Accident. - Industrial commission properly denied the employee's workers' compensation claim, as the meeting at which the employee received a performance rating, did not constitute a workplace accident; the meeting was not an unexpected, unusual or untoward occurrence, and was not an interruption of the work routine and the introduction of unusual conditions likely to result in unexpected consequences. Pitillo v. N.C. Dep't of Envtl. Health & Natural Res., 151 N.C. App. 641, 566 S.E.2d 807 (2002).

When an employee suffered a minor physical injury at work, and later suffered a disabling psychological injury in the course of the employer's investigation of the physical injury because she thought she was being accused of suing her employer, the evidence established that her disability was caused by the mental injury, rather than the physical injury, and she was not eligible for workers' compensation benefits because the mental injury did not qualify as an accident, for workers' compensation purposes, because it was not an unlooked for and untoward event involving the interruption of the routine of work and the introduction thereby of unusual conditions likely to result in unexpected consequences. Smith v. Hous. Auth. of Asheville, 159 N.C. App. 198, 582 S.E.2d 692 (2003).

The terms "injury" and "accident," as used in the act, are not synonymous. Rhinehart v. Roberts Super Mkt., Inc., 271 N.C. 586, 157 S.E.2d 1 (1967); Russell v. Pharr Yarns, Inc., 18 N.C. App. 249, 196 S.E.2d 571 (1973); Beamon v. Stop & Shop Grocery, 27 N.C. App. 553, 219 S.E.2d 508 (1975); Reams v. Burlington Indus., 42 N.C. App. 54, 255 S.E.2d 586 (1979). But see Keller v. Electric Wiring Co., 259 N.C. 222, 130 S.E.2d 342 (1963), indicating that injury by accident and accidental injury are synonymous terms; Swindell v. Davis Boat Works, Inc., 78 N.C. App. 393, 337 S.E.2d 592 (1985); Lewter v. Abercrombie Enters., Inc., 240 N.C. 399, 82 S.E.2d 410 (1954)cert. denied and appeal dismissed.

The mere fact of injury does not of itself establish the fact of accident. Key v. Wagner Woodcraft, Inc., 33 N.C. App. 310, 235 S.E.2d 254 (1977); Reams v. Burlington Indus., 42 N.C. App. 54, 255 S.E.2d 586 (1979).

The accident must be a separate event preceding and causing the injury. Key v. Wagner Woodcraft, Inc., 33 N.C. App. 310, 235 S.E.2d 254 (1977); Searsey v. Perry M. Alexander Constr. Co., 35 N.C. App. 78, 239 S.E.2d 847, cert. denied, 294 N.C. 736, 244 S.E.2d 154 (1978); Davis v. Raleigh Rental Center, 58 N.C. App. 113, 292 S.E.2d 763 (1982).

Accident and injury are considered separate. Ordinarily, the accident must precede the injury. Harding v. Thomas & Howard Co., 256 N.C. 427, 124 S.E.2d 109 (1962); Bowles v. CTS of Asheville, Inc., 77 N.C. App. 547, 335 S.E.2d 502 (1985).

Injury and accident are separate, and there must be an accident which produces the injury before the employee can be awarded compensation. O'Mary v. Land Clearing Corp., 261 N.C. 508, 135 S.E.2d 193 (1964); Jackson v. North Carolina State Hwy. Comm'n, 272 N.C. 697, 158 S.E.2d 865 (1968); Porter v. Shelby Knit, Inc., 46 N.C. App. 22, 264 S.E.2d 360 (1980); Poe v. Acme Bldrs., 69 N.C. App. 147, 316 S.E.2d 338, cert. denied, 311 N.C. 762, 321 S.E.2d 143 (1984); Jackson v. Fayetteville Area Sys. of Transp., 88 N.C. App. 123, 362 S.E.2d 569 (1987).

Which Is Unforeseen or Unusual. - An "accident" within the meaning of this Act is an unlooked for and untoward event which is not expected or designed by the injured employee. Conrad v. Cook-Lewis Foundry Co., 198 N.C. 723, 153 S.E. 266 (1930); McNeely v. Carolina Asbestos Co., 206 N.C. 568, 174 S.E. 509 (1934); Slade v. Willis Hosiery Mills, 209 N.C. 823, 184 S.E. 844 (1936); Love v. Town of Lumberton, 215 N.C. 28, 1 S.E.2d 121 (1939); Brown v. Carolina Aluminum Co., 224 N.C. 766, 32 S.E.2d 320 (1944); Edwards v. Piedmont Publishing Co., 227 N.C. 184, 41 S.E.2d 592 (1947); Gabriel v. Town of Newton, 227 N.C. 314, 42 S.E.2d 96 (1947); Hensley v. Farmers Fed'n Coop., 246 N.C. 274, 98 S.E.2d 289 (1957); Harding v. Thomas & Howard Co., 256 N.C. 427, 124 S.E.2d 109 (1962); Searsey v. Perry M. Alexander Constr. Co., 35 N.C. App. 78, 239 S.E.2d 847, cert. denied, 294 N.C. 736, 244 S.E.2d 154 (1978); Porter v. Shelby Knit, Inc., 46 N.C. App. 22, 264 S.E.2d 360 (1980); Gladson v. Piedmont Stores/Scotties Disct. Drug Store, 57 N.C. App. 579, 292 S.E.2d 18, cert. denied, 306 N.C. 556, 294 S.E.2d 370 (1982); Diaz v. United States Textile Corp., 60 N.C. App. 712, 299 S.E.2d 843, cert. denied, 308 N.C. 386, 302 S.E.2d 250 (1983); Adams v. Burlington Indus., Inc., 61 N.C. App. 258, 300 S.E.2d 455 (1983); Poe v. Acme Bldrs., 69 N.C. App. 147, 316 S.E.2d 338, cert. denied, 311 N.C. 762, 321 S.E.2d 143 (1984).

While there need be no appreciable separation in time between the accident and the resulting injury, there must be some unforeseen or unusual event other than the bodily injury itself. Rhinehart v. Roberts Super Mkt., Inc., 271 N.C. 586, 157 S.E.2d 1 (1967); Norris v. Kivettco, Inc., 58 N.C. App. 376, 293 S.E.2d 594 (1982).

An "accident" within the contemplation of this Chapter is an unusual and unexpected or fortuitous occurrence, there being no indication that the legislature intended to put upon the usual definition of this term any further refinements. Smith v. Cabarrus Creamery Co., 217 N.C. 468, 8 S.E.2d 231 (1940).

Unusualness and unexpectedness are the essence of an accident. Davis v. Raleigh Rental Center, 58 N.C. App. 113, 292 S.E.2d 763 (1982).

North Carolina Industrial Commission properly concluded that a plaintiff employee's wrist injuries had not occurred by accident under G.S. 97-2(6) where she was not performing unusual or unexpected job duties when she exerted force to move a pad underneath a healthcare facility resident or took manual blood pressure readings; those actions were normal job duties for a certified nursing assistant. Evans v. Wilora Lake Healthcare, 180 N.C. App. 337, 637 S.E.2d 194 (2006).

Or Involves a Result Produced by a Fortuitous Cause. - The term "accident" as used in the act has been defined as (1) an unlooked for and untoward event which is not expected or designed by the injured employee; (2) a result produced by a fortuitous cause. Harding v. Thomas & Howard Co., 256 N.C. 427, 124 S.E.2d 109 (1962); O'Mary v. Land Clearing Corp., 261 N.C. 508, 135 S.E.2d 193 (1964); Rhinehart v. Roberts Super Mkt., Inc., 271 N.C. 586, 157 S.E.2d 1 (1967); Pulley v. Migrant & Seasonal Farm-Workers Ass'n, 30 N.C. App. 94, 226 S.E.2d 227 (1976); Kennedy v. Martin Marietta Chems., 34 N.C. App. 177, 237 S.E.2d 542 (1977); Reams v. Burlington Indus., 42 N.C. App. 54, 255 S.E.2d 586 (1979); Norris v. Kivettco, Inc., 58 N.C. App. 376, 293 S.E.2d 594 (1982); Bowles v. CTS of Asheville, Inc., 77 N.C. App. 547, 335 S.E.2d 502 (1985).

Injury by accident is an injury produced by a fortuitous cause. Kennedy v. Martin Marietta Chems., 34 N.C. App. 177, 237 S.E.2d 542 (1977).

The term "accident," under this Chapter, is an unlooked for and untoward event, and a result produced by a fortuitous cause. Davis v. Raleigh Rental Center, 58 N.C. App. 113, 292 S.E.2d 763 (1982).

Injuries Which Are Natural and Probable Result of Employment Are Not Compensable. - An injury, in order to be compensable, must result from an accident, and injuries which are not the result of any fortuitous occurrence, but are the natural and probable result of the employment, are not compensable. Smith v. Cabarrus Creamery Co., 217 N.C. 468, 8 S.E.2d 231 (1940).

An injury must involve more than the carrying on of the usual and customary duties in the usual way to justify an award of compensation. Davis v. Raleigh Rental Center, 58 N.C. App. 113, 292 S.E.2d 763 (1982).

No matter how great the injury, if it is caused by an event that involves both an employee's normal work routine and normal working conditions it will not be considered to have been caused by accident. Searsey v. Perry M. Alexander Constr. Co., 35 N.C. App. 78, 239 S.E.2d 847, cert. denied, 294 N.C. 736, 244 S.E.2d 154 (1978); King v. Exxon Co., 46 N.C. App. 750, 266 S.E.2d 37 (1980).

If the employee is performing his regular duties in the usual and customary manner, and is injured, there is no "accident" and the injury is not compensable. Porter v. Shelby Knit, Inc., 46 N.C. App. 22, 264 S.E.2d 360 (1980).

Because an employee's trapezius strain was caused by his shoulder injury and his shoulder injury occurred while performing his normal work routine under normal working conditions, the shoulder injury was not compensable under the Workers' Compensation Act; it was not the result of an injury by accident as defined in G.S. 97-2(6). Raper v. Mansfield Sys., 189 N.C. App. 277, 657 S.E.2d 899 (2008).

Accident involves the interruption of the work routine and the introduction thereby of unusual conditions likely to result in unexpected consequences. Harding v. Thomas & Howard Co., 256 N.C. 427, 124 S.E.2d 109 (1962); Pardue v. Blackburn Bros. Oil & Tire Co., 260 N.C. 413, 132 S.E.2d 747 (1963); Lawrence v. Hatch Mill, 265 N.C. 329, 144 S.E.2d 3 (1965); Gray v. Durham Transf. & Storage, Inc., 10 N.C. App. 668, 179 S.E.2d 883 (1971); Southards v. Byrd Motor Lines, 11 N.C. App. 583, 181 S.E.2d 811 (1971); Bigelow v. Tire Sales Co., 12 N.C. App. 220, 182 S.E.2d 856 (1971); Garmon v. Tridair Indus., Inc., 14 N.C. App. 574, 188 S.E.2d 523 (1972); Dunton v. Daniel Constr. Co., 19 N.C. App. 51, 198 S.E.2d 8 (1973); Beamon v. Stop & Shop Grocery, 27 N.C. App. 553, 219 S.E.2d 508 (1975); Key v. Wagner Woodcraft, Inc., 33 N.C. App. 310, 235 S.E.2d 254 (1977); Smith v. Burlington Indus., Inc., 35 N.C. App. 105, 239 S.E.2d 845 (1978); Curtis v. Carolina Mechanical Sys., 36 N.C. App. 621, 244 S.E.2d 690 (1978); Gladson v. Piedmont Stores/Scotties Disct. Drug Store, 57 N.C. App. 579, 292 S.E.2d 18, cert. denied, 306 N.C. 556, 294 S.E.2d 370 (1982); Davis v. Raleigh Rental Center, 58 N.C. App. 113, 292 S.E.2d 763 (1982); Norris v. Kivettco, Inc., 58 N.C. App. 376, 293 S.E.2d 594 (1982); Adams v. Burlington Indus., Inc., 61 N.C. App. 258, 300 S.E.2d 455 (1983); Poe v. Acme Bldrs., 69 N.C. App. 147, 316 S.E.2d 338, cert. denied, 311 N.C. 762, 321 S.E.2d 143 (1984); Sanderson v. Northeast Constr. Co., 77 N.C. App. 117, 334 S.E.2d 392 (1985).

Professional Football Player. - Though an injury sustained while playing football may not be an unusual occurrence, such injury is not a probable, intended consequence of the employment and constitutes an unlooked for and untoward event that was not expected or designed; as such, sufficient evidence supported the findings of fact that a plaintiff, a professional football player, sustained a compensable injury by accident arising out of and in the course of his employment when his testimony explained that there was a technique he used to initiate a block by having his wrist in an upward position but, instead, his hand was forced into an awkward position wherein his wrist went downward and such testimony indicated that although he was engaging in his normal work duty of blocking an offensive lineman, he was injured because he was forced by another player into utilizing an unusual and awkward blocking or work technique that was not normally used in his normal work routine. Renfro v. Richardson Sports, Ltd. Partners, 172 N.C. App. 176, 616 S.E.2d 317 (2005), cert. denied, 360 N.C. 535, 633 S.E.2d 821 (2006), cert. dismissed, 360 N.C. 535, 633 S.E.2d 821 (2006).

Football player's leg injury was a compensable injury by accident where the player sustained an injury while playing in the fifteenth game of the season, the injury was unusual in that the player had attempted to block numerous extra point attempts without sustaining a broken leg and torn tendons in his ankle, it was unexpected that one or more players would fall on the back of the injured player's leg causing a career-ending injury, and for such an injury to occur required a force of 3000 pounds per square inch. Swift v. Richardson Sports, Ltd., 173 N.C. App. 134, 620 S.E.2d 533 (2005).

Willful or Criminal Assault by Third Person. - Injuries resulting from an assault are caused by "accident" when, from the employee's perspective, the assault was unexpected and was without design on her part. Hauser v. Advanced Plastiform, Inc., 133 N.C. App. 378, 514 S.E.2d 545 (1999).

Death by Gunshot. - Industrial Commission did not err in concluding that plaintiffs were entitled to a presumption of compensability, where defendants failed to rebut the presumption that the death of an employee who died from a gunshot wound was accidental and arose out of his employment. Horton v. Powell Plumbing & Heating of N.C. Inc., 135 N.C. App. 211, 519 S.E.2d 550 (1999).

Plaintiff, who had been employed by defendant for five years in an office job before her work-related injury and who testified that she was not yet proficient in defendant's filling department, was not performing her usual work routine at the time of accidental injury on her fifth day on the production line; thus, the commission's conclusion that the plaintiff suffered an injury by accident was accordingly upheld. Church v. Baxter Travenol Labs., Inc., 104 N.C. App. 411, 409 S.E.2d 715 (1991).

Circumstances sufficient to constitute an interruption of a given work routine typically involve an undertaking by the employee of duties not usual and customary. Poe v. Acme Bldrs., 69 N.C. App. 147, 316 S.E.2d 338, cert. denied, 311 N.C. 762, 321 S.E.2d 143 (1984).

The assigning of an employee to a particular task where the work routine for the employee involves a variety of tasks does not necessarily constitute an interruption of the work. Poe v. Acme Bldrs., 69 N.C. App. 147, 316 S.E.2d 338, cert. denied, 311 N.C. 762, 321 S.E.2d 143 (1984).

An injury which occurs under normal work conditions is not considered an accident arising out of employment, and work conditions may be considered normal despite the presence of changed circumstances. Trudell v. Seven Lakes Heating & Air Conditioning Co., 55 N.C. App. 89, 284 S.E.2d 538 (1981).

An injury which occurs under normal work conditions is not considered an accident arising out of employment. Poe v. Acme Bldrs., 69 N.C. App. 147, 316 S.E.2d 338, cert. denied, 311 N.C. 762, 321 S.E.2d 143 (1984).

Once an activity, even a strenuous or otherwise unusual activity, becomes a part of the employee's normal work routine, an injury caused by such activity is not the result of an interruption of the work routine or otherwise an "injury by accident" under the Workers' Compensation Act. Bowles v. CTS of Asheville, Inc., 77 N.C. App. 547, 335 S.E.2d 502 (1985).

No matter how great the injury, if it is caused by an event that involves both an employee's normal work routine and normal working conditions it will not be considered to have been caused by an accident. Swindell v. Davis Boat Works, Inc., 78 N.C. App. 393, 337 S.E.2d 592 (1985), cert. denied and appeal dismissed, 316 N.C. 385, 342 S.E.2d 908 (1986).

The Industrial Commission's conclusion of law that plaintiff did not sustain a compensable injury was adequately supported by its finding that plaintiff 's back pain was not the result of any interruption of her normal work routine, in that plaintiff was doing her usual job in her usual and customary manner, and was not the result of any specific traumatic incident, in that plaintiff had experienced back pain over an extended period of time. Causby v. Bernhardt Furn. Co., 83 N.C. App. 650, 351 S.E.2d 106 (1986).

There must be some new circumstance not a part of usual work routine in order to find that an accident has occurred. Swindell v. Davis Boat Works, Inc., 78 N.C. App. 393, 337 S.E.2d 592 (1985), cert. denied and appeal dismissed, 316 N.C. 385, 342 S.E.2d 908 (1986).

North Carolina Industrial Commission's finding that pulling wire sometimes in awkward positions was a normal part of a workers' compensation claimant's job routine was not dispositive of whether the claimant's injury was by accident under G.S. 97-2(6); the dispositive question was whether the totality of the conditions under which the claimant worked at the time of the injury were "usual tasks in the usual way" expected of an electrician working for the employer. Griggs v. Eastern Omni Constructors, 158 N.C. App. 480, 581 S.E.2d 138 (2003).

Accident Must Have Had Origin in a Risk Connected with Employment. - To be compensable, the accident need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence. Pittman v. Twin City Laundry & Cleaners, 61 N.C. App. 468, 300 S.E.2d 899 (1983).

An accident has a reasonable relationship to the employment when it is the result of a risk or hazard incident to the employment. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968).

And some risk inherent to the employment must be a contributing proximate cause of the injury and the risk must be enhanced by the employment and must be one to which the worker would not have been equally exposed apart from the employment. Pittman v. Twin City Laundry & Cleaners, 61 N.C. App. 468, 300 S.E.2d 899 (1983).

There must be competent evidence to support the inference that the accident in question resulted in the injury complained of, i.e., some evidence that the accident at least might have or could have produced the particular disability in question. Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 265 S.E.2d 389 (1980).

Death from injury by accident implies a result produced by a fortuitous cause. Slade v. Willis Hosiery Mills, 209 N.C. 823, 184 S.E. 844 (1936); Hensley v. Farmers Fed'n Coop., 246 N.C. 274, 98 S.E.2d 289 (1957); Harding v. Thomas & Howard Co., 256 N.C. 427, 124 S.E.2d 109 (1962); O'Mary v. Land Clearing Corp., 261 N.C. 508, 135 S.E.2d 193 (1964); Jackson v. North Carolina State Hwy. Comm'n, 272 N.C. 697, 158 S.E.2d 865 (1968).

Physical exertion may in and of itself be the precipitating cause of an injury by accident within the meaning of this section. Hollar v. Montclair Furn. Co., 48 N.C. App. 489, 269 S.E.2d 667 (1980).

Evidence of the necessity of extreme exertion is sufficient to bring into an event causing an injury the necessary element of unusualness and unexpectedness from which accident may be inferred. Porter v. Shelby Knit, Inc., 46 N.C. App. 22, 264 S.E.2d 360 (1980).

Extra exertion by the employee, resulting in injury, may qualify as an injury by accident. Jackson v. North Carolina State Hwy. Comm'n, 272 N.C. 697, 158 S.E.2d 865 (1968).

It is well-settled in this State that an extra or unusual degree of exertion by an employee while performing a job may constitute the unforeseen or unusual event or condition necessary to make any resulting injury an injury "by accident." Jackson v. Fayetteville Area Sys. of Transp., 88 N.C. App. 123, 362 S.E.2d 569 (1987).

Injury arising out of lifting objects in the ordinary course of an employee's business is not caused by accident where such activity is performed in the ordinary manner, free from confining or otherwise exceptional conditions and surroundings. Beamon v. Stop & Shop Grocery, 27 N.C. App. 553, 219 S.E.2d 508 (1975); Curtis v. Carolina Mechanical Sys., 36 N.C. App. 621, 244 S.E.2d 690 (1978).

Injury to Nurse Lifting Patient. - Where labor and delivery nurse injured herself while lifting the legs of a 263 pound woman in order to facilitate delivery, the evidence did not support the Industrial Commission's denial of compensation based on the finding that plaintiff's injuries "occurred while performing her usual employment duties in the usual way." Calderwood v. Charlotte-Mecklenburg Hosp. Auth., 135 N.C. App. 112, 519 S.E.2d 61 (1999).

Where employee was not engaged in his routine duties in his customary fashion at the time he sustained an injury to his back, the injury was accidental and compensable. Sanderson v. Northeast Constr. Co., 77 N.C. App. 117, 334 S.E.2d 392 (1985), decision prior to the 1983 amendment to subdivision (6).

Insufficient to Show that Activity Caused No Pain in Past. - It is insufficient as a matter of law to show only that in the past a regular activity caused no pain and that the same activity now causes pain; there must be a specific fortuitous event, rather than a gradual build-up of pain, in order to show injury by accident. Bowles v. CTS of Asheville, Inc., 77 N.C. App. 547, 335 S.E.2d 502 (1985).

Damage to heart tissue clearly precipitated or caused by "overexertion" constitutes an injury by accident. Weaver v. Swedish Imports Maintenance, Inc., 61 N.C. App. 662, 301 S.E.2d 736 (1983).

Death from Heart Disease. - Ordinarily a death from heart disease is not an injury by accident arising out of and in the course of the employment, nor an occupational disease, so as to be compensable. Bellamy v. Morace Stevedoring Co., 258 N.C. 327, 128 S.E.2d 395 (1962).

Cardiac Arrhythmia. - Defendant presented sufficient evidence to rebut the presumption under Pickrell v. Motor Convoy, Inc., 322 N.C. 363, 368 S.E.2d 582 (1988), that decedent sustained an injury by accident, where the evidence indicated that there was nothing unusual about the route, the hours, or the amount or type of deliveries required of decedent on the day of his death, and that the cause of his death was cardiac arrhythmia, which was a sudden, fatal irregular heart beat, precipitated by the severe ischemic heart disease, and where the autopsy revealed no evidence of trauma. Bason v. Kraft Food Serv., Inc., 140 N.C. App. 124, 535 S.E.2d 606 (2000).

Heart Attack. - When one is carrying on his usual work in the usual way and suffers a heart attack, the injury does not arise by accident out of and in the course of employment. Jackson v. North Carolina State Hwy. Comm'n., 272 N.C. 697, 158 S.E.2d 865 (1968).

Deaths from heart attacks which occur in the usual course of employment are not compensable. Jackson v. North Carolina State Hwy Comm'n, 272 N.C. 697, 158 S.E.2d 865 (1968).

Where an injury is caused by a heart attack, the plaintiff must show that it was precipitated by some unusual or extraordinary exertion. Dillingham v. Yeargin Constr. Co., 82 N.C. App. 684, 348 S.E.2d 143 (1986), rev'd on other grounds, 320 N.C. 499, 358 S.E.2d 380 (1987).

Evidence that the room temperature in the nuclear power plant was 85 degrees and that the worker suffered heat exhaustion while wearing a radiation suit which inhibited his body's ability to radiate heat unequivocally demonstrated that the worker was exposed to an increased risk of heat-related illness because of his employment and that the worker's subsequent cardiac arrest was a compensable "accident." Dillingham v. Yeargin Constr. Co., 320 N.C. 499, 358 S.E.2d 380, cert. denied, 320 N.C. 639, 360 S.E.2d 84 (1987).

Deceased employee's widow failed to meet her burden of proof under G.S. 97-2(6) where she did not show that the employee's death from a heart attack was a result of an accident in the course and scope of employment; accordingly, her application for workers' compensation benefits was properly denied. Gray v. UPS, 226 N.C. App. 15, 739 S.E.2d 590 (2013), review denied, 747 S.E.2d 554, 2013 N.C. LEXIS 864 (2013).

Heart Attack Held to Be Accident. - Where decedent's heart attack followed a period of unusually high exertion which was unusual and not a normal part of his work routine, there was competent evidence to support the findings that death was an accident within the meaning of the Workers' Compensation Act. Wall v. North Hills Properties, Inc., 125 N.C. App. 357, 481 S.E.2d 303 (1997), cert. denied, 346 N.C. 289, 487 S.E.2d 573 (1997).

Death of a fireman from heart failure brought on by excitement and exhaustion in fighting a fire is not the result of an accident within the meaning of the Workers' Compensation Act, heat, smoke, excitement, and physical exertion being the ordinary and expected incidents of the employment. Neely v. City of Statesville, 212 N.C. 365, 193 S.E. 664 (1937). See also Lewter v. Abercrombie Enters., 240 N.C. 399, 82 S.E.2d 410 (1954).

Amendment to G.S. 97-53 by Session Laws 1949, c. 1078, so as to make certain heart diseases compensable as occupational diseases when contracted by firemen was held unconstitutional in Duncan v. City of Charlotte, 234 N.C. 86, 66 S.E.2d 22 (1951) and Davis v. City of Winston-Salem, 234 N.C. 95, 66 S.E.2d 28 (1951). See 30 N.C.L. Rev. 98 (1951).

Aneurysm Caused by Stress and Excitement While Deputy Sheriff Performed CPR. - Employee's aneurysm, caused by stress and excitement while the employee was performing cardiopulmonary resuscitation (CPR) on a victim while working as deputy sheriff, was compensable; CPR was seldom done by deputies, and the testimony of the employee's doctor as to cause of the aneurysm was unequivocal and not speculative. Ferreyra v. Cumberland County, 175 N.C. App. 581, 623 S.E.2d 825 (2006).

Injury While Shifting Position. - Where plaintiff, a carpenter, was hired to perform a number of tasks connected with employer's home improvement business, injury which occurred when he shifted his position while shingling a roof was deemed to have occurred under normal work conditions, and was not compensable as an injury suffered as the result of an accident. Poe v. Acme Bldrs., 69 N.C. App. 147, 316 S.E.2d 338, cert. denied, 311 N.C. 762, 321 S.E.2d 143 (1984).

Rupture of Intervertebral Disc. - To sustain an award of compensation in ruptured or slipped disc cases, the injury to be classed as arising by accident must involve more than merely carrying on the usual and customary duties in the usual way. Harding v. Thomas & Howard Co., 256 N.C. 427, 124 S.E.2d 109 (1962); Byrd v. Farmers Fed'n Coop., 260 N.C. 215, 132 S.E.2d 348 (1963); Lawrence v. Hatch Mill, 265 N.C. 329, 144 S.E.2d 3 (1965); Dunton v. Daniel Constr. Co., 19 N.C. App. 51, 198 S.E.2d 8 (1973); Pulley v. Migrant & Seasonal Farm-Workers Ass'n, 30 N.C. App. 94, 226 S.E.2d 227 (1976); Key v. Wagner Woodcraft, Inc., 33 N.C. App. 310, 235 S.E.2d 254 (1977).

An injury to the back from a herniated disc does not arise by accident if the employee at the time is merely carrying on his usual and customary duties in the usual way. Byrd v. Farmers Fed'n Coop., 260 N.C. 215, 132 S.E.2d 348 (1963).

Degenerative disc condition which is a gradual deterioration occurring over the years is excluded from the definition of "accident." Griffitts v. Thomasville Furn. Co., 65 N.C. App. 369, 309 S.E.2d 277 (1983), cert. denied, 310 N.C. 477, 312 S.E.2d 884 (1984).

Back Injury. - A back injury or hernia suffered by an employee does not arise by accident if the employee at the time was merely carrying out his usual and customary duties in the usual way. Lawrence v. Hatch Mill, 265 N.C. 329, 144 S.E.2d 3 (1965).

Back Injury Resulting from Specific Traumatic Incident at Cognizable Time. - Where a 57-year-old woman, who performed secretarial tasks for her employer, suffered back pain the day after she helped carry a heavy, unwieldy spotlight up a flight of steps while walking backwards and bending over at the waist, and where the activity was not within her normal work routine, the claimant's injury resulted from a specific traumatic incident that occurred at a cognizable time. Beam v. Floyd's Creek Baptist Church, 99 N.C. App. 767, 394 S.E.2d 191 (1990).

Back Injury Resulting from Traumatic Incident at Unknown Time. - Plaintiff employee's disabling back injury was shown to be a result of traumatic injury and was compensable under G.S. 97-2(6), despite some uncertainty as to the exact date the injury occurred. Gregory v. W.A. Brown & Sons, 192 N.C. App. 94, 664 S.E.2d 589 (2008), review denied, appeal dismissed, 363 N.C. 123 (2009).

Specific Traumatic Incidents. - A specific traumatic incident need not involve unusual conditions or a departure from the claimant's normal work routine. Lettley v. Trash Removal Serv., 91 N.C. App. 625, 372 S.E.2d 747 (1988).

Back injuries that occur gradually, over long periods of time, are not specific traumatic incidents; however, events which occur contemporaneously, during a cognizable time period, and which cause a back injury, do fit the definition intended by the legislature. Richards v. Town of Valdese, 92 N.C. App. 222, 374 S.E.2d 116 (1988), cert. denied, 324 N.C. 337, 378 S.E.2d 799 (1989).

A "specific traumatic incident" could occur during a "cognizable time" of two hours but in every case there must be evidence of proximate cause between the "specific traumatic incident" and the injury. Livingston v. James C. Fields & Co., 93 N.C. App. 336, 377 S.E.2d 788 (1989).

Specific Traumatic Incident Not Shown. - Finding that employee suffered a cervical spine condition as the result of a specific traumatic incident was not supported by competent evidence; the evidence showed that the employee experienced pain on a particular date, but the employee presented no evidence linking that pain to the occurrence of an injury. Chambers v. Transit Mgmt., 360 N.C. 609, 636 S.E.2d 553 (2006).

"Specific traumatic incident" amendment to subdivision (6) was intended to supplement the law related to back injuries, not to supplant it. The effect of the amendment was to eliminate the need to show an external cause or unusual conditions in order for a worker to receive compensation for a back injury. Instead, what may be shown is that the back injury arose in the course of the employment and that the injury was "the direct result of a specific traumatic incident of the work assigned." Caskie v. R.M. Butler & Co., 85 N.C. App. 266, 354 S.E.2d 242 (1987).

The 1983 amendment to subdivision (6) relaxes the requirement that there be some unusual circumstance that accompanies a back injury. Richards v. Town of Valdese, 92 N.C. App. 222, 374 S.E.2d 116 (1988), cert. denied, 324 N.C. 337, 378 S.E.2d 799 (1989).

Back injuries that occur gradually, over long periods of time, are not specific traumatic incidents; however, events which occur contemporaneously, during a cognizable time period, and which cause a back injury, do fit the definition intended by the legislature. Glynn v. Pepcom Indus., Inc., 122 N.C. App. 348, 469 S.E.2d 588 (1996).

The onset of pain is not a "specific traumatic incident" that will determine whether compensation for a back injury will be allowed pursuant to the act; rather, pain is as a general rule the result of a "specific traumatic incident." Roach v. Lupoli Constr. Co., 88 N.C. App. 271, 362 S.E.2d 823 (1987).

Injury to Back Must Be Causally Related. - Even if a specific traumatic incident occurs to constitute a compensable "injury by accident" there must be a "disabling physical injury to the back arising out of and causally related to such incident." Lettley v. Trash Removal Serv., 91 N.C. App. 625, 372 S.E.2d 747 (1988).

Back Injury and Pain Need Not Occur Simultaneously. - Just because claimant felt pain for the first time hours after he allegedly injured his back did not mean that the "specific traumatic incident" could not have occurred when he said it did. Logic dictates that injury and pain do not have to occur simultaneously for claimant to establish that he sustained a compensable injury. Roach v. Lupoli Constr. Co., 88 N.C. App. 271, 362 S.E.2d 823 (1987).

Evidence Supported Finding of Back Injury. - Based on evidence that repeated lifting of cases of cigarettes, coupled with twisting and contorting in a cramped area to reach in behind and on top of cigarette display rack, was not part of plaintiff 's job routine, and the commission's finding that plaintiff had never performed as much repetitious lifting and stacking of cases on a single day as she did on the date of her back injury, under existing case law, without deciding the issue of specific traumatic incident, the commission should have concluded that plaintiff 's back injury was an injury by accident arising out of and in the course of employment, thereby qualifying as a compensable injury under the first sentence of subdivision (6). Caskie v. R.M. Butler & Co., 85 N.C. App. 266, 354 S.E.2d 242 (1987).

Where volunteer fireman could point to a series of contemporaneous events which could have caused his back injury, it was error for the commission to conclude as a matter of law that employee suffered no injury as a result of a specific traumatic injury. Richards v. Town of Valdese, 92 N.C. App. 222, 374 S.E.2d 116 (1988), cert. denied, 324 N.C. 337, 378 S.E.2d 799 (1989).

Evidence Insufficient to Find Back Injury. - Where plaintiff injured her back during her previous employment, was treated for back pain over a period of time, and the pain which plaintiff experienced during her employment with defendant was in the same area of her back that had been injured during plaintiff's prior employment, there was competent evidence to support the Commission's findings and conclusion that plaintiff's back condition was neither caused by nor aggravated by an injury, by accident or by specific traumatic incident at her new employment. Thompson v. Tyson Foods, Inc., 119 N.C. App. 411, 458 S.E.2d 746 (1995).

Denial of workers' compensation benefits was upheld because the employee failed to prove any of the employee's alleged occupational diseases or injuries resulted from the employee's employment; among other things, an expert acknowledged that the employee did not have any documented cause for employee's cervical condition and that the expert's opinion of causation was mere speculation. Lanier v. Eddie Romanelle's, 192 N.C. App. 166, 664 S.E.2d 609 (2008).

Employer's Knowledge of Earlier Injury Did Not Make Injury Compensable. - Finding of the Commission that plaintiff 's back injury was not accidental, in that the evidence failed to disclose an interruption of plaintiff 's normal work routine, which involved the regular and repetitive lifting, albeit without usage of his left hand, was supported by the evidence, despite plaintiff 's argument that because his employer knew of disability certificate given him by his physician following an earlier hand injury but nonetheless assigned him duties which involved lifting heavy objects, the injury occurred as a matter of law outside his normal work routine. Pittman v. Inco, Inc., 78 N.C. App. 134, 336 S.E.2d 637 (1985), cert. denied, 315 N.C. 589, 341 S.E.2d 28 (1986).

Death by violent means is prima facie evidence of death by accident. McGill v. Town of Lumberton, 215 N.C. 752, 3 S.E.2d 324 (1939).

The burden of proving suicide is upon the party seeking to establish it. McGill v. Town of Lumberton, 215 N.C. 752, 3 S.E.2d 324 (1939).

Employee Found Dead or Injured at His Place of Employment. - Deceased was required to report to work before daylight. On the particular morning in question, he was told to return later in the day. At daylight he was found in a dying condition at the base of an unlighted platform on defendant's premises. Deceased had to cross the platform to leave the premises. It was held that there was sufficient evidence to sustain the finding that the accident arose out of deceased's employment. Morgan v. Cleveland Cloth Mills, 207 N.C. 317, 177 S.E. 165 (1934).

Where claimants' evidence tended to show that deceased was employed as chief of police of defendant municipality and that deceased died as a result of a shot from a pistol while he was in office, proof of death by violence raised a presumption of accidental death, casting the burden of going forward with the evidence upon the employer and insurance carrier to show that deceased killed himself; and claimants' evidence was sufficient to support the finding of the Industrial Commission that death resulted from an accident arising out of and in the course of the employment. McGill v. Town of Lumberton, 218 N.C. 586, 11 S.E.2d 873 (1940).

Evidence tending to show that deceased came to his death as a result of a pistol wound while at a place where he had a right to be in the course of his employment, without evidence that he was authorized to keep a pistol or to use it in the business of the employer, was insufficient to support an award of compensation on the ground that in the absence of a showing of suicide it would be presumed that the death resulted from an accident, since, even so, there was neither presumption nor evidence to support the necessary basis for compensation that the accident arose out of the employment. Bolling v. Belk-White Co., 228 N.C. 749, 46 S.E.2d 838 (1948).

Intentional Injurious Acts Excluded. - The qualifications that an accident cannot be expected or designed operate narrowly to exclude intentional injurious acts. Searsey v. Perry M. Alexander Constr. Co., 35 N.C. App. 78, 239 S.E.2d 847, cert. denied, 294 N.C. 736, 244 S.E.2d 154 (1978).

Injury Resulting from Fellow Employees' Negligence. - An injury suffered by an employee while engaged in his master's business within the scope of his employment proximately resulting from the negligence of fellow employees is, as to the employee, an "accident" arising out of and in the course of his employment. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968).

Claim for Negligent Infliction of Emotional Distress Resulting from Accident Barred by Workers' Compensation Exclusivity. - As an employer's willful and wanton negligence in handling a former employee's harassment complaint was an "accident" (an unlooked for and untoward event), and as her injury arose out of and was sustained in the course of her employment, her negligent infliction of emotional distress claim against the employer was barred by workers' compensation exclusivity. Shaw v. Goodyear Tire & Rubber Co., 225 N.C. App. 90, 737 S.E.2d 168 (2013), review denied 367 N.C. 204, 748 S.E.2d 323, 2013 N.C. LEXIS 1010 (2013).

Acts of negligence of the employee do not bar compensation for an original injury arising out of and in the course of employment. Starr v. Charlotte Paper Co., 8 N.C. App. 604, 175 S.E.2d 342 (1970); Bartlett v. Duke Univ., 17 N.C. App. 598, 195 S.E.2d 371, rev'd on other grounds, 284 N.C. 230, 200 S.E.2d 193 (1973).

Injury by Accident Distinguished from Occupational Disease. - An injury by accident, as that term is ordinarily understood, is distinguished from an occupational disease in that the former rises from a definite event, the time and place of which can be fixed, while the latter develops gradually over a long period of time. Henry v. Lawrence Leather Co., 234 N.C. 126, 66 S.E.2d 693 (1951).

Injury Not By Accident. - North Carolina Industrial Commission did not fail to make sufficient findings of fact and conclusions of law with respect to whether an employee's Achilles tendon injury was an injury by accident under the Workers' Compensation Act, G.S. 97-2(6) because the evidence supported the Commission's finding that there was no unusual or unforeseen circumstance interrupting the employee's normal work routine when he sustained the injury to his Achilles tendon; the employee's testimony indicated that he routinely would have to step backward off the flat portion of a crosswalk, that in doing so, he would often step onto the inclined section. that during the incident nothing hit him or tripped him, and that there was nothing wrong with the crosswalk. Gray v. RDU Airport Auth., 203 N.C. App. 521, 692 S.E.2d 170 (2010).

Accident Held Compensable - North Carolina Industrial Commission did not err in determining that the employee was injured as a result of a compensable accident arising out of and in the course of the employee's employment, rather than as a result of an idiopathic condition independent of the employee's employment, where there was contradictory evidence as to whether the employee had a seizure, there were no witnesses to the fall, and there was evidence that being atop a ladder was dangerous. Rackley v. Coastal Painting, 153 N.C. App. 469, 570 S.E.2d 121 (2002).

Determination by the North Carolina Industrial Commission's that the employee's work-related injury was compensable was supported by competent evidence and in accordance with applicable law; the employee was asked to do the weaving for the three days while the weaver was on vacation, the bobbins weighed between 20 and 22 pounds, and lifting was not a regular part of the employee's job. Moose v. Hexcel-Schwebel, 163 N.C. App. 177, 592 S.E.2d 615 (2004).

Evidence Sufficient. - Sufficient evidence supported a disability finding where the worker's right hand was crushed and nearly amputated to such an extent that he had not regained any use of the hand. Campos-Brizuela v. Rocha Masonry, L.L.C., 216 N.C. App. 208, 716 S.E.2d 427 (2011).

VI. ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT.

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A. IN GENERAL.

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"Out of and in the Course of " Construed. - An accident arises out of and in the course of the employment when it occurs while the employee is engaged in some activity or duty which he is authorized to undertake and which is calculated to further, directly or indirectly, the employer's business. Perry v. American Bakeries Co., 262 N.C. 272, 136 S.E.2d 643 (1964); Bryan v. First Free Will Baptist Church, 267 N.C. 111, 147 S.E.2d 633 (1966); Clark v. Burton Lines, 272 N.C. 433, 158 S.E.2d 569 (1968); Martin v. Georgia-Pacific Corp., 5 N.C. App. 37, 167 S.E.2d 790 (1969); Martin v. Bonclarken Ass'y, 296 N.C. 540, 251 S.E.2d 403 (1979); Long v. Asphalt Paving Co., 47 N.C. App. 564, 268 S.E.2d 1 (1980); Hoyle v. Isenhour Brick & Tile Co., 306 N.C. 248, 293 S.E.2d 196 (1982); Powers v. Lady's Funeral Home, 306 N.C. 728, 295 S.E.2d 473 (1982).

The words "out of " refer to the origin or cause of the accident. The words "in the course of " refer to the time, place, and circumstances under which an accident occurs. Ridout v. Rose's 5-10-25 › Stores, 205 N.C. 423, 171 S.E. 642 (1933); Plemmons v. White's Serv., 213 N.C. 148, 195 S.E. 370 (1938); Wilson v. Town of Mooresville, 222 N.C. 283, 22 S.E.2d 907 (1942); Brown v. Carolina Aluminum Co., 224 N.C. 766, 32 S.E.2d 320 (1944); Taylor v. Town of Wake Forest, 228 N.C. 346, 45 S.E.2d 387 (1947); Withers v. Black, 230 N.C. 428, 53 S.E.2d 668 (1949); Matthews v. Carolina Std. Corp., 232 N.C. 229, 60 S.E.2d 93 (1950); Berry v. Colonial Furn. Co., 232 N.C. 303, 60 S.E.2d 97 (1950); Bell v. Dewey Bros., 236 N.C. 280, 72 S.E.2d 680 (1952); Sweatt v. Rutherford County Bd. of Educ., 237 N.C. 653, 75 S.E.2d 738 (1953); Lewter v. Abercrombie Enters., 240 N.C. 399, 82 S.E.2d 410 (1954); Zimmerman v. Elizabeth City Freezer Locker, 244 N.C. 628, 94 S.E.2d 813 (1956); Hardy v. Small, 246 N.C. 581, 99 S.E.2d 862 (1957); Sandy v. Stackhouse, Inc., 258 N.C. 194, 128 S.E.2d 218 (1962); Bass v. Mecklenburg County, 258 N.C. 226, 128 S.E.2d 570 (1962); Cole v. Guilford County, 259 N.C. 724, 131 S.E.2d 308 (1963); Bryan v. First Free Will Baptist Church, 267 N.C. 111, 147 S.E.2d 633 (1966); Clark v. Burton Lines, 272 N.C. 433, 158 S.E.2d 569 (1968); Robinson v. North Carolina State Hwy. Comm'n, 13 N.C. App. 208, 185 S.E.2d 333 (1971); Enroughty v. Black Indus., Inc., 13 N.C. App. 400, 185 S.E.2d 597, cert. denied, 280 N.C. 721, 186 S.E.2d 923 (1972); Battle v. Bryant Elec. Co., 15 N.C. App. 246, 189 S.E.2d 788, cert. denied, 281 N.C. 755, 191 S.E.2d 353 (1972); Lee v. F.M. Henderson & Assocs., 17 N.C. App. 475, 195 S.E.2d 48, aff'd, 284 N.C. 126, 200 S.E.2d 32 (1973); Bartlett v. Duke Univ., 17 N.C. App. 598, 195 S.E.2d 371, rev'd on other grounds, 284 N.C. 230, 200 S.E.2d 193 (1973); Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E.2d 577 (1976); Goldston v. Goldston Concrete Works, Inc., 29 N.C. App. 717, 225 S.E.2d 332, cert. denied, 290 N.C. 660, 228 S.E.2d 452 (1976); Gallimore v. Marilyn's Shoes, 292 N.C. 399, 233 S.E.2d 529 (1977); Barham v. Food World, Inc., 300 N.C. 329, 266 S.E.2d 676, rehearing denied, 300 N.C. 562, 270 S.E.2d 105 (1980); Hoyle v. Isenhour Brick & Tile Co., 306 N.C. 248, 293 S.E.2d 196 (1982); Pittman v. Twin City Laundry & Cleaners, 61 N.C. App. 468, 300 S.E.2d 899 (1983).

An accident occurring during the course of employment does not ipso facto arise out of it. Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972); Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E.2d 577 (1976); Smith v. Dacotah Cotton Mills, Inc., 31 N.C. App. 687, 230 S.E.2d 772 (1976).

As the phrases "arising out of " and "in the course of " are not synonymous; they involve two ideas and impose a double condition, both of which must be satisfied in order to bring a case within the act. Sweatt v. Rutherford County Bd. of Educ., 237 N.C. 653, 75 S.E.2d 738 (1953); Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972); Battle v. Bryant Elec. Co., 15 N.C. App. 246, 189 S.E.2d 788, cert. denied, 281 N.C. 755, 191 S.E.2d 353 (1972); Gallimore v. Marilyn's Shoes, 292 N.C. 399, 233 S.E.2d 529 (1977); Martin v. Bonclarken Ass'y, 296 N.C. 540, 251 S.E.2d 403 (1979); Barham v. Food World, Inc., 300 N.C. 329, 266 S.E.2d 676, rehearing denied, 300 N.C. 562, 270 S.E.2d 105 (1980); Brown v. Jim Brown's Serv. Station, 45 N.C. App. 255, 262 S.E.2d 700 (1980); Hoyle v. Isenhour Brick & Tile Co., 306 N.C. 248, 293 S.E.2d 196 (1982); Powers v. Lady's Funeral Home, 57 N.C. App. 25, 290 S.E.2d 720, rev'd on other grounds, 306 N.C. 728, 295 S.E.2d 473 (1982).

To be compensable under the act an injury must arise out of and be received in the course of employment. Two ideas are involved here. The words "in the course of " refer to the time, place, and circumstances surrounding the accident, while the words "arising out of " have reference to the causal connection between the injury and the employment. Davis v. North State Veneer Corp., 200 N.C. 263, 156 S.E. 859 (1931); Parrish v. Armour & Co., 200 N.C. 654, 158 S.E. 188 (1931); Walker v. Wilkins, Inc., 212 N.C. 627, 194 S.E. 89 (1937); McGill v. Town of Lumberton, 215 N.C. 752, 3 S.E.2d 324 (1939); Matthews v. Carolina Std. Corp., 232 N.C. 229, 60 S.E.2d 93 (1950); Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968); Forsythe v. INCO, 95 N.C. App. 742, 384 S.E.2d 30 (1989).

The phrase "arising out of and in the course of employment" encompasses two separate and distinct concepts - "out of " and "in the course of " - both of which must be satisfied in order for particular injuries to be compensable under the act. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968); Murray v. Biggerstaff, 81 N.C. App. 377, 344 S.E.2d 550, cert. denied, 318 N.C. 696, 350 S.E.2d 858 (1986).

The term "arising out of " refers to the origin of the injury or the causal connection of the injury to the employment, while the term "in the course of " refers to the time, place and circumstances under which the injury occurred. Schmoyer v. Church of Jesus Christ of Latter Day Saints, 81 N.C. App. 140, 343 S.E.2d 551, cert. denied, 318 N.C. 417, 349 S.E.2d 600 (1986).

But They Are Not Applied Entirely Independently. - In practice, the "course of employment" and "arising out of employment" tests are not, and should not be, applied entirely independently; they are both parts of a single test of work-connection, and therefore deficiencies in the strength of one factor are sometimes allowed to be made up by strengths in the other. Lee v. F.M. Henderson & Assocs., 284 N.C. 126, 200 S.E.2d 32 (1973); Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E.2d 577 (1976).

Deficiencies in One Factor May Be Made Up by the Other. - Since the terms of the Workers' Compensation Act should be liberally construed in favor of compensation, deficiencies in one factor are sometimes allowed to be made up by strength in the other. Hoyle v. Isenhour Brick & Tile Co., 306 N.C. 248, 293 S.E.2d 196 (1982).

Natural Consequences of Primary Injury Arising Out of and in Course of Employment. - When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant's own intentional conduct. Thus, a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct and natural result of a compensable primary injury. Starr v. Charlotte Paper Co., 8 N.C. App. 604, 175 S.E.2d 342 (1970).

Mixed Question of Law and Fact. - Whether an injury by accident arises out of and in the course of the employment is a mixed question of law and of fact. Hardy v. Small, 246 N.C. 581, 99 S.E.2d 862 (1957); Bryan v. First Free Will Baptist Church, 267 N.C. 111, 147 S.E.2d 633 (1966); Enroughty v. Black Indus., Inc., 13 N.C. App. 400, 185 S.E.2d 597, cert. denied, 280 N.C. 721, 186 S.E.2d 923 (1972); Lee v. F.M. Henderson & Assocs., 17 N.C. App. 475, 195 S.E.2d 48, aff'd, 284 N.C. 126, 200 S.E.2d 32 (1973); Goldston v. Goldston Concrete Works, Inc., 29 N.C. App. 717, 225 S.E.2d 332, cert. denied, 290 N.C. 660, 228 S.E.2d 452 (1976); Long v. Asphalt Paving Co., 47 N.C. App. 564, 268 S.E.2d 1 (1980); Schmoyer v. Church of Jesus Christ of Latter Day Saints, 81 N.C. App. 140, 343 S.E.2d 551, cert. denied, 318 N.C. 417, 349 S.E.2d 600 (1986); Pittman v. International Paper Co., 132 N.C. App. 151, 510 S.E.2d 705 (1999), cert. denied, 350 N.C. 310, 534 S.E.2d 596 (1999), aff'd, 351 N.C. 42, 519 S.E.2d 524 (1999).

Conclusive Effect of Commission's Findings. - Whether an employee sustained an injury by accident arising out of and in the course of his employment with the defendant employer resulting in his death is a mixed question of law and fact, and the finding of the Commission as to the factual portion is conclusive if supported by any competent evidence. McManus v. Chick Haven Farms, 4 N.C. App. 177, 166 S.E.2d 526 (1969).

The issue of whether a particular accident arises out of and in the course of employment is a mixed question of fact and law, and appellate review is limited on appeal to the question of whether the findings and conclusions are supported by competent evidence. Hoyle v. Isenhour Brick & Tile Co., 306 N.C. 248, 293 S.E.2d 196 (1982).

Whether an injury arose out of and in the course of employment is a mixed question of fact and law, and where there is evidence to support the Commission's findings, the appellate court is bound by them. Hemric v. Reed & Prince Mfg. Co., 54 N.C. App. 314, 283 S.E.2d 436 (1981), cert. denied, 304 N.C. 726, 288 S.E.2d 806 (1982); Hoffman v. Ryder Truck Lines, 306 N.C. 502, 293 S.E.2d 807 (1982).

Injury While Performing Task Which Was Not Part of Job. - Where it was not a part of the plaintiff 's job to clean tote tank, the tote tank was not supposed to be cleaned and the cleaning of it did not further the business of the employer, the Industrial Commission was correct in concluding that plaintiff was "not about his work" when he was overcome by fumes while cleaning the tote tank. Parker v. Burlington Indus., Inc., 78 N.C. App. 517, 337 S.E.2d 589 (1985).

Where the employer did not own or control the public street on which plaintiff was injured, where plaintiff was not performing any duties for employer at the time of the injury and was not exposed to any greater danger than that of the public generally, plaintiff did not suffer an injury arising out of and in the course of his employment. Royster v. Culp, Inc., 343 N.C. 279, 470 S.E.2d 30 (1996).

Cocktail waitress's injuries sustained when she tried to escape from a guest of the resort who had kidnapped and sexually assaulted her, arose out of and in the course of her employment, even though the attack occurred after the employee's workday ended when she stopped on a resort road to assist the guest, who she assumed had car trouble. Culpepper v. Fairfield Sapphire Valley, 93 N.C. App. 242, 377 S.E.2d 777, aff'd, 325 N.C. 702, 386 S.E.2d 174 (1989).

If employee does something which he is not specifically ordered not to do by a then present superior and the thing he does furthers the business of the employer although it is not a part of the employee's job, an injury sustained by accident while he is so performing is in the course of employment. This has been characterized as "being about his work." Parker v. Burlington Indus., Inc., 78 N.C. App. 517, 337 S.E.2d 589 (1985).

A volunteer fireman, who is injured by the negligence of a fellow volunteer fireman, at a time when both are acting in the course and scope of their duties, is barred from pursuing a negligence action against the fellow fireman. Hix v. Jenkins, 118 N.C. App. 103, 453 S.E.2d 551 (1995).

Normal Work Routine. - Because climbing stairs to an employee's second-floor classroom became a part of the employee's normal work routine after a month and was not a new condition of employment, the employee did not sustain an injury by accident arising out of and in the course of employment under G.S. 97-2(6) when the employee suffered a knee injury while climbing the stairs and was not entitled to workers' compensation benefits. Shay v. Rowan Salisbury Sch., 205 N.C. App. 620, 696 S.E.2d 763 (2010).

Insect Stings. - To be compensable, an insect sting must be an injury by accident which arose out of and in the course of plaintiff's employment. Minter v. Osborne Co., 127 N.C. App. 134, 487 S.E.2d 835 (1997), cert. denied, 347 N.C. 401, 494 S.E.2d 415 (1997).

The increased risk test is the appropriate test for ascertaining whether an employee's injuries from an insect sting arose out of his employment. Minter v. Osborne Co., 127 N.C. App. 134, 487 S.E.2d 835 (1997), cert. denied, 347 N.C. 401, 494 S.E.2d 415 (1997).

Where plaintiff failed to show that he was at an increased risk of being stung than a member of the general public, the sting was not an accident or an injury arising out of the employment. Minter v. Osborne Co., 127 N.C. App. 134, 487 S.E.2d 835 (1997), cert. denied, 347 N.C. 401, 494 S.E.2d 415 (1997).

Injury Suffered in the Course of Employment. - In-home caregiver was injured in the course of her employment and her injuries arose out of her employment when the caregiver fell from a tree in her client's yard while picking a pear for her and the client to eat; thus her injury was compensable under G.S. 97-2(6). McGrady v. Olsten Corp., 159 N.C. App. 643, 583 S.E.2d 371 (2003).

Employee sustained an injury to his back as a direct result of a specific traumatic incident arising out of and in the course of employment where the employee's testimony and the accident report established that the employee sustained a lower back injury while lifting a hoist off a drum; a subsequent car accident while en route to a doctor's appointment was not an intervening cause that precluded compensation for aggravation of the employee's work-related injury since the accident was not the fault of the employee. Cannon v. Goodyear Tire & Rubber Co., 171 N.C. App. 254, 614 S.E.2d 440 (2005).

North Carolina Industrial Commission did not err by finding that an injured professional football player sustained a compensable injury by accident arising out of and in the course of his employment, under G.S. 97-2(6), as there was evidence to support the Commission's finding that the injury which the player suffered while playing during a game was unusual. Swift v. Richardson Sports, Inc., - N.C. App. - , - S.E.2d - (Apr. 5, 2005).

Because there was evidence to support the finding by the North Carolina Industrial Commission that a police officer's injuries, which occurred on the officer's lunch break when a drunk driver ran over her after hitting the officer's car, arose out of the assault and thus out of her employment, as it could be inferred that the driver acted as such due to the fact that the employee was a police officer, the decision to award the employee benefits was affirmed. Rose v. City of Rocky Mount, 180 N.C. App. 392, 637 S.E.2d 251 (2006), review denied, 361 N.C. 356, 644 S.E.2d 232 (2007).

Stock handler, who repetitively moved 40-pound boxes, was injured in the course of employment because he suffered two injuries to his back while working, and although the second injury aggravated a preexisting condition from another work injury, it was compensable under G.S. 97-2(6). Ard v. Owens-Illinois, 182 N.C. App. 493, 642 S.E.2d 257 (2007).

Evidence supported the North Carolina Industrial Commission's award of ongoing temporary disability compensation to a claimant, finding that the claimant's back injury arose out of and in the course of her employment under G.S. 97-2(6), as the claimant's physician opined that the injury originally occurred when she was performing a patient transfer in the course of her employment and was merely aggravated by a non-work incident during which she felt a strain in her back while she was lifting a casserole. Cawthorn v. Mission Hosp., Inc., 211 N.C. App. 42, 712 S.E.2d 306 (2011).

B. ARISING OUT OF.

.

"Arising out of " relates to the origin or cause of the accident. Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865 (1963); Robbins v. Nicholson, 10 N.C. App. 421, 179 S.E.2d 183 (1971), rev'd on other grounds, 281 N.C. 234, 188 S.E.2d 350 (1972); Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972); Battle v. Bryant Elec. Co., 15 N.C. App. 246, 189 S.E.2d 788, cert. denied, 281 N.C. 755, 191 S.E.2d 353 (1972); Strickland v. King, 32 N.C. App. 222, 231 S.E.2d 193, rev'd on other grounds, 293 N.C. 731, 239 S.E.2d 243 (1977); Powers v. Lady's Funeral Home, 57 N.C. App. 25, 290 S.E.2d 720, rev'd on other grounds, 306 N.C. 728, 295 S.E.2d 473 (1982).

The phrase "arising out of " has reference to the origin or cause of the accident. But this is not to say that the accident must have been caused by the employment. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968).

The term "arising out of " refers to the origin or causal connection of the accidental injury to the employment. For an accident to "arise out of " an employment, there must be some causal connection between the employment and the injury. Bare v. Wayne Poultry Co., 70 N.C. App. 88, 318 S.E.2d 534 (1984), cert. denied, 312 N.C. 796, 325 S.E.2d 484 (1985).

Rule of Causal Relation Enunciated. - An injury to be compensable must be shown to have resulted from an accident arising out of and in the course of the employment. This principle has come to be known and referred to as the rule of causal relation, i.e., that injury to be compensable must spring from the employment. This rule of causal relation is the very sheet anchor of the Workers' Compensation Act. It has kept the act within the limits of its intended scope - that of providing compensation benefits for industrial injuries, rather than branching out into the field of general health insurance benefits. Duncan v. City of Charlotte, 234 N.C. 86, 66 S.E.2d 22 (1951); Perry v. American Bakeries Co., 262 N.C. 272, 136 S.E.2d 643 (1964).

The requirement that an injury to be compensable must be shown to have resulted from an accident arising out of and in the course of the employment is known and referred to as the "rule of causal relation." Bryan v. First Free Will Baptist Church, 267 N.C. 111, 147 S.E.2d 633 (1966).

The rule of causal relation is the very sheet anchor of the Workers' Compensation Act, and prevents the act from being a general health and insurance benefit act. Bryan v. First Free Will Baptist Church, 267 N.C. 111, 147 S.E.2d 633 (1966).

There Must Be a Causal Connection Between Employment and Injury. - The accident "arises out of " the employment when it occurs in the course of the employment and is the result of a risk involved therein or incident thereto, or to the conditions under which it is required to be performed. There must be some causal connection between the employment and the injury. Bolling v. Belk-White Co., 228 N.C. 749, 46 S.E.2d 838 (1948); Perry v. American Bakeries Co., 262 N.C. 272, 136 S.E.2d 643 (1964); Lee v. F.M. Henderson & Assocs., 284 N.C. 126, 200 S.E.2d 32 (1973).

An injury "arises out of " the employment when it occurs in the course of the employment and is a natural and probable consequence or incident of it, so that there is some causal relation between the accident and the performance of some service of the employment. Rewis v. New York Like Ins. Co, 226 N.C. 325, 38 S.E.2d 97 (1946); Withers v. Black, 230 N.C. 428, 53 S.E.2d 668 (1949); Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865 (1963); Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E.2d 577 (1976).

There must be some causal relation between the employment and the injury. Bass v. Mecklenburg County, 258 N.C. 226, 128 S.E.2d 570 (1962); Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865 (1963); Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968); Stubblefield v. Watson Elec. Constr. Co., 277 N.C. 444, 177 S.E.2d 882 (1970); Robbins v. Nicholson, 10 N.C. App. 421, 179 S.E.2d 183 (1971), rev'd on other grounds, 281 N.C. 234, 188 S.E.2d 350 (1972); Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E.2d 577 (1976); Gallimore v. Marilyn's Shoes, 30 N.C. App. 628, 228 S.E.2d 39 (1976), rev'd on other grounds, 292 N.C. 399, 233 S.E.2d 529 (1977); Hensley v. Caswell Action Comm., Inc., 35 N.C. App. 544, 241 S.E.2d 852 (1978), rev'd on other grounds, 296 N.C. 527, 251 S.E.2d 399 (1979); Pittman v. Twin City Laundry & Cleaners, 61 N.C. App. 468, 300 S.E.2d 899 (1983).

For an accident to arise out of the employment there must be some causal connection between the injury and the employment. When 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. In such a situation the fact that the injury occurred on the employer's premises is immaterial. Cole v. Guilford County, 259 N.C. 724, 131 S.E.2d 308 (1963); Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968).

An 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. Clark v. Burton Lines, 272 N.C. 433, 158 S.E.2d 569 (1968); Lee v. F.M. Henderson & Assocs., 17 N.C. App. 475, 195 S.E.2d 48, aff'd, 284 N.C. 126, 200 S.E.2d 32 (1973); Smith v. Dacotah Cotton Mills, Inc., 31 N.C. App. 687, 230 S.E.2d 772 (1976); Powers v. Lady's Funeral Home, 57 N.C. App. 25, 290 S.E.2d 720, rev'd on other grounds, 306 N.C. 728, 295 S.E.2d 473 (1982); Fortner v. J.K. Holding Co., 83 N.C. App. 101, 349 S.E.2d 296 (1986), aff'd, 319 N.C. 640, 357 S.E.2d 167 (1987).

The injury arises "out of " the employment when there is apparent to the rational mind upon consideration of all the circumstances a causal connection between the conditions under which the work is required to be performed and the resulting injury. Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972); Patterson v. Gaston County, 62 N.C. App. 544, 303 S.E.2d 182, cert. denied, 309 N.C. 822, 310 S.E.2d 351 (1983).

The term "arising out of " requires an employee to demonstrate a causal connection between the injury complained of and an accident which occurred in the course of employment. Buck v. Procter & Gamble Mfg. Co., 52 N.C. App. 88, 278 S.E.2d 268 (1981).

For an injury to be compensable under the North Carolina Workers' Compensation Act, it must be proximately caused by an accident arising out of and in the course of the employment, according to G.S. 97-2(6); 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. Sufficient medical evidence supported a determination by the North Carolina Industrial Commission that an employee suffered a work related injury entitling her to temporary total disability compensation where her doctor testified that her third neck injury, one that occurred in the course of her employment, was the injury that caused a ruptured disc, and where medical records and the employee's testimony supported the medical findings. Towns v. Epes Transp., 163 N.C. App. 566, 594 S.E.2d 113 (2004), cert. denied, 358 N.C. 549, 600 S.E.2d 468 (2004).

Finding that the employee's left ankle injury was causally related to the employee's compensable right wrist injury was supported by sufficient evidence, including the employee's testimony that the employee could have broken the fall that caused the ankle injury if the employee's wrist had not been injured. Everett v. N.C. Indus. Comm'n No. 102217 Well Care & Nursing Servs., 180 N.C. App. 314, 636 S.E.2d 824 (2006).

Claimant had the burden of establishing that the right knee injury was the direct and natural result of the compensable left knee injury and her claim was denied because her testimony was not adequate to establish medical causation and the doctor's testimony was not sufficiently reliable to qualify as competent evidence because it was based merely upon speculation and conjecture. Nale v. Allen, 199 N.C. App. 511, 682 S.E.2d 231 (2009), review denied, 363 N.C. 745, 688 S.E.2d 454, (2009).

But there is no requirement that the injury should be foreseen if it resulted from the employment, nor does the employment have to be the "sole" cause of the injury. Robbins v. Nicholson, 10 N.C. App. 421, 179 S.E.2d 183 (1971), rev'd on other grounds, 281 N.C. 234, 188 S.E.2d 350 (1972); Gallimore v. Marilyn's Shoes, 30 N.C. App. 628, 228 S.E.2d 39 (1976), rev'd on other grounds, 292 N.C. 399, 233 S.E.2d 529 (1977).

While there must be some causal connection between the employment and the injury, nevertheless it is sufficient if the injury is one which, after the event, may be seen to have had its origin in the employment, and it need not be shown that it is one which should have been foreseen or expected. Withers v. Black, 230 N.C. 428, 53 S.E.2d 668 (1949); Vause v. Vause Farm Equip. Co., 233 N.C. 88, 63 S.E.2d 173 (1951); Hinkle v. City of Lexington, 239 N.C. 105, 79 S.E.2d 220 (1953); Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865 (1963); Starr v. Charlotte Paper Co., 8 N.C. App. 604, 175 S.E.2d 342 (1970); Robbins v. Nicholson, 10 N.C. App. 421, 179 S.E.2d 183 (1971), rev'd on other grounds, 281 N.C. 234, 188 S.E.2d 350 (1972); Goldston v. Goldston Concrete Works, Inc., 29 N.C. App. 717, 225 S.E.2d 332, cert. denied, 290 N.C. 660, 228 S.E.2d 452 (1976); Gallimore v. Marilyn's Shoes, 30 N.C. App. 628, 228 S.E.2d 39 (1976), rev'd on other grounds, 292 N.C. 399, 233 S.E.2d 529 (1977).

The words "out of " as used in the act refer to the origin or cause of the accident and import that there must be some causal relation between the employment and the injury, but not that the injury ought to have been foreseen or expected. Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 85 S.E.2d 596 (1955).

And Fact That Injury Could Not Have Been Anticipated Is Immaterial. - If it can be seen that the injury had its origin in the employment, it arises out of such employment, and the fact that it could not have been anticipated is immaterial. Conrad v. Cook-Lewis Foundry Co., 198 N.C. 723, 153 S.E. 266 (1930).

Injury Arises Out of Employment Where Reasonable Relationship Exists. - Where any reasonable relationship to employment exists, or employment is a contributory cause, the court is justified in upholding the award as "arising out of employment." Kiger v. Bahnson Serv. Co., 260 N.C. 760, 133 S.E.2d 702 (1963); Williams v. Brunswick County Bd. of Educ., 1 N.C. App. 89, 160 S.E.2d 102 (1968); Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968); Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972); Bartlett v. Duke Univ., 284 N.C. 230, 200 S.E.2d 193 (1973); Brown v. Jim Brown's Serv. Station, 45 N.C. App. 255, 262 S.E.2d 700 (1980).

Injury Must Spring or Originate from Employment. - "Arising out of " has been defined to mean coming from the work the employee is to do, or out of the services he is to perform, and as a natural result of one of the risks of the employment. The injury must spring from the employment or have its origin therein. Bolling v. Belk-White Co., 228 N.C. 749, 46 S.E.2d 838 (1948); Hinkle v. City of Lexington, 239 N.C. 105, 79 S.E.2d 220 (1953); Lewter v. Abercrombie Enters., Inc., 240 N.C. 399, 82 S.E.2d 410 (1954); Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865 (1963); Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968). See Vause v. Vause Farm Equip. Co., 233 N.C. 88, 63 S.E.2d 173 (1951).

Employment Must Contribute in Some Reasonable Degree Thereto. - In order for an accident to arise out of the employment it is not required that a hazard of the employment be the sole cause of the accident, but it is sufficient if the physical aspects of the employment contribute in some reasonable degree toward bringing about or intensifying the condition which renders the employee susceptible to the accident and consequent injury. Vause v. Vause Farm Equip. Co., 233 N.C. 88, 63 S.E.2d 173 (1951).

Recreational Activities Arranged by Employer. - Appellate court erred in affirming the North Carolina Industrial Commission's decision that found the employee was entitled to temporary total disability workers' compensation benefits based on a cervical strain injury the employee sustained when the go-cart the employee was driving at a "Fun Day" recreational event arranged by the employer struck another go-cart; the employee, who was a volunteer emergency medical services captain for the employer, was not required to attend or participate in the recreational event, and thus was not injured in activity "arising out of" the employment of the employee. Frost v. Salter Path Fire & Rescue, 361 N.C. 181, 639 S.E.2d 429 (2007).

North Carolina Industrial Commission did not err in concluding that the claimant's injury arose out of his employment because the employer specifically required its employees to attend the event, encouraged their participation in the laser tag activity, and derived a business benefit from the conference as a whole; in determining that the claimant sustained a compensable injury by accident; and in awarding the claimant temporary total disability benefits because the doctor's testimony that he did not expect the claimant to be able to return to work for three to six months supported the conclusion that the claimant was incapable of performing any work after his knee replacement. Holliday v. Tropical Nut & Fruit Co., 242 N.C. App. 562, 775 S.E.2d 885 (2015), review denied 780 S.E.2d 563, 2015 N.C. LEXIS 1236 (2015).

Paid Break from Employer's Premises. - In making the determination whether an injury that occurred off the employer's premises during a scheduled break is within the scope of employment, there are several factors to consider: (1) the duration of the break period; (2) whether the employee is paid during the break period; (3) whether the employer provides a place for employees to take breaks, including vending facilities; (4) whether the employer permits off-premises breaks, or has acquiesced in such despite policies against such breaks; and (5) the proximity of the off-premises location where the employee was injured to the employment site. Shaw v. Smith & Jennings, Inc., 130 N.C. App. 442, 503 S.E.2d 113 (1998), cert. denied, 349 N.C. 363, 525 S.E.2d 175 (1998).

The Pickrell presumption that the employee's death arose out of his employment applied in a widow's action to recover death benefits, even though the medical cause of death was known to be positional asphyxia, where the employee was found dead in a one-vehicle accident while on a paid break from his employer's premises. Shaw v. Smith & Jennings, Inc., 130 N.C. App. 442, 503 S.E.2d 113 (1998), cert. denied, 349 N.C. 363, 525 S.E.2d 175 (1998).

Injury While on Unpaid Break. - Injury suffered when the employee slipped while walking from the bathroom to her cubicle after an unpaid lunch break "arose out of" her employment, as the employee was injured in common area of the building, which was not open to the public, where employees were encouraged to go. Mintz v. Verizon Wireless, 223 N.C. App. 433, 735 S.E.2d 217 (2012).

And the Risk of Injury Must Be Incidental to Employment. - "Arising out of " means arising out of the work the employee is to do, or out of the service he is to perform. The risk must be incidental to the employment. Bell v. Dewey Bros., 236 N.C. 280, 72 S.E.2d 680 (1952); Hinkle v. City of Lexington, 239 N.C. 105, 79 S.E.2d 220 (1953); Poteete v. North State Pyrophyllite Co., 240 N.C. 561, 82 S.E.2d 693 (1954); Bryan v. First Free Will Baptist Church, 267 N.C. 111, 147 S.E.2d 633 (1966).

To have its origin in the employment, an injury must come from a risk which might have been contemplated by a reasonable person familiar with the whole situation as incidental to the service when he entered employment. Bartlett v. Duke Univ., 284 N.C. 230, 200 S.E.2d 193 (1973).

Where the cause of the accident is unexplained but the accident is a natural and probable result of a risk of the employment, the finding of the Industrial Commission that the accident arose out of the employment will be sustained. Battle v. Bryant Elec. Co., 15 N.C. App. 246, 189 S.E.2d 788, cert. denied, 281 N.C. 755, 191 S.E.2d 353 (1972).

Employment Must Be a Contributing Proximate Cause to Injury. - Where an injury cannot fairly be traced to the employment as a contributing proximate cause, it does not arise out of the employment. Lewter v. Abercrombie Enters., Inc., 240 N.C. 399, 82 S.E.2d 410 (1954); Poteete v. North State Pyrophyllite Co., 240 N.C. 561, 82 S.E.2d 693 (1954); Hardy v. Small, 246 N.C. 581, 99 S.E.2d 862 (1957); Bass v. Mecklenburg County, 258 N.C. 226, 128 S.E.2d 570 (1962); Bryan v. First Free Will Baptist Church, 267 N.C. 111, 147 S.E.2d 633 (1966); Bartlett v. Duke Univ., 284 N.C. 230, 200 S.E.2d 193 (1973); Eaton v. Klopman Mills, Inc., 2 N.C. App. 363, 163 S.E.2d 17 (1968); Battle v. Bryant Elec. Co., 15 N.C. App. 246, 189 S.E.2d 788, cert. denied, 281 N.C. 755, 191 S.E.2d 353 (1972).

The test of whether an accidental injury "arises out of " the employment is whether a contributing proximate cause of the injury was a risk inherent or incidental to the employment and one to which the employee would not have been equally exposed apart from the employment. Fortner v. J.K. Holding Co., 83 N.C. App. 101, 349 S.E.2d 296 (1986), aff'd, 319 N.C. 640, 357 S.E.2d 167 (1987).

To determine whether an injury or death by accident arose out of the employment, it is necessary to examine the findings of specific crucial facts. The basic question is whether the employment was a contributing cause of the injury. Roberts v. Burlington Indus., Inc., 321 N.C. 350, 364 S.E.2d 417 (1988).

Where a hospital employee was assaulted and injured by a man when she was going from her office to the morgue to retrieve records, and the employer acknowledged that the assault upon the employee occurred "in the course of" her employment but argued that it did not "arise out of" her employment, the evidence supported the finding that the employment was a contributing cause of the injury; thus, the employee was awarded total disability compensation, medical expenses, and psychological expenses under G.S. 97-2(6). D'Aquisto v. Mission St. Joseph's Health Sys., 171 N.C. App. 216, 614 S.E.2d 583 (2005), rev'd on other grounds, review improvidently denied, in part, 360 N.C. 567, 633 S.E.2d 89 (2006).

But Need Not Be the Sole Causative Force. - Where a claimant's right to recovery is based on an injury by accident, the employment need not be the sole causative force to render the injury compensable. Walston v. Burlington Indus., 49 N.C. App. 301, 271 S.E.2d 516 (1980), rev'd on other grounds, 304 N.C. 670, 285 S.E.2d 822 (1982).

As the Moving Force Can Be Something Other than Employment. - When one speaks of an event "arising out of employment," the initiative, the moving force, is something other than the employment; the employment is thought of more as a condition out of which the event arises than as the force producing the event in affirmative fashion. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968).

Hazards or Risks Incidental to Employment as Contributing Cause to Accident and Resulting Injuries. - The North Carolina Industrial Commission neither (1) erred in relying on Allred v. Allred-Gardner, Inc., 253 N.C. 554 (1960), in finding that an employee's injuries arose out of and in the course of his employment, nor (2) misapplied the increased risk analysis, when it determined that the risk of driving a truck aggravated, accelerated, or combined with plaintiff employee's pre-existing condition (syncopal episode or blackout) to produce his injuries, and thus, that the injuries arose out of and in the course of his employment, because they resulted from his work-related accident. Facts were consistent with an interpretation of Allred that no showing was needed that plaintiff's injury was made more severe or caused solely by driving a truck, and since the employee was returning to work after making a delivery for his employer when the accident occurred, an increased risk analysis was not relevant. Billings v. Gen. Parts, Inc., 187 N.C. App. 580, 654 S.E.2d 254 (2007), review denied, 362 N.C. 233, 659 S.E.2d 435 (2008).

No Competent Evidence of Causation. - North Carolina Industrial Commission properly found that no competent evidence supported a conclusion that a workers' compensation claimant's back injury occurred as a result of a traumatic incident where the claimant's credibility as it related to his testimony about the events that caused his back injury and the competency of his medical causation evidence were at issue; the claimant's medical evidence of causation was little more than speculation. Rogers v. Smoky Mt. Petroleum Co., 172 N.C. App. 521, 617 S.E.2d 292 (2005).

The North Carolina Industrial Commission did not err by finding that an employee's fall was not the result of an accident arising out of his employment because the facts fully supported the Commission's conclusion that the employee's fall was due to an idiopathic condition or physical infirmity, which caused his leg to give way; the employee's fall was spontaneous and due to an unknown physical infirmity, and although the employee argued that the Commission erred in its finding that his fall resulted from his leg giving way due to an unknown physical infirmity, there was no evidence in the record that offered any explanation of a cause for the fall other than the fact that his leg "gave way" and he fell. Watkins v. Trogdon Masonry, Inc., 203 N.C. App. 289, 692 S.E.2d 112 (2010), review denied, 364 N.C. 334, 701 S.E.2d 681, 2010 N.C. LEXIS 593 (2010).

Employment Must Put Employee in Place of Accident. - For an accident to "arise out of " the employment, it is necessary that the conditions or obligations of the employment put the employee in the position or at the place where the accident occurs. Pittman v. Twin City Laundry & Cleaners, 61 N.C. App. 468, 300 S.E.2d 899 (1983).

And Subject Him to Additional Risks Incident Thereto. - Where the conditions and obligations of the employment required the claimant to be at a place where the accident occurred, subjecting him to additional risks incident thereto, the injury arose out of the employment. Powers v. Lady's Funeral Home, 306 N.C. 728, 295 S.E.2d 473 (1982).

Hazard Must Not Be Common to Public. - An accident arises out of employment when it is the result of a risk or hazard incident to the employment and is not from a hazard common to the public. Martin v. Bonclarken Ass'y, 35 N.C. App. 489, 241 S.E.2d 848, rev'd on other grounds, 293 N.C. 540, 251 S.E.2d 403 (1979).

Where an injury cannot fairly be traced to the employment as a contributing proximate cause, or comes from a hazard to which the worker would have been equally exposed apart from the employment or from a hazard common to others, it does not arise out of the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. Bryan v. Loving Co., 222 N.C. 724, 24 S.E.2d 751 (1943); Pope v. Goodson, 249 N.C. 690, 107 S.E.2d 524 (1959); Smith v. Dacotah Cotton Mills, Inc., 31 N.C. App. 687, 230 S.E.2d 772 (1976).

Occurrence on Employer's Premises Is Not Dispositive. - Even though an accident occurred on the employer's premises at a time when the employee was within the compass of his employment, this alone is insufficient to justify a finding that the injury arose out of the employment. Strickland v. King, 293 N.C. 731, 239 S.E.2d 243 (1977).

Employee Must Be Engaged in Authorized Activity in Furtherance of Employer's Business. - An accident arises out of employment when it occurs while the employee is engaged in some activity or duty which he is authorized to undertake, and which is calculated to further, indirectly or directly, the employer's business. Smith v. Central Transp., 51 N.C. App. 316, 276 S.E.2d 751 (1981).

And Must Be Acting for Employer's Benefit at Time of Accident. - Compensability of a claim basically turns upon whether or not the employee was acting for the benefit of his employer to any appreciable extent when the accident occurred. Such a determination depends largely upon the unique facts of each particular case; in close cases, the benefit of the doubt concerning this issue should be given to the employee in accordance with the established policy of liberal construction and application of the Workers' Compensation Act. Hoffman v. Ryder Truck Lines, 306 N.C. 502, 293 S.E.2d 807 (1982).

Preexisting Injury Barred Recovery. - North Carolina Industrial Commission properly found that a claimant's preexisting back injury barred his recovery where: (1) through the year, the claimant received pain treatment and physical therapy for a preexisting back injury; (2) the claimant's testimony of a subsequent back injury was not supported by other competent evidence; and (3) the expert medical testimony failed to establish that the claimant's current back problem was either caused or aggravated by an accident or specific traumatic work-related event. Rogers v. Smoky Mt. Petroleum Co., 172 N.C. App. 521, 617 S.E.2d 292 (2005).

Whether an accident "arises out of the employment" is a mixed question of law and fact. Ridout v. Rose's 5-10-25 › Stores, 205 N.C. 423, 171 S.E. 642 (1933); Matthews v. Carolina Std. Corp., 232 N.C. 229, 60 S.E.2d 93 (1950); Poteete v. North State Pyrophyllite Co., 240 N.C. 561, 82 S.E.2d 693 (1954); Alford v. Quality Chevrolet Co., 246 N.C. 214, 97 S.E.2d 869 (1957); Sandy v. Stackhouse, Inc., 258 N.C. 194, 128 S.E.2d 218 (1962); Bass v. Mecklenburg County, 258 N.C. 226, 128 S.E.2d 570 (1962); Clark v. Gastonia Ice Cream Co., 261 N.C. 234, 134 S.E.2d 354 (1964); Perry v. American Bakeries Co., 262 N.C. 272, 136 S.E.2d 643 (1964); Smith v. Dacotah Cotton Mills, Inc., 31 N.C. App. 687, 230 S.E.2d 772 (1976).

Which Must Be Determined on a Case-by-Case Basis. - The term "arising out of employment" must be interpreted in the light of the facts and circumstances of each case. Plemmons v. White's Serv., 213 N.C. 148, 195 S.E. 370 (1938); Taylor v. Town of Wake Forest, 228 N.C. 346, 45 S.E.2d 387 (1947); Berry v. Colonial Furn. Co., 232 N.C. 303, 60 S.E.2d 97 (1950); Perry v. American Bakeries Co., 262 N.C. 272, 136 S.E.2d 643 (1964); Clark v. Burton Lines, 272 N.C. 433, 158 S.E.2d 569 (1968).

Whether the injury "arose out of " the employment is to be decided on the facts of the individual case and cannot be precisely defined. Robbins v. Nicholson, 10 N.C. App. 421, 179 S.E.2d 183 (1971), rev'd on other grounds, 281 N.C. 234, 188 S.E.2d 350 (1972); Gallimore v. Marilyn's Shoes, 30 N.C. App. 628, 228 S.E.2d 39 (1976), rev'd on other grounds, 292 N.C. 399, 233 S.E.2d 529 (1977).

Claimant Failed to Meet His Burden of Proof. - North Carolina Industrial Commission properly held that a claimant failed to show that he sustained a work-related back injury where: (1) he claimed having reported the injury to his supervisor, but his co-workers testified that he did not mention an injury to them, nor did they notice any change in the claimant's physical activities during the day; (2) he did not report the injury to his treating physician when he went for a previously-scheduled epidural injection; (3) he did not inform a second doctor that he had been undergoing treatment for back pain; and (4) he erroneously informed the second doctor that he had been out of work. Rogers v. Smoky Mt. Petroleum Co., 172 N.C. App. 521, 617 S.E.2d 292 (2005).

Effect of Commission's Findings. - Whether an accident arises out of the employment is a mixed question of fact and law, and the finding of the Commission is conclusive if supported by any competent evidence; otherwise, not. Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E.2d 577 (1976).

Whether an accident grew out of the employment is a mixed question of law and fact which the court has the right to review on appeal. If the detailed findings of fact force a conclusion opposite that reached by the Commission, it is the duty of the court to reverse the Commission. Warren v. City of Wilmington, 43 N.C. App. 748, 259 S.E.2d 786 (1979).

Claimant Lacked Credibility. - North Carolina Industrial Commission properly considered all of the competent evidence and properly found that a workers' compensation claimant lacked credibility. Rogers v. Smoky Mt. Petroleum Co., 172 N.C. App. 521, 617 S.E.2d 292 (2005).

Sufficient Evidence to Support Finding That Medical Treatment Directly Related to Compensable Injury. - There was sufficient evidence to support the Industrial Commission's findings of fact and conclusions of law that the medical treatment of an employee's right shoulder was causally related to her compensable right shoulder injury because doctors' testimony supported the presumption that additional medical treatment was directly related to the compensable right shoulder injury; the employer failed to present evidence to disprove the causal connection. Bell v. Goodyear Tire & Rubber Co., 252 N.C. App. 268, 798 S.E.2d 143 (2017), review denied, 2017 N.C. LEXIS 576 (N.C. 2017).

C. IN THE COURSE OF.

.

Time, Place and Circumstances. - The words "in the course of " as used in the act refer to the time, place, and circumstances under which the injury occurs. Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 85 S.E.2d 596 (1955); Alford v. Quality Chevrolet Co., 246 N.C. 214, 97 S.E.2d 869 (1957); Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865 (1963); Martin v. Bonclarken Ass'y, 296 N.C. 540, 251 S.E.2d 403 (1979); Hoyle v. Isenhour Brick & Tile Co., 306 N.C. 248, 293 S.E.2d 196 (1982); Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968); Robbins v. Nicholson, 10 N.C. App. 421, 179 S.E.2d 183 (1971), rev'd on other grounds, 281 N.C. 234, 188 S.E.2d 350 (1972); Gallimore v. Marilyn's Shoes, 30 N.C. App. 628, 228 S.E.2d 39 (1976), rev'd on other grounds, 292 N.C. 399, 233 S.E.2d 529 (1977); Strickland v. King, 32 N.C. App. 222, 231 S.E.2d 193, rev'd on other grounds, 293 N.C. 731, 239 S.E.2d 243 (1977); Brown v. Jim Brown's Serv. Station, 45 N.C. App. 255, 262 S.E.2d 700 (1980); Powers v. Lady's Funeral Home, 57 N.C. App. 25, 290 S.E.2d 720, rev'd on other grounds, 306 N.C. 728, 295 S.E.2d 473 (1982); Patterson v. Gaston County, 62 N.C. App. 544, 303 S.E.2d 182, cert. denied, 309 N.C. 822, 310 S.E.2d 351 (1983); Bare v. Wayne Poultry Co., 70 N.C. App. 88, 318 S.E.2d 534 (1984), cert. denied, 312 N.C. 796, 325 S.E.2d 484 (1985).

It is the conjunction of all three factors, time, place and circumstances, that brings a particular accident within the concept of course of employment. If, in addition to this, the accident arose out of employment, then any injury resulting therefrom is compensable under the act. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968).

Time, Place and Circumstances. - Where an employee was struck and fatally injured by a car while walking to work across a shopping mall parking lot, his injuries were not compensable, as the North Carolina Industrial Commission properly found that the employee was not exposed to any traffic danger greater than the public in general. Deseth v. LensCrafters, Inc., 160 N.C. App. 180, 585 S.E.2d 264 (2003).

What Time Is Covered. - With respect to time, the 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 workday for rest and refreshment. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968).

With respect to time, the course of employment begins a reasonable time before work begins and continues for a reasonable time after work ends. Pittman v. Twin City Laundry & Cleaners, 61 N.C. App. 468, 300 S.E.2d 899 (1983).

What Place Is Covered. - With respect to place, the course of employment includes the premises of the employer. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968); Gallimore v. Marilyn's Shoes, 30 N.C. App. 628, 228 S.E.2d 39 (1976), rev'd on other grounds, 292 N.C. 399, 233 S.E.2d 529 (1977).

"Time and place" do not necessarily mean the regular hours of employment and on the premises of the employer. If the employee is doing work at the direction and for the benefit of the employer, the time and place of work are for the benefit of the employer and a part of the employment of the employee. This satisfies the condition of time and place although the work is done off the premises of the employer and after regular working hours. Brown v. Jim Brown's Serv. Station, 45 N.C. App. 255, 262 S.E.2d 700 (1980).

Going to and from Work. - An employee may be in the course of his employment when he is on the way to the place of his duties, leaving the place of his duties at the end of the day, or leaving upon learning that there was no work for him to do. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968).

The time of employment includes the working hours as well as such reasonable time as is required to pass to and from the employer's premises. Gallimore v. Marilyn's Shoes, 30 N.C. App. 628, 228 S.E.2d 39 (1976), rev'd on other grounds, 292 N.C. 399, 233 S.E.2d 529 (1977).

What Activity Is Covered. - Where the employee is engaged in activity which he is authorized to undertake and which is calculated to further, directly or indirectly, the employer's business, the circumstances are such as to be within the course of employment. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968); Pittman v. Twin City Laundry & Cleaners, 61 N.C. App. 468, 300 S.E.2d 899 (1983).

The fact that the employee is not engaged in the actual performance of the duties of his job does not preclude an accident from being one within the course of employment. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968).

With respect to circumstances, injuries within the course of employment include those sustained while the employee is doing what a man so employed may reasonably do within a time which he is employed and at a place where he may reasonably be during that time to do that thing. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968); Brown v. Jim Brown's Serv. Station, 45 N.C. App. 255, 262 S.E.2d 700 (1980).

An accident arising "in the course of " the employment is one which occurs while the employee is doing what a man so employed may reasonably do within a time during which he is employed and at a place where he may reasonably be during that time to do that thing; or one which occurs in the course of the employment and as the result of a risk involved in the employment, or incident to it, or to conditions under which it is required to be performed. Clark v. Burton Lines, 272 N.C. 433, 158 S.E.2d 569 (1968); Goldston v. Goldston Concrete Works, Inc., 29 N.C. App. 717, 225 S.E.2d 332, cert. denied, 290 N.C. 660, 228 S.E.2d 452 (1976); Hoyle v. Isenhour Brick & Tile Co., 306 N.C. 248, 293 S.E.2d 196 (1982).

The words "in the course of " the employment refer to the time, place, and circumstances of the accident, and an accident arises in the course of the employment if it occurs while the employee is engaged in a duty which he is authorized or directed to undertake or in an activity incidental thereto. Battle v. Bryant Elec. Co., 15 N.C. App. 246, 189 S.E.2d 788, cert. denied, 281 N.C. 755, 191 S.E.2d 353 (1972).

An injury occurs "in the course of " the employment when the injury occurs during the period of employment at a place where an employee's duties are calculated to take him, and under circumstances in which the employee is engaged in an activity which he is authorized to undertake and which is calculated to further, directly or indirectly, the employer's business. Fortner v. J.K. Holding Co., 83 N.C. App. 101, 349 S.E.2d 296 (1986), aff'd, 319 N.C. 640, 357 S.E.2d 167 (1987).

Industrial Commission's denial of benefits was vacated because the Commission's inconsistent findings that the employee's actions when the employee was injured removed the employee from the scope of employment but the employee might have initially performed work-related tasks precluded determining whether the Commission's findings supported the Commission's legal conclusion that the employee's operation of a forklift removed the employee from the scope of employment. Weaver v. Dedmon, 253 N.C. App. 622, 801 S.E.2d 131 (2017).

Injury During Hours and at Place of Employment While Engaged in Duties. - A conclusion that an injury arose in the course of the employment is required where there is evidence that it occurred during the hours of the employment and at the place of the employment while the claimant was actually engaged in the performance of the duties of the employment. Withers v. Black, 230 N.C. 428, 53 S.E.2d 668 (1949); Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968); Pittman v. Twin City Laundry & Cleaners, 61 N.C. App. 468, 300 S.E.2d 899 (1983).

Injury While Performing Task Which Was Not Part of Job. - Where it was not a part of the plaintiff 's job to clean tote tank, the tote tank was not supposed to be cleaned and the cleaning of it did not further the business of the employer, the Industrial Commission was correct in concluding that plaintiff was "not about his work" when he was overcome by fumes while cleaning the tote tank. Parker v. Burlington Indus., Inc., 78 N.C. App. 517, 337 S.E.2d 589 (1985).

Performance of Special Errand. - Where automobile accident occurred as plaintiff was in route from worksite to a hospital in order to transport a fellow employee, even though travel was not an incident of plaintiff's employment as a roofer and construction worker, the journey was brought into the course of employment because plaintiff was performing a "special errand" that directly benefited the employer. Aaron v. New Fortis Homes, Inc., 127 N.C. App. 711, 493 S.E.2d 305 (1997).

The decedent's fatal accident occurred in the course of his employment with his employer, where the decedent was killed in a one-vehicle accident while on a paid break, there was no food or drink on the employer's premises, and the employer acquiesced in allowing employees to go off the job site to obtain refreshments. Shaw v. Smith & Jennings, Inc., 130 N.C. App. 442, 503 S.E.2d 113 (1998), cert. denied, 349 N.C. 363, 525 S.E.2d 175 (1998).

An employee's kidnapping and murder by a former co-employee arose out of and in the course of her employment with employer, where the employee had prepared an informational sheet on unemployment benefits and she had been directed by her employer to talk to the former employee regarding his unemployment benefits. Hauser v. Advanced Plastiform, Inc., 133 N.C. App. 378, 514 S.E.2d 545 (1999).

Employee who was injured when thrown from a pick-up truck while riding from residence to a site where supervisor wanted employee to pick up a dump truck was on a special errand for employer and was covered under North Carolina's Workers' Compensation Act. Osmond v. Carolina Concrete Specialties, 151 N.C. App. 541, 568 S.E.2d 204 (2002), review denied, 356 N.C. 676, 577 S.E.2d 631 (2003).

If employee does something which he is not specifically ordered not to do by a then present superior and the thing he does furthers the business of the employer although it is not a part of the employee's job, an injury sustained by accident while he is so performing is in the course of employment. This has been characterized as "being about his work." Parker v. Burlington Indus., Inc., 78 N.C. App. 517, 337 S.E.2d 589 (1985).

Preliminary preparations by an employee, reasonably essential to the proper performance of some required task or service, are generally regarded as being within the scope of employment, and any injury suffered while in the act of preparing to do a job is compensable. Thompson v. Refrigerated Transp. Co., 32 N.C. App. 693, 236 S.E.2d 312 (1977).

In tending to his personal physical needs, an employee is indirectly benefiting his employer. Therefore, the course of employment continues when the employee goes to the washroom, takes a smoke break, takes a break to partake of refreshment, goes on a personal errand involving temporary absence from his post of duty, or voluntarily leaves his post to assist another employee. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968).

Activities which an employee undertakes in pursuit of his personal comfort constitute part of the circumstances of the course of employment. Dayal v. Provident Life & Accident Ins. Co., 71 N.C. App. 131, 321 S.E.2d 452 (1984).

Mealtime is within the course of employment, even where such time is completely free for the employees. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968).

Injury While on Required Unpaid Break. - Injury suffered when the employee slipped while walking from the bathroom to her cubicle after an unpaid lunch break occurred "in the course of" her employment, as the employer required employees to take lunch break; "in the course of" included time for rest and eating; and while the employer did not own the premises, it was the main tenant in the building and maintained and controlled all activities occurring in the building. Mintz v. Verizon Wireless, 223 N.C. App. 433, 735 S.E.2d 217 (2012).

When an employee is required to live on the premises, either by his contract of employment or by the nature of the employment, and is continuously on call, whether or not actually on duty, the entire period of his presence on the premises pursuant to this requirement is deemed included in the course of employment. Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E.2d 577 (1976).

Living in Company Housing. - Where migrant farm worker who lived in company housing was injured while taking a shower after work, although the nature of his employment arguably required that he live on the premises, at the time of his injury he was not on call, and the connection between his employment and his injury was not sufficient to establish that the injury arose out of and in the course of his employment. Jauregui v. Carolina Vegetables, 112 N.C. App. 593, 436 S.E.2d 268 (1993).

Accident While Off-Duty. - Ordinarily, when an employee is off duty the relationship of master and servant is suspended; therefore, there is no causal relation between the employment and an accident which happens during such time. Sandy v. Stackhouse, Inc., 258 N.C. 194, 128 S.E.2d 218 (1962).

Evidence Was Sufficient to Show Plaintiff 's Injurious Exposure Occurred During Course of Employment. - Where the record disclosed that plaintiff did not continue earning wages after 1969, her unsuccessful attempts to work during the years 1969 to 1980, when considered in conjunction with the medical evidence, merely demonstrated her total incapacity to earn wages; thus the commission's determination that plaintiff 's last injurious exposure to the hazards of her occupational disease occurred while she was employed in 1968, and its order that employer and its carrier in 1968 pay her an award under the provisions of G.S. 97-29 in effect on October 1, 1968, would be affirmed. Gregory v. Sadie Cotton Mills, Inc., 90 N.C. App. 433, 368 S.E.2d 650, cert. denied, 322 N.C. 835, 371 S.E.2d 277 (1988).

Where an employee, who was a traveling nursing assistant, had traveled to a patient's home, left on a personal errand, and was injured in an automobile accident on her return to the patient's home, the full North Carolina Industrial Commission's award of temporary total disability benefits was upheld on appeal, because the personal errand had been completed and the employee had resumed her business travel route when the accident occurred; thus, the accident was properly determined to have occurred in the course of employment, making the injury compensable. Chavis v. TLC Home Health Care, 172 N.C. App. 366, 616 S.E.2d 403 (2005).

Mall Parking Lot Is Not Employer's Premises. - Where an employee was struck and killed by a car while walking to work across a shopping mall parking lot, he did not sustain an injury by accident while in the course and scope of his employment under G.S. 97-2(6); since the right of the employer under its lease to use the parking lot and its obligation to share in the lot's maintenance costs was not sufficient control over the lot to allow a finding that it was within the employer's premises, the limited exception to the coming and going rule was inapplicable. Deseth v. LensCrafters, Inc., 160 N.C. App. 180, 585 S.E.2d 264 (2003).

Performance of Special Errand. - Where an employee was struck and fatally injured by a car while walking to work across a shopping mall parking lot, the fact that he was carrying work-related materials and was responsible for opening his employer's store did not mean he was running a "special errand" for his employer that made his injuries compensable. Deseth v. LensCrafters, Inc., 160 N.C. App. 180, 585 S.E.2d 264 (2003).

D. RISKS INCIDENT TO THE EMPLOYMENT.

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The injury must come from a risk which might have been contemplated by a reasonable person as incidental to the service when he entered the employment. Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972).

When Risk Is Incidental to Employment. - A risk may be said to be incidental to the employment when it is either an ordinary risk directly connected with the employment, or an extraordinary risk which is only indirectly connected with the service owing to the special nature of the employment. Goodwin v. Bright, 202 N.C. 481, 163 S.E. 576 (1932); Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972); Smith v. Dacotah Cotton Mills, Inc., 31 N.C. App. 687, 230 S.E.2d 772 (1976).

The causative danger need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence. Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972); Bartlett v. Duke Univ., 284 N.C. 230, 200 S.E.2d 193 (1973); Patterson v. Gaston County, 62 N.C. App. 544, 303 S.E.2d 182, cert. denied, 309 N.C. 822, 310 S.E.2d 351 (1983).

But must have been peculiar to the work and not common to the neighborhood, as well as incidental to the character of the business and not independent of the relation of master and servant. Sandy v. Stackhouse, Inc., 258 N.C. 194, 128 S.E.2d 218 (1962); Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972); Bartlett v. Duke Univ., 284 N.C. 230, 200 S.E.2d 193 (1973).

Injury by accident is not compensable if it results from a hazard to which the public generally is subject. Battle v. Bryant Elec. Co., 15 N.C. App. 246, 189 S.E.2d 788, cert. denied, 281 N.C. 755, 191 S.E.2d 353 (1972).

When the cause of injury is known and is independent of, unrelated to, and apart from the employment, and results from a hazard to which others are equally exposed, compensation will not be allowed. Cole v. Guilford County, 259 N.C. 724, 131 S.E.2d 308 (1963); Battle v. Bryant Elec. Co., 15 N.C. App. 246, 189 S.E.2d 788, cert. denied, 281 N.C. 755, 191 S.E.2d 353 (1972).

Injury Due to Peculiar Hazard of Employee's Location. - A causal relation exists between the accident and the employment when the duties of the employment require the employee to be in a place at which he is exposed to a risk of injury to which he would not otherwise be subject, and while there he is injured by an accident due to the peculiar hazard of that location. Stubblefield v. Watson Elec. Constr. Co., 277 N.C. 444, 177 S.E.2d 882 (1970); Hensley v. Caswell Action Comm., Inc., 35 N.C. App. 544, 241 S.E.2d 852 (1978), rev'd on other grounds, 296 N.C. 527, 251 S.E.2d 399 (1979).

Accident Caused Partly or Solely by Idiopathic Condition. - Where the accident and resultant injury arise out of both the idiopathic condition of the workman and hazards incident to the employment, the employer is liable. But not so where the idiopathic condition is the sole cause of the injury. Cole v. Guilford County, 259 N.C. 724, 131 S.E.2d 308 (1963).

Where the employment subjects a worker to a special or particular hazard from the elements, such as excessive heat or cold likely to produce sunstroke or freezing, death or disability resulting from such cause usually comes within the purview of the compensation acts; the test is whether the employment subjects the worker to a greater hazard or risk than that to which he or she otherwise would be exposed. Dillingham v. Yeargin Constr. Co., 320 N.C. 499, 358 S.E.2d 380, cert. denied, 320 N.C. 639, 360 S.E.2d 84 (1987).

Risk of Injury from Lightning. - The generally recognized rule is that where the injured employee is by reason of his employment peculiarly or specially exposed to a risk of injury from lightning, that is, one greater than other persons in the community, death or injury resulting from this source usually is compensable as an injury by accident arising out of and in the course of the employment. Pope v. Goodson, 249 N.C. 690, 107 S.E.2d 524 (1959).

North Carolina Industrial Commission properly found that circumstances incidental to a claimant's employment peculiarly exposed him to a greater risk of injury from lightning under G.S. 97-2(6). The claimant did not need to present expert testimony to show an increased risk; rather, evidence that he was working at a home construction site located near the top of a mountain near metal towers, that the unfinished house had a metal roof, and that the claimant was standing in the unfinished garage, which did not have doors on it, several feet away from electrically charged objects, was sufficient to allow a finding of increased risk. Heatherly v. Hollingsworth Co., 211 N.C. App. 282, 712 S.E.2d 345 (2011).

Increased Risk of Assault While Going from One Part to Another Part of Workplace. - Substantial evidence supported the conclusion under G.S. 97-2(6) that hospital employee who went from one part of the hospital to another part while on business was subjected to an increased risk of assault because there were fewer people present along her route. D'Aquisto v. Mission St. Joseph's Health Sys., 171 N.C. App. 216, 614 S.E.2d 583 (2005), rev'd on other grounds, review improvidently denied, in part, 360 N.C. 567, 633 S.E.2d 89 (2006).

VII. INJURIES WHILE ACTING FOR BENEFIT OF SELF OR THIRD PERSON.

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Acts which are necessary to the health and comfort of an employee while at work, though personal to himself and not technically acts of service, such as visits to the washroom, are incidental to the employment. Rewis v. New York Life Ins. Co., 226 N.C. 325, 38 S.E.2d 97 (1946).

Activities which are undertaken for the personal comfort of the employee are considered part of the "circumstances" element of the course of employment. Spratt v. Duke Power Co., 65 N.C. App. 457, 310 S.E.2d 38 (1983).

Employees who, within the time and space limits of their employment, engage in acts which minister to personal comfort do not thereby leave the course of employment, unless the extent of the departure is so great that an intent to abandon the job temporarily may be inferred, or unless the method chosen is so unusual and unreasonable that the conduct cannot be considered an incident of the employment. Spratt v. Duke Power Co., 65 N.C. App. 457, 310 S.E.2d 38 (1983).

Personal Comfort Not Applicable. - Nurse's dropping off time reports required to be turned into office that day on her way to patient's home was not a distinct and total departure on a personal errand. Munoz v. Caldwell Mem'l Hosp., 171 N.C. App. 386, 614 S.E.2d 448 (2005).

Acts of employee for the benefit of third persons generally preclude recovery of compensation for accidental injuries sustained during the performance of such acts, usually on the ground that they are not incidental to any service which the employee is obligated to render under his contract of employment, and the injuries therefore cannot be said to arise out of and in the course of the employment. Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E.2d 577 (1976).

An injury to an employee while he is performing acts for the benefit of third persons is not compensable if the acts are performed solely for the benefit or purpose of the employee or third person. Burton v. American Nat'l Ins. Co., 10 N.C. App. 499, 179 S.E.2d 7 (1971). See also Lewis v. W.B. Lea Tobacco Co., 260 N.C. 410, 132 S.E.2d 877 (1963).

Even If Employee Was Acting with Consent of Employer. - Where an employee at the time of his injury is performing acts for his own benefit, and not connected with his employment, the injury does not arise out of his employment. This is true even if the acts are performed with the consent of the employer and the employee is on the payroll at the time. Lewis v. W.B. Lea Tobacco Co, 260 N.C. 410, 132 S.E.2d 877 (1963); Burton v. American Nat'l Ins. Co., 10 N.C. App. 499, 179 S.E.2d 7 (1971).

And Even If He Was Injured While on a Mission for Employer. - If employee's acts are not connected with his employment but are for the benefit of himself and third persons at the time of his injury, he is not entitled to compensation, even if he is injured while he is required by his employer to be away from his home and place of regular employment for a period of time on a mission for his employer. Lewis v. W.B. Lea Tobacco Co., 260 N.C. 410, 132 S.E.2d 877 (1963); Burton v. American Nat'l Ins. Co, 10 N.C. App. 499, 179 S.E.2d 7 (1971).

Unless Employee's Acts Were of Benefit to Employer. - Whether an injury to an employee received while performing acts for the benefit of third persons arises out of the employment depends upon whether the acts of the employee are for the benefit of the employer to any appreciable extent, or whether the acts are solely for the benefit or purpose of the employee or a third person. Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 85 S.E.2d 596 (1955).

An injury to an employee while he is performing acts for the benefit of third persons is not compensable unless the acts benefit the employer to an appreciable extent. Lewis v. W.B. Lea Tobacco Co., 260 N.C. 410, 132 S.E.2d 877 (1963); Hales v. North Hills Constr. Co., 5 N.C. App. 564, 169 S.E.2d 24 (1969); Burton v. American Nat'l Ins. Co., 10 N.C. App. 499, 179 S.E.2d 7 (1971); Roberts v. Burlington Indus., Inc., 321 N.C. 350, 364 S.E.2d 417 (1988).

Where competent proof exists that the employee understood, or had reasonable grounds to believe, that the act for the benefit of a third person resulting in injury was incidental to his employment, or was such as would prove beneficial to his employer's interests, or was encouraged by the employer in the performance of the act or similar acts for the purpose of creating a feeling of good will, or authorized so to do by common practice or custom, compensation may be recovered, since then a causal connection between the employment and the accident may be established. Watkins v. City of Wilmington, 290 N.C. 276, 225 S.E.2d 577 (1976).

Plaintiff, who was injured when she fell off a chair in her home while hanging plants on her porch, which plants she had been instructed by her employer to dispose of incident to the closing of employer's place of business, was not entitled to compensation. Fortner v. J.K. Holding Co., 83 N.C. App. 101, 349 S.E.2d 296 (1986), aff'd, 319 N.C. 640, 357 S.E.2d 167 (1987); Fortner v. J.K. Holding Co., 319 N.C. 640, 357 S.E.2d 167 (1987).

Employee Killed While Assisting Injured Pedestrian. - Death of employee who, while returning home from a business trip, was struck by a car and killed as he assisted an injured pedestrian who had no connection to the employee's duties or his employer's business did not arise out of the employment and thus was not compensable under the Workers' Compensation Act. Roberts v. Burlington Indus., Inc., 321 N.C. 350, 364 S.E.2d 417 (1988).

Special Errand and Dual Purpose Rule. - Plaintiff employee, who was injured while on her way to a company gathering with her supervisor, the company president, when she was asked to run several errands for her supervisor, i.e. to go by the post office, to go by the mall to pick up pictures of her supervisor's vacation, and to turn the car around and go look at a "trailer for rent," the reasons for which gathering were to alleviate office tensions, celebrate several birthdays and cement relationships, was entitled to compensation under the special errand rule and the dual purpose rule. McBride v. Peony Corp., 84 N.C. App. 221, 352 S.E.2d 236 (1987).

As to statement and application of "dual purpose rule," see Felton v. Hospital Guild, 57 N.C. App. 33, 291 S.E.2d 158, aff'd by divided S. Ct. as law of case but without precedential value, 307 N.C. 121, 296 S.E.2d 297 (1982).

Fall While in Rest Room. - Evidence tending to show that the employee was suffering from a disease which weakened him and subjected him to frequent fainting spells, that during the course of his employment he went to the men's washroom, and while there felt faint, and in seeking fresh air, went to the open window, slipped on the tile floor, and fell through the window to his death, held sufficient to support the finding of the Industrial Commission that his death was the result of an accident arising out of and in the course of his employment. Rewis v. New York Life Ins. Co., 226 N.C. 325, 38 S.E.2d 97 (1946).

Vacation Pleasure Trip Furnished by Employer. - An accidental injury received by an employee while riding in a truck on a vacation pleasure trip does not arise out of the employment, notwithstanding the fact that the employer furnished the vacation trip as a matter of goodwill and personal relations among the employees and paid the entire expenses of the trip in accordance with its agreement entered into at the time of the employment as a part of the remuneration and inducement to its employees. Berry v. Colonial Furn. Co., 232 N.C. 303, 60 S.E.2d 97 (1950).

The fact that a pleasure trip for the benefit of the employee is without expense to the employee does not entitle him to compensation for injury received while on such trip, even if all or a portion of the expense is borne by the employer as a gesture of goodwill. Lewis v. W.B. Lea Tobacco Co., 260 N.C. 410, 132 S.E.2d 877 (1963); Burton v. American Nat'l Ins. Co., 10 N.C. App. 499, 179 S.E.2d 7 (1971).

Recreational and Social Activities. - Where, as a matter of goodwill, an employer at his own expense provides an occasion for recreation or an outing for his employees and invites them to participate, but does not require them to do so, and an employee is injured while engaged in the activities incident thereto, such injury does not arise out of the employment. Perry v. American Bakeries Co., 262 N.C. 272, 136 S.E.2d 643 (1964); Burton v. American Nat'l Ins. Co., 10 N.C. App. 499, 179 S.E.2d 7 (1971).

In determining whether employee injuries incurred at employer-sponsored recreational and social activities arise out of and in the course of the employment, several questions should be considered: (1) Did the employer in fact sponsor the event? (2) To what extent was attendance really voluntary? (3) Was there some degree of encouragement to attend evidenced by such factors as: (a) taking a record of attendance; (b) paying for the time spent; (c) requiring the employee to work if he did not attend; or (d) maintaining a known custom of attending? (4) Did the employer finance the occasion to a substantial extent? (5) Did the employees regard the activity as an employment benefit to which they were entitled as of right? (6) Did the employer benefit from the event, not merely in a vague way through better morale and good will, but through such tangible advantages as having an opportunity to make speeches and awards? Martin v. Mars Mfg. Co., 58 N.C. App. 577, 293 S.E.2d 816, cert. denied, 306 N.C. 742, 295 S.E.2d 759 (1982).

Injury at Picnic. - Attending a good-will picnic at the invitation of the employer was held not to invoke the relation of the master and servant where the employee did no work and was not paid for attendance, nor penalized for nonattendance, nor ordered to go. Barber v. Minges, 223 N.C. 213, 25 S.E.2d 837 (1943).

Plaintiff was not entitled to compensation for a broken ankle suffered while playing volleyball at an annual picnic for faculty members in the radiology department in defendant school, where it was not clear that the radiology department in fact sponsored the picnic; attendance at the picnic was voluntary; no record of attendance was taken; participants were not paid for the time spent at the picnic, nor was any employee required to work at the medical school if he did not attend; the picnic, while certainly an annual custom, was not an event that employee regarded as being a benefit to which he was entitled as a matter of right, and the radiology department did not utilize the picnic as an opportunity to give a "pep" talk or grant awards. Chilton v. Bowman Gray School of Medicine, 45 N.C. App. 13, 262 S.E.2d 347 (1980).

Injury at Christmas Party. - Evidence established a sufficient nexus between injury and employment where employee injured her ankle while dancing at an annual Christmas party sponsored and paid for by employer, where wages were paid for the time employees spent at the party and where the plant manager considered the party an employee fringe benefit, one definite purpose of which was to improve employer-employee relations, and made a 20 to 30 minute speech praising the employees for their work and presenting service awards. Martin v. Mars Mfg. Co., 58 N.C. App. 577, 293 S.E.2d 816, cert. denied, 306 N.C. 742, 295 S.E.2d 759 (1982).

Injury While Washing Personal Car. - Claimant, employed as a night watchman, was injured on the employer's premises during his hours of duty when his trouser leg was caught on the bumper of his car, causing him to fall, as he was washing his personal car for his own purposes with the implied consent of the employer. There was no causal relationship between his employment and the injury, and therefore the injury did not arise out of the employment and was not compensable. Bell v. Dewey Bros., 236 N.C. 280, 72 S.E.2d 680 (1952).

Injury While Maintaining or Traveling in Personal Airplane. - When a person owns an airplane which he maintains and keeps for his personal use as well as for use when traveling for his employer, he is not protected by workers' compensation while he is doing something to maintain the airplane and not doing anything else to promote the employer's business. The Workers' Compensation Act was not intended to cover accidents which occur while an employee is repairing his own property which he uses for himself and for his employer. Pollock v. Reeves Bros., Inc., 70 N.C. App. 199, 319 S.E.2d 286 (1984), rev'd on other grounds, 313 N.C. 287, 328 S.E.2d 282 (1985).

Where employee was killed in accident while traveling in fellow employee's airplane, where the purpose of the trip was related to employer's business, and where employees were acting in the course of their employment at the time of the accident, the accident was fairly traceable to the employment as a contributing cause and the death of employee was an injury by accident arising out of and in the course of his employment. Pollock v. Reeves Bros., Inc., 313 N.C. 287, 328 S.E.2d 282 (1985).

Employee Assisting Another Contractor on Same Job. - Evidence to the effect that deceased employee was working under the direct supervision and instruction of his superior in attempting to make repairs on a drum that actually belonged to another contractor working on the same job and that the two contractors on prior occasions had assisted each other without charges sustained the finding that the injury arose out of and in the course of employment. Butler v. Jones Plumbing & Heating Co., 244 N.C. 525, 94 S.E.2d 556 (1956).

Voluntarily Helping Another Employee. - Claimant was employed as a lumber piler and was instructed to stay away from the saws, but there was evidence that on the day of his injury he was instructed to leave his regular job and to perform some work in the vicinity of one of the saws, and that while waiting at the place designated he started to assist another employee, in the absence of the regular sawyer, in cutting off a board, and suffered an injury when his hand came in contact with the saw. Two men were usually required to operate the saw. The court held that the evidence was sufficient to sustain the finding of the Industrial Commission that the injury arose out of and in the course of his employment. Riddick v. Richmond Cedar Works, 227 N.C. 647, 43 S.E.2d 850 (1947).

The employee's injury arose out of and during the course of employment, where she sustained an injury when she slipped and fell in the employer's icy parking lot after she temporarily left her work station to aid her co-employee, who also was the wife of the claimant's nephew. Choate v. Sara Lee Prods., 133 N.C. App. 14, 514 S.E.2d 529 (1999), aff'd, 351 N.C. 46, 519 S.E.2d 523 (1999).

Employee off Duty and on Personal Errand. - The Commission found facts which clearly showed that the deceased employee, although temporarily assigned to work in a distant town in another state, with board and room furnished by the power company for which the emergency work was being done, was off duty and upon a personal errand, unrelated to any duty in connection with his employment when he was struck by an automobile and killed. Sandy v. Stackhouse, Inc., 258 N.C. 194, 128 S.E.2d 218 (1962).

Injury While Working on Doghouse in Employer's Shop. - Injury to plaintiff salesman's hand, sustained while he was operating a power saw in defendant employer's shop, arose out of and in the course of his employment where plaintiff was working in the shop at the specific instruction of his employer but without any specific assignment, plaintiff had previously obtained permission to work on a doghouse in the shop during working hours when he had nothing else to do, plaintiff was allowed to use scrap material of the employer to build the doghouse, and plaintiff was operating the saw at the time of the injury to cut wood for the doghouse. Lee v. F.M. Henderson & Assocs., 17 N.C. App. 475, 195 S.E.2d 48, aff'd, 284 N.C. 126, 200 S.E.2d 32 (1973).

Assistance to Dump Truck Driver. - Findings of fact by the Industrial Commission that deceased employee drove his employer's truck to the city dump to dispose of trash from the employer's plant, and that the employee was killed at the city dump while trying to help a third party operate the dump mechanism on the third party's truck were held to support the Commission's determination that deceased was not acting for the benefit of his employer to any appreciable extent and that deceased's injuries did not arise out of and in the course of his employment. Short v. Slane Hosiery Mills, 4 N.C. App. 290, 166 S.E.2d 479 (1969).

Truck driver shot by security guards while trying to stop robber did not suffer injuries arising out of and in the course of his employment. Roman v. Southland Transp. Co., 350 N.C. 549, 515 S.E.2d 214 (1999).

Hunting Trip. - Evidence that an employee customarily acted as chauffeur, cook and valet to a company official on the official's trips to his cottage at a resort and that while on such a trip he went on a hunting trip with the official's sons and was fatally injured in an automobile accident was insufficient to support a finding that the accident arose out of the employment. Lewis v. W.B. Lea Tobacco Co., 260 N.C. 410, 132 S.E.2d 877 (1963).

Group Picture. - At the suggestion of her foreman, plaintiff joined with other employees to have a group picture taken for the sole benefit of the photographer. This was done during shifts. Plaintiff was injured by the collapse of the seat prepared by the photographer. It was held that it was error for the Commission to find that the injury arose out of the employment. Beavers v. Lily Mill & Power Co., 205 N.C. 34, 169 S.E. 825 (1933).

Assistance to Third Person in Reciprocity for Aid Requested for Employer's Benefit. - An employee sent to fix flat tires went to a filling station and requested free use of its air pump, but before inflation of the tires was completed, the filling station operator asked him to help push a stalled car, and while he was doing so he was struck by another car, resulting in permanent injury. It was held that the courtesies and assistance extended by the employee were in reciprocity for the courtesy of free air requested by the employee for the employer's benefit, so that the employee had reasonable ground to apprehend that refusal to render the assistance requested of him might well have resulted in like refusal of the courtesy requested by him, and therefore the findings supported the conclusion that the accident arose out of and in the course of employment. Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 85 S.E.2d 596 (1955).

VIII. INJURIES WHILE GOING TO AND FROM WORK.

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A. IN GENERAL.

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Injury Suffered Going to or Returning from Work Is Not Generally Compensable. - As a general rule an injury suffered by an employee while going to or returning from his work does not arise out of and in the course of his employment. Bray v. W.H. Weatherly & Co., 203 N.C. 160, 165 S.E. 332 (1932); Hardy v. Small, 246 N.C. 581, 99 S.E.2d 862 (1957); Humphrey v. Quality Cleaners & Laundry, 251 N.C. 47, 110 S.E.2d 467 (1959); Williams v. Brunswick County Bd. of Educ., 1 N.C. App. 89, 160 S.E.2d 102 (1968); Franklin v. Wilson County Bd. of Educ., 29 N.C. App. 491, 224 S.E.2d 657 (1976); Robertson v. Shepherd Constr. Co., 44 N.C. App. 335, 261 S.E.2d 16 (1979), cert. denied, 299 N.C. 545, 265 S.E.2d 405 (1980); Barham v. Food World, Inc., 300 N.C. 329, 266 S.E.2d 676, rehearing denied, 300 N.C. 562, 270 S.E.2d 105 (1980); Powers v. Lady's Funeral Home, 306 N.C. 728, 295 S.E.2d 473 (1982). See also Hunt v. State, 201 N.C. 707, 161 S.E. 203 (1931); Lassiter v. Carolina Tel. & Tel. Co., 215 N.C. 227, 1 S.E.2d 542 (1939); Schmoyer v. Church of Jesus Christ of Latter Day Saints, 81 N.C. App. 140, 343 S.E.2d 551, cert. denied, 318 N.C. 417, 349 S.E.2d 600 (1986).

An employee is not engaged in the prosecution of his employer's business while operating his personal car to the place where he is to perform the duties of his employment, nor while leaving his place of employment to go to his home. Ellis v. American Serv. Co., 240 N.C. 453, 82 S.E.2d 419 (1954).

The disallowance of recovery in the usual coming and going case is based, not upon the ground that the circumstances (i.e., the employee's going to or leaving work) are not within the course of employment, but upon considerations of time and place. In addition, the question of arising out of is not satisfied in many of these cases, especially where the injury is due to the hazards of the public highway, i.e., risks common to the general public. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968).

Unless Transportation Is Part of Employment Contract. - An injury sustained by an employee while going to or from work does not arise in the course of his employment and is not compensable unless the employer is under a contractual duty to transport employee or furnishes the means of transportation as an incident of the contract of employment. Whittington v. A.J. Schnierson & Sons, 255 N.C. 724, 122 S.E.2d 724 (1961).

An injury sustained in accidents occurring off the employer's premises while the employee is going to or returning from work is compensable when it is established that the employer, as an incident of the contract of employment, provides the means of transportation to and from the place where the work of the employment is performed. Harris v. Jack O. Farrell, Inc., 31 N.C. App. 204, 229 S.E.2d 45 (1976).

Or Unless Injury Was Due to Risk Incident to Employment. - While recovery may be denied where an injury is sustained while the employee is going to or coming from work, such denial is not upon the ground that going and coming are circumstances not within the course of employment. To the contrary, such activity is within the course of employment if the time and place requisites are satisfied, and injuries sustained while engaged therein are compensable if the injury arose out of employment, i.e., that they were due to an employment-connected risk. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968).

But Injury on Employer's Premises May Be Compensable. - The moment when the employee begins his work is not necessarily the moment when he gets into the employment, because a reasonable margin must be allowed him to get to the place of work if he is on the premises of the employer or on some access to the premises which the employer has provided. Hunt v. State, 201 N.C. 707, 161 S.E. 203 (1931). See also Bryan v. T.A. Loving Co., 222 N.C. 724, 24 S.E.2d 751 (1943).

Injuries sustained by an employee while going to or from the work place on premises owned or controlled by the employer are generally deemed to have arisen out of and in the course of employment. Strickland v. King, 293 N.C. 731, 239 S.E.2d 243 (1977).

Employee injured while traveling to and from his employment on the employer's premises is covered by this Chapter. Chandler v. Nello L. Teer Co., 53 N.C. App. 766, 281 S.E.2d 718 (1981), aff'd, 305 N.C. 292, 287 S.E.2d 890 (1982).

The "coming and going" rule provides that injuries which occur while an employee travels to and from work are not compensable; however, the "premises" exception applies when an employee is injured while on the employer's premises. Jennings v. Backyard Burgers, 123 N.C. App. 129, 472 S.E.2d 205 (1996).

Employee who waited almost 30 minutes to get a ride home from another employee and who was injured when the other employee caused a vehicle accident in the employer's parking lot was covered by the North Carolina Workers' Compensation Act and the trial court properly dismissed a lawsuit which the injured employee filed against the employee who gave the injured employee a ride. Ragland v. Harris, 152 N.C. App. 132, 566 S.E.2d 827 (2002).

Provided No Unreasonable Delay Is Chargeable to Employee. - Where an employee sustains injury going to or from his place of work on employer's premises or premises controlled by employer, the injury is compensable, provided no unreasonable delay is chargeable to employee. Williams v. Brunswick County Bd. of Educ., 1 N.C. App. 89, 160 S.E.2d 102 (1968).

As an exception to the general rule, known as the "going and coming rule," that injuries sustained by the employee while going to or from work are not ordinarily compensable, the great weight of authority holds that injuries 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 employment within the act and are compensable, provided the employee's act involves no unreasonable delay. Bass v. Mecklenburg County, 258 N.C. 226, 128 S.E.2d 570 (1962); Maurer v. Salem Co., 266 N.C. 381, 146 S.E.2d 432 (1966); Gallimore v. Marilyn's Shoes, 30 N.C. App. 628, 228 S.E.2d 39 (1976), rev'd on other grounds, 292 N.C. 399, 233 S.E.2d 529 (1977).

Coming and Going Rule Has Exceptions. - The general rule barring compensability of injuries sustained while traveling to or from work is subject to several exceptions, including the traveling salesman exception, the contractual duty exception, the special errand exception, and the dual purpose exception. Dunn v. Marconi Communs., Inc., 161 N.C. App. 606, 589 S.E.2d 150 (2003).

Where an employee worked as a health care aide and was involved in a car accident while driving from the employee's residence to the home of the employee's first patient for the day, the employee was entitled to workers' compensation benefits under an exception to the going and coming rule because the employee was acting within the course of employment at the time the injuries were sustained, since the employee was required to use the employee's private vehicle as part of the employee's employment and the employee was injured going to work. Hollin v. Johnston County Council on Aging, 181 N.C. App. 77, 639 S.E.2d 88 (2007), review denied, stay denied, 362 N.C. 235, 659 S.E.2d 732 (2008).

Parking Lot as Part of Premises. - It is usually held that an injury on a parking lot owned or maintained by the employer for his employees is an injury on the employer's premises. Maurer v. Salem Co., 266 N.C. 381, 146 S.E.2d 432 (1966); Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968).

Injuries sustained in automobile mishaps in company parking lots arise out of employment. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968).

Employees Required to Furnish Own Vehicles. - Where an employee who is required to furnish their own vehicle as part of their employment is injured going to or coming from work, such injuries are covered by the Workers' Compensation Act. Hollin v. Johnston County Council on Aging, 181 N.C. App. 77, 639 S.E.2d 88 (2007), review denied, stay denied, 362 N.C. 235, 659 S.E.2d 732 (2008).

Attempt to Climb Locked Parking Lot Gate. - Employee's negligence in attempting to climb employer's locked parking lot gate after his shift ended so as to reach his ride did not defeat the applicability of the "premises exception" to the "coming and going rule"; since the full Commission was the ultimate fact finder, it did not have to make specific findings of fact when it modified hearing commissioner's findings. Arp v. Parkdale Mills, Inc., 150 N.C. App. 266, 563 S.E.2d 62 (2002).

Adjacent Premises Used as Means of Ingress and Egress. - Employment may be said to begin when the employee reaches the entrance to the employer's premises where the work is to be done; but it is clear that in some cases the rule extends to include adjacent premises used by the employee as a means of ingress and egress with the express or implied consent of the employer. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968).

Route Chosen By Employer Not in Course of Employment. - Plaintiff's accidental injury, which resulted from a hazardous condition on property adjacent to his employer's premises, did not arise out of and in the course of employment although defendant employer instructed the employee to use that route for ingress and egress. Jennings v. Backyard Burgers, 123 N.C. App. 129, 472 S.E.2d 205 (1996).

Special Errand Exception to General Rule. - The special errand exception to the "coming and going" rule is no more than that - an exception to the general rule that accidents occurring while the employee is in transit to and from work are not compensable. Therefore, the special errand doctrine does not transform all employees covered by the Workers' Compensation Act into absolute insurers of the safety of employees called away on some special mission. Powers v. Lady' Funeral Home, 57 N.C. App. 25, 290 S.E.2d 720, rev'd on other grounds, 306 N.C. 728, 295 S.E.2d 473 (1982).

The "special errand" exception permits coverage of the employee from "portal to portal." Powers v. Lady's Funeral Home, 306 N.C. 728, 295 S.E.2d 473 (1982).

As to statement and application of "special errand rule," see Felton v. Hospital Guild, 57 N.C. App. 33, 291 S.E.2d 158, aff'd by divided S. Ct. as law of case but without precedential value, 307 N.C. 121, 296 S.E.2d 297 (1982).

The "special errand" exception provides that an injury is in the course of the employment if it occurs while the employee is engaged in a special duty or special errand for his employer. Schmoyer v. Church of Jesus Christ of Latter Day Saints, 81 N.C. App. 140, 343 S.E.2d 551, cert. denied, 318 N.C. 417, 349 S.E.2d 600 (1986).

Traveling Salesman Exception. - Where an employee worked as a health care aide and was involved in a car accident while driving from the employee's residence to the home of the employee's first patient for the day, the "traveling salesman" exception to the going and coming rule did not apply, because the employee had fixed work locations and fixed work hours, saw the same patients each week, and traveled to the same homes week after week. Hollin v. Johnston County Council on Aging, 181 N.C. App. 77, 639 S.E.2d 88 (2007), review denied, stay denied, 362 N.C. 235, 659 S.E.2d 732 (2008).

Same - Illustrative Case. - Where decedent was required, as a condition of his employment, to attend a four-week training seminar which was not offered at his regular place of employment, he was on a special errand to attend a training course at the direction of and for the benefit of his employer. Kirk v. State Dep't of Cor., 121 N.C. App. 129, 465 S.E.2d 301 (1995), review dismissed as improvidently granted, 344 N.C. 624, 476 S.E.2d 105 (1996).

Employee Held Not on Special Errand. - Evidence that church custodian, who was killed in an automobile accident late in the evening on the way from his parents' house to visit his fiancee, was planning to spend the night at the church following this visit so that despite an anticipated snowstorm he would be able to let a certain nonsupervisory volunteer into the church at 8:00 a.m. the next morning, when his work day ordinarily began, was not sufficient to establish that the custodian was on a special errand for his employer when he met his death. Schmoyer v. Church of Jesus Christ of Latter Day Saints, 81 N.C. App. 140, 343 S.E.2d 551, cert. denied, 318 N.C. 417, 349 S.E.2d 600 (1986).

The period of employment covers the working hours and such reasonable time as is required to pass to and from the employer's premises. Yates v. Hajoca Corp., 1 N.C. App. 553, 162 S.E.2d 119 (1968).

Injury While Returning to Jobsite at Direction of Foreman. - Where plaintiff 's return to jobsite to pick up his final paycheck was at foreman's direction, even though foreman had earlier discharged plaintiff, the employment relationship was still in effect; however, plaintiff 's injuries, sustained while he looked for foreman in a place other than where foreman had directed him to pick up the check, were not suffered in the course of employment. Byrd v. George W. Kane, Inc., 92 N.C. App. 490, 374 S.E.2d 480 (1988).

Accident While Driving Employer's Truck from Employee's Home to Place of Employment. - Where deceased was killed in a collision as he was driving a truck, owned and maintained by his employer, from his home to his place of employment, it was found that transportation to and from work was an incident of the employment, and that the accident arose out of and in the course of deceased's employment. Phifer v. Foremost Dairy, 200 N.C. 65, 156 S.E. 147 (1930).

Special Errand for Employer on Way to Work. - While on his way to work, plaintiff was injured in crossing the street to purchase supplies for defendant school. This was done at the request of the principal. It was held that plaintiff was employed in a special errand for his master. In such case employment begins from the time the employee leaves his home. Massey v. Board of Educ., 204 N.C. 193, 167 S.E. 695 (1933).

Contractual Duty Exception. - Where an employee worked as a health care aide and was involved in a car accident while driving from the employee's residence to the home of the employee's first patient for the day, the "contractual duty" exception to the going and coming rule did not apply, because, although the employee was reimbursed for travel as part of the job, the employee was not reimbursed for travel to the first patient's home in the morning and from the last patient's home to the employee's home in the afternoon. Hollin v. Johnston County Council on Aging, 181 N.C. App. 77, 639 S.E.2d 88 (2007), review denied, stay denied, 362 N.C. 235, 659 S.E.2d 732 (2008).

Injury to Police Officer on Call at All Times. - Recovery would be denied where a rural policeman on call at all times was killed in an automobile accident while driving his own car from his home to police headquarters to report for his regular working day. Davis v. Mecklenburg County, 214 N.C. 469, 199 S.E. 604 (1938).

Where the deceased was a motorcycle policeman with fixed hours of active patrol duty as well as a general obligation to make arrests at other hours when law violations came to his notice and to be "on call" at all times, his cycle was furnished by the city and he had the entire care of it, and he was privileged to keep it at home and did so and was riding home after regular hours when he was killed in a collision, the Commission properly found that his death was compensable. Smith v. City of Gastonia, 216 N.C. 517, 5 S.E.2d 540 (1939).

Policeman Killed While Returning to Work from Leave of Absence. - Where the evidence showed that a policeman was killed in an accident while returning to work from a leave of absence, the conclusion that he did not sustain injury by accident arising out of and in the course of his employment was sustained. McKenzie v. City of Gastonia, 222 N.C. 328, 22 S.E.2d 712 (1942).

Injury While Crossing Public Highway. - Where the evidence tended to show that plaintiff 's intestate, a civilian guard of a construction company, stationed at a main gate of a marine base to direct traffic and parking about such gate and on the highway immediately adjoining, was at the time of the accident on his way to his place of employment to report for work and was killed, after alighting from a bus, on a public highway immediately in front of such main gate, as he attempted to cross the highway ahead of an oncoming car, an award was error, as deceased was not on the premises of his employer and his injury and death did not arise out of and in the course of his employment. Bryan v. T.A. Loving Co., 222 N.C. 724, 24 S.E.2d 751 (1943).

Injury During Lunch Hour. - Findings to the effect that during lunch hour the employees were free to go as they pleased, that deceased employee had stopped his work for the lunch period and, in attempting to board a truck moving within the premises of the employer, fell and was fatally injured, with further evidence that the employee had been given no order and had no duty connected either with the truck or its contents, and was acting according to his own will, was held insufficient to show affirmatively that the injury resulted from a hazard incident to the employment, and supported the ruling of the Industrial Commission that it did not arise out of the employment. Matthews v. Carolina Std. Corp., 232 N.C. 229, 60 S.E.2d 93 (1950).

An employee who was hit by a car while crossing highway to eat lunch on employer's parking lot did not sustain an injury arising out of and in the course of employment. Horn v. Sandhill Furn. Co., 245 N.C. 173, 95 S.E.2d 521 (1956).

Injury to Employee at Plant After Hours on Private Business. - Where claimant, a foreman, returned to the employer's plant after his regular working hours to attend to certain private business, but before entering upon such business he assisted with certain work of the employer, and then sat down on a wall to rest, whereupon he fell and was injured, it was held that the evidence was insufficient to sustain a finding that plaintiff 's injury arose out of and in the course of his employment. Poteete v. North State Pyrophyllite Co., 240 N.C. 561, 82 S.E.2d 693 (1954).

Farm Employee Killed While Crossing Highway on Return from Barn to Home. - Where farm employee who lived on farm was killed while crossing highway when returning from barn to which he had gone to feed livestock to area of house in which he lived, the injury arose out of and in the course of his employment. Hardy v. Small, 246 N.C. 581, 99 S.E.2d 862 (1957).

Fall in Parking Lot. - Where the employer provided a parking lot on its premises next to its factory and permitted its employees to park their cars in the lot, an injury received by an employee in a fall while she was walking from her parked car on her way to the other part of the employer's premises where she actually worked was an injury arising out of and in the course of her employment within the purview of this section. Davis v. Devil Dog Mfg. Co., 249 N.C. 543, 107 S.E.2d 102 (1959).

Injury on Shopping Mall Parking Lot. - Salesperson for department store at mall shopping center who was injured after she had parked her automobile in an area in the mall parking lot designated for department store employees by the mall owners did not sustain an injury by an accident arising out of and in the course of her employment. Glassco v. Belk-Tyler Co., 69 N.C. App. 237, 316 S.E.2d 334 (1984).

Injuries on Employer's Private Road. - Injuries received by employees when their car went out of control as they were leaving work on a private road controlled and maintained by employer and leading from the area where the employees reported to work were held to have arisen out of and in the course of their employment. Robinson v. North Carolina State Hwy. Comm'n, 13 N.C. App. 208, 185 S.E.2d 333 (1971).

Injury After Leaving Premises. - Where accident occurred at a time after plaintiff had completed her regular work shift, had "clocked out" on the time clock provided by her employer for that purpose, and had left her employer's premises for the day and at a place which was not on her employer's premises and over which it had no control, the accident did not arise "in the course of " her employment. Taylor v. Albain Shirt Co., 28 N.C. App. 61, 220 S.E.2d 144 (1975), cert. denied, 289 N.C. 302, 222 S.E.2d 703 (1976).

Accident in Truck Operated by Fellow Employee. - Where the fatal accident occurred after the employees had completed their day's work at the job site, had punched out on the time clock, had left the place of their employment, and had started homeward in a truck owned and operated by a fellow employee whom they paid to transport them, the injury by accident did not arise out of and in the course of employment with defendant employer. Harris v. Jack O. Farrell, Inc., 31 N.C. App. 204, 229 S.E.2d 45 (1976).

Accident Returning from Meeting Where Going to and from Same Was Part of Duties. - Plaintiff 's accident on a city street as she was returning home to write a report about a work-related meeting which she had just attended was an accident in the course of her employment where going to and from the meetings was a part of plaintiff 's job duties for which she was paid the same as when actually in the office or at community meetings. Warren v. City of Wilmington, 43 N.C. App. 748, 259 S.E.2d 786 (1979).

Accident Returning from Meeting Held Not Part of Duties. - Although plaintiff's presence was required at a meeting after which his accident occurred, his travel from that meeting should not be included within the scope of his employment duties. Being required to drive one's car to a meeting is no different from being required to drive one's car to work. When plaintiff left the meeting he was not traveling to a destination required by his employer nor was he engaged in the furtherance of his employer's business. Wright v. Wake County Pub. Schs., 103 N.C. App. 282, 405 S.E.2d 228 (1991).

Fall in Loading Zone. - An injury to plaintiff grocery store employee when she slipped and fell on ice in a loading zone in front of defendant employer's store in a shopping center while she was walking to her work site after parking her car in the shopping center parking lot did not occur on her employer's premises and thus did not arise out of and in the course of her employment, where plaintiff failed to show that she was performing any duties for employer at the time of her injury or that she was exposed to any danger greater than that of the public generally. Barham v. Food World, Inc., 300 N.C. 329, 266 S.E.2d 676, rehearing denied, 300 N.C. 562, 270 S.E.2d 105 (1980).

Illustrative Cases. - An employee injured in an automobile accident while returning to work from his home was not entitled to any of those exceptions where he was on a personal errand at the time of his accident and the trip did not serve any business purpose. Dunn v. Marconi Communs., Inc., 161 N.C. App. 606, 589 S.E.2d 150 (2003).

B. WHERE EMPLOYER FURNISHES TRANSPORTATION.

.

Employer would not expose himself to liability for workers' compensation purposes by gratuitously furnishing transportation for his employees. Travelers Ins. Co. v. Curry, 28 N.C. App. 286, 221 S.E.2d 75, cert. denied, 289 N.C. 615, 223 S.E.2d 396 (1976).

But Employer Who Furnishes Transportation as Incident to Contract of Employment May Be Liable. - While ordinarily an employer is not liable under this Chapter for an injury suffered by an employee while going to or returning from work, the employer may be held liable when he furnishes the means of transportation as an incident to the contract of employment. Smith v. City of Gastonia, 216 N.C. 517, 5 S.E.2d 540 (1939); Robertson v. Shepherd Constr. Co., 44 N.C. App. 335, 261 S.E.2d 16 (1979), cert. denied, 299 N.C. 545, 265 S.E.2d 405 (1980).

Injuries received by an employee while traveling to or from his place of employment are usually not covered by the act unless the employer furnishes the means of transportation as an incident of the contract of employment. Strickland v. King, 293 N.C. 731, 239 S.E.2d 243 (1977).

North Carolina has long held as compensable injuries sustained by employees while on the way to or returning from work where the employer provides the means of transportation. Williams v. Brunswick County Bd. of Educ., 1 N.C. App. 89, 160 S.E.2d 102 (1968).

Injuries sustained by an employee while being transported to or from work in a conveyance furnished by his employer pursuant to an express or implied term of the contract of employment are compensable. Enroughty v. Black Indus., Inc., 13 N.C. App. 400, 185 S.E.2d 597, cert. denied, 280 N.C. 721, 186 S.E.2d 923 (1972).

When the journey to or from work is made in the employer's conveyance, the journey is in the course of employment, the reason being that the risks of the employment continue throughout the journey. Battle v. Bryant Elec. Co., 15 N.C. App. 246, 189 S.E.2d 788, cert. denied, 281 N.C. 755, 191 S.E.2d 353 (1972).

As May Employer Who Makes Allowances to Cover Cost of Transportation. - Injuries sustained in an automobile accident by employees while on their way to or from work in an automobile owned by one of them arise out of and in the course of their employment when, under the terms of the employment and as an incident to the contract of employment, allowances are made by the employer to cover the cost of such transportation. Puett v. Bahnson Co., 231 N.C. 711, 58 S.E.2d 633 (1950). See also Phifer v. Foremost Dairy, 200 N.C. 65, 156 S.E. 147 (1930), where defendant provided deceased with a truck for use in defendant's business and in taking deceased to and from work; Edwards v. T.A. Loving Co., 203 N.C. 189, 165 S.E. 356 (1932), where deceased's contract of service provided for transportation by the employer.

An injury suffered by an employee while going to or from his work arises out of and in the course of employment when the employee, under the terms of the employment and, as an incident to the contract of employment, is paid an allowance to cover the cost of such transportation. Williams v. Brunswick County Bd. of Educ., 1 N.C. App. 89, 160 S.E.2d 102 (1968).

The test in such cases is whether the vehicle furnished by employer is one which the employees are required, or as a matter of right are permitted, to use by virtue of their contract, or whether it is furnished gratuitously for the mere accommodation of the workmen. Lassiter v. Carolina Tel. & Tel. Co., 215 N.C. 227, 1 S.E.2d 542 (1939), affirming denial of compensation where transportation was furnished gratuitously; Robertson v. Shepherd Constr. Co., 44 N.C. App. 335, 261 S.E.2d 16 (1979), cert. denied, 305 N.C. 395, 290 S.E.2d 364 (1982). See also Geiger v. Guilford College Community Volunteer Firemen's Ass'n, 668 F. Supp. 492 (M.D.N.C. 1987).

Trips to and from Lunch. - The rule that traveling to and from work on a conveyance furnished by the employer is in the course of employment is applicable to trips to and from lunch. Enroughty v. Black Indus., Inc., 13 N.C. App. 400, 185 S.E.2d 597, cert. denied, 280 N.C. 721, 186 S.E.2d 923 (1972).

Transportation Furnished in Accordance with Custom. - Where employer hired two employees to ride on truck to help driver unload, and on the last trip the driver consented to let the employees off at the place on his route nearest their homes, in accordance with established custom, and one of the employees attempted to alight before the truck had completely stopped, contrary to express orders, and fell to his mortal injury, the evidence was sufficient to sustain the finding that the accident arose out of and in the course of the employment. Latham v. Southern Fish & Grocery Co., 208 N.C. 505, 181 S.E. 640 (1935).

Riding in Another Vehicle at Direction of Employer's Foreman. - The evidence tended to show that defendant's employees were required to check in at the office in the morning, were then transported to the job, and after completion of the day's work were transported back to the office where they received instructions as to the next day's work before checking out, their working time being computed from the time of checking in until the time of checking out, that on the date in question they were carried to the job in a truck, but that the president's car was sent to bring them back because of rain, that when deceased started to get in the car there were already six persons, including the driver, in the car, that the foreman said he could crowd in the car or ride in with another employee who was driving his own car, and that deceased then rode in with the other employee, and was fatally injured in an accident occurring after they had reached the city in which defendant's place of business was maintained and while they were on their way to defendant's office to check out. The evidence was sufficient to support the finding of the Industrial Commission that death resulted from an accident arising out of and in the course of the employment, the general rule of nonliability for an accident occurring while an employee is being transported to or from work in a conveyance of a third person over which the employer has no control not being applicable upon the evidence. Mion v. Atlantic Marble & Tile Co., 217 N.C. 743, 9 S.E.2d 501 (1940).

Abandoning Vehicle Furnished by Employer. - Where an employer was under obligation to transport its employees from the woods where they worked to a camp, and provided for that purpose a safety car attached to its railroad train, having forbidden its employees to use the more hazardous log train, and deceased was killed in attempting to get on the log train and thus return to camp, the employee was killed as result of injury by accident arising out of and in the course of his employment. Archie v. Greene Bros. Lumber Co., 222 N.C. 477, 23 S.E.2d 834 (1943).

Where making a trip to a farm to load poultry and a return trip to the place of business of the employer after the poultry was loaded constituted a substantial part of the services for which claimant was employed, the transfer of claimant from the truck of the employer to his own automobile in order that he might have it so that he could return home after he made his required report at the office of his employer did not constitute a distinct departure on a personal errand disassociated from his master's business, where claimant's home was located on the most direct route between the farm and the plant, and where when the collision occurred claimant was proceeding on this direct route to the place of business of his employer. Brewer v. Powers Trucking Co., 256 N.C. 175, 123 S.E.2d 608 (1962).

Abandonment of Employment. - Findings to the effect that the deceased employee was furnished a car for transportation to and from his work, that he quit work about 7:00 P.M., met a friend for dinner, took repeated drinks throughout the evening, made several trips, on one of which he drove approximately 100 miles per hour, in search of a girl to join the party, and some five hours thereafter started for home in the employer's car, and was killed in a wreck occurring on the direct route from the employer's place of business to the employee's home, held to show an abandonment of employment rather than a deviation from it, and therefore the accident did not arise in the course of the employment. Alford v. Quality Chevrolet Co., 246 N.C. 214, 97 S.E.2d 869 (1957).

Isolated Instance of Permission to Drive Company Truck Home. - Where deceased employee had permission to drive company truck home the day of the accident, the permission given the deceased on this single, isolated occasion would not make the operation of the pickup truck an incident of his contract of employment. Robertson v. Shepherd Constr. Co., 44 N.C. App. 335, 261 S.E.2d 16 (1979), cert. denied, 299 N.C. 545, 265 S.E.2d 405 (1980).

IX. INJURIES WHERE EMPLOYMENT ENTAILS TRAVELING.

.

Employees whose work entails travel away from the employer's premises are held to be within the course of their employment continuously during the trip, except when a distinct departure on a personal errand is shown, in the majority of jurisdictions. Brewer v. Powers Trucking Co., 256 N.C. 175, 123 S.E.2d 608 (1962); Kiger v. Bahnson Serv. Co., 260 N.C. 760, 133 S.E.2d 702 (1963); Clark v. Burton Lines, 272 N.C. 433, 158 S.E.2d 569 (1968); Martin v. Georgia-Pacific Corp., 5 N.C. App. 37, 167 S.E.2d 790 (1969); Smith v. Central Transp., 51 N.C. App. 316, 276 S.E.2d 751 (1981); Chandler v. Nello L. Teer Co., 53 N.C. App. 766, 281 S.E.2d 718 (1981), aff'd, 305 N.C. 292, 287 S.E.2d 890 (1982).

When travel is contemplated as part of the work, the rule is that the employment includes not only the actual doing of the work, but also a reasonable margin of time and space necessary to be used in passing to and from the place where the work is to be done, when the latter is expressly or impliedly included in the terms of the employment. Alford v. Quality Chevrolet Co., 246 N.C. 214, 97 S.E.2d 869 (1957); Yates v. Hajoca Corp., 1 N.C. App. 553, 162 S.E.2d 119 (1968).

As a general rule, accidents sustained while an employee is going to and from work are not within the course of the employment. However, where travel is contemplated as a part of the work, accident in travel is compensable. This exception is often referred to as the "traveling salesman's exception" to the going and coming rule. Ross v. Young Supply Co., 71 N.C. App. 532, 322 S.E.2d 648 (1984).

An employee whose work entails travel away from the employer's premises acts within the course of his employment continuously during the trip, unless there is proof of distinct or total departure on a personal errand. Hobgood v. Anchor Motor Freight, 68 N.C. App. 783, 316 S.E.2d 86 (1984).

Distinct and Total Departure Not Applicable. - Nurse's going to her employer's office on way to her patient's home in the same town as the office to drop off required time reports was not a distinct and total departure on a personal errand even if she deviated from the most direct route to the home. Munoz v. Caldwell Mem'l Hosp., 171 N.C. App. 386, 614 S.E.2d 448 (2005).

Injuries arising out of the necessity of sleeping in hotels or eating in restaurants away from home are usually held compensable. Martin v. Georgia-Pacific Corp., 5 N.C. App. 37, 167 S.E.2d 790 (1969); Smith v. Central Transp., 51 N.C. App. 316, 276 S.E.2d 751 (1981).

Injury While Retrieving Laundry at Hotel. - In a workers' compensation action brought after the employee fell while retrieving laundry at a hotel, denial of the employee's claim was not erroneous because the employee was not injured while attending to personal needs that had to be met before his traveling duties for his employer were completed. The North Carolina Industrial Commission made no finding to suggest that the act by the employee of doing his laundry was necessary to further, directly or indirectly, the business of his employer. McSwain v. Industrial Commer. Sales & Serv., LLC, - N.C. App. - , 841 S.E.2d 345 (2020), appeal dismissed, as moot, 850 S.E.2d 360, 2020 N.C. App. LEXIS 809 (N.C. Ct. App. 2020); review dismissed, as moot, 853 S.E.2d 161, 2021 N.C. LEXIS 94 (N.C. 2021); review denied, mot. granted, 853 S.E.2d 166, 2021 N.C. LEXIS 92 (N.C. 2021).

When a traveling man slips in the street or is struck by an automobile between his hotel and a restaurant, the injury has been held compensable, even though the accident occurred on a Sunday evening, or involved an extended trip occasioned by employee's wish to eat at a particular restaurant. Martin v. Georgia-Pacific Corp., 5 N.C. App. 37, 167 S.E.2d 790 (1969).

Necessary Business Trip Combining Simultaneous Private Purpose. - If the work of the employee creates the necessity for travel, such is in the course of his employment, even though he is serving at same time some purpose of his own. Bee v. Yates Aluminum Window Co., 46 N.C. App. 96, 264 S.E.2d 368 (1980).

Trip Made Primarily for Personal or Social Reasons. - Injuries received while on a trip being made primarily for personal or social reasons and not in performance of duty are not compensable, even if the employer is incidentally benefited by the trip. Ridout v. Rose's 5-10-25 › Stores, 205 N.C. 423, 171 S.E. 642 (1933), in which deceased went with another to visit the other's girlfriend and while on the visit stopped to get certain goods for his employer.

Continuity Between Employment and Travel. - If it be conceded the course of employment included the travel home, then certainly there must be reasonable continuity between the employment and the travel. Alford v. Quality Chevrolet Co., 246 N.C. 214, 97 S.E.2d 869 (1957); Yates v. Hajoca Corp., 1 N.C. App. 553, 162 S.E.2d 119 (1968).

Traveling Salesman Exception. - Nurse, who was required to see only one patient per day, to be paid excess mileage, and to turn in time and mileage that day, had a compensable accident going to the hospital's office while going to her patient's home in the same town under the traveling salesman exception. Munoz v. Caldwell Mem'l Hosp., 171 N.C. App. 386, 614 S.E.2d 448 (2005).

Because hospital's home health care nurse had multiple patients and work locations and did not have a fixed work location as in Hunt v. Tender Loving Care Home Care Agency, Inc., 153 N.C. App. 266, 569 S.E.2d 675 (2002), her accident was compensable under the traveling salesman exception. Munoz v. Caldwell Mem'l Hosp., 171 N.C. App. 386, 614 S.E.2d 448 (2005).

Injury to Salesman on Weekend Trip. - Evidence that plaintiff, a traveling salesman, used his employer's car for a weekend trip and was injured in a wreck in returning was held to support the finding of the Industrial Commission that the accident did not arise out of and in the course of the employment, notwithstanding that the injured employee, at the destination of the trip, met and conversed with a representative of the employer, without appointment or direction of the employer, primarily in regard to a personal matter. Porter v. Noland Co., 215 N.C. 724, 2 S.E.2d 853 (1939).

Fishing Trip. - Injury to a Boy Scout executive by accident while on a fishing trip on the high seas while attending an executive's conference arose out of and in the course of his employment when the executive was directed to attend the conference with all expenses paid by Boy Scout council, and the council prepared an agenda of recreational projects, including deep sea fishing, and impliedly required each executive to select one of the projects as an aid to his advancement and better qualifications to carry on his work in scouting. Rice v. Uwharrie Council Boy Scouts of Am., 263 N.C. 204, 139 S.E.2d 223 (1964).

Contractual Duty Exception. - Nurse, who was required to see only one patient per day, to be paid excess mileage, and to turn in time and mileage that day, had a compensable accident going to the hospital's office while going to her patient's home in the same town under the contractual duty exception. Munoz v. Caldwell Mem'l Hosp., 171 N.C. App. 386, 614 S.E.2d 448 (2005).

Choking on Food in Restaurant. - There was no causal relationship between decedent's employment and his choking on a piece of meat when his day's work was over and, business engagements scheduled for the morrow, he was having a leisurely evening meal at a public restaurant with an old friend whom the trip had enabled him to visit. Bartlett v. Duke Univ., 284 N.C. 230, 200 S.E.2d 193 (1973).

Employee Sent to Africa by Employer. - Where employer sent employees on a business trip to an isolated part of Africa and provided employees with sleeping, eating and recreational facilities within various company project areas, while they were within the project areas the employees were continuously in an employment situation and were protected by this Chapter. Chandler v. Nello L. Teer Co., 53 N.C. App. 766, 281 S.E.2d 718 (1981), aff'd, 305 N.C. 292, 287 S.E.2d 890 (1982).

Employee sent to Africa by employer to work on road project, who went on a personal detour to visit a nearby sugar plantation but was back within the confines of the road project when accident occurred, returning to his place of employment and the sleeping accommodations provided, was entitled to compensation under this Chapter. Chandler v. Nello L. Teer Co., 53 N.C. App. 766, 281 S.E.2d 718 (1981), aff'd, 305 N.C. 292, 287 S.E.2d 890 (1982).

X. ASSAULTS AND FIGHTS.

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Assault as Accident When Unexpected. - Although an assault is an intentional act, it may be an accident within the meaning of the act when it is unexpected and without design on the part of the employee who suffers from it. Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972).

An assault is an "accident" within the meaning of the Workers' Compensation Act when from the point of view of the worker who suffers from it, it is unexpected and without design on his part, although intentionally caused by another. Withers v. Black, 230 N.C. 428, 53 S.E.2d 668 (1949); Gallimore v. Marilyn's Shoes, 292 N.C. 399, 233 S.E.2d 529 (1977).

An unexpected assault may be considered as an accident despite its characterization as an intentional act. Daniels v. Swofford, 55 N.C. App. 555, 286 S.E.2d 582 (1982).

And When Arising Out of Work. - Where men are working together at the same work, disagreements may be expected to arise about the work, the manner of doing it, the use of tools, interference with one another, and many other details which may be trifling or important. Infirmity of temper, or worse, may be expected, and occasionally blows and fighting. When the disagreement arises out of the work in which two men are engaged, and as a result of it one injures the other, it may be inferred that the injury arose out of employment. Withers v. Black, 230 N.C. 428, 53 S.E.2d 668 (1949).

Where a worker is injured by a fellow employee because of a dispute about the manner of doing the work he is employed to do, the accident to the injured worker grows out of the employment and is compensable. Withers v. Black, 230 N.C. 428, 53 S.E.2d 668 (1949).

North Carolina Industrial Commission properly concluded that a truck driver's injury and death following a road rage incident with another driver, in which the other driver ran over the decedent when the decedent exited his vehicle to confront the other driver, resulted from an injury by accident arising out of and in the course of his employment. Dodson v. Dubose Steel, Inc., 159 N.C. App. 1, 582 S.E.2d 389 (2003).

The danger which causes the assault must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence. Gallimore v. Marilyn's Shoes, 292 N.C. 399, 233 S.E.2d 529 (1977).

Where the assault upon the employee grows out of a motive foreign to the employment relationship, the necessary connection between the injury and the employment is not present and no compensation for the injury is proper. Gallimore v. Marilyn's Shoes, 292 N.C. 399, 233 S.E.2d 529 (1977).

Assault by Third Person. - The mere fact that injury is the result of the willful or criminal assault of a third person does not prevent the injury from being accidental. Gallimore v. Marilyn's Shoes, 30 N.C. App. 628, 228 S.E.2d 39 (1976), rev'd on other grounds, 292 N.C. 399, 233 S.E.2d 529 (1977).

Substantial evidence supported the award of total disability compensation, medical expenses, and psychological expenses under G.S. 97-2(6) to a hospital employee who was assaulted and injured by a man when she was going from her office to the morgue to retrieve records. D'Aquisto v. Mission St. Joseph's Health Sys., 171 N.C. App. 216, 614 S.E.2d 583 (2005), rev'd on other grounds, review improvidently denied, in part, 360 N.C. 567, 633 S.E.2d 89 (2006).

Assault by Fellow Servant. - The mere fact that the injury is the result of a willful and criminal assault of a fellow servant does not of itself prevent the injury from being accidental. Conrad v. Cook-Lewis Foundry Co., 198 N.C. 723, 153 S.E. 266 (1930).

If one employee assaults another solely from anger, hatred, revenge, or vindictiveness, not growing out of or as an incident to the employment, the injury is to be attributed to the voluntary act of the assailant, and not as an incident of the employment. But if the assault is incidental to some duty of the employment, the injuries suffered thereby may properly be said to arise out of the employment. Ashley v. F-W Chevrolet Co., 222 N.C. 25, 21 S.E.2d 834 (1942), wherein finding held to sustain award.

No Compensation Where Cause of Assault Is Personal. - When the moving cause of an assault upon an employee by a third person is personal, or the circumstances surrounding the assault furnish no basis for a reasonable inference that the nature of the employment created the risk of such an attack, the injury is not compensable. This is true even though the employee was engaged in the performance of his duties at the time, for even though the employment may have provided a convenient opportunity for the attack it was not the cause. Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972).

Injury is not compensable when it is inflicted in an assault upon an employee by an outsider as the result of a personal relationship between them, so that the attack was not created by and not reasonably related to the employment; to be compensable, the assault must have had such a connection with the employment that it can be found logically that the nature of the employment created the risk of the attack. Hemric v. Reed & Prince Mfg. Co., 54 N.C. App. 314, 283 S.E.2d 436 (1981), cert. denied, 304 N.C. 726, 288 S.E.2d 806 (1982).

Injuries which an employee suffered when the employee's ex-boyfriend entered the employee's workplace and shot the employee three times were not compensable under North Carolina's Workers' Compensation Act even though the employee's supervisor knew that the the ex-boyfriend had assaulted the employee and threatened to kill the employee and the supervisor might have prevented the incident by calling police. Dildy v. MBW Invs., Inc., 152 N.C. App. 65, 566 S.E.2d 759 (2002).

Killing as Result of Personal Enmity Alone. - In order for compensation to be recovered for the death of an employee under this act it is required that the injury causing death result from an accident arising out of and in the course of the employment, as a proximate cause, and where compensation is sought for the killing of one employee by another for purely personal and unrelated grounds, or when one was employed at night and the other by day, and the killing at night was a result of personal enmity alone, and these facts are found by the Commission and approved by the trial judge, the judgment denying the right of compensation will be affirmed on appeal. Harden v. Thomasville Furn. Co., 199 N.C. 733, 155 S.E. 728 (1930).

The risk of murder by a jealous spouse is not one which a rational mind would anticipate as an incident of the employment of both sexes in a business or industry. The possibility that an employee's spouse will become jealous of an associate, with or without cause, is a hazard common to the neighborhood; it is independent of the relation of master and servant and is not a risk arising out of the nature of the employment. Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972).

Employer's Knowledge of Threats Irrelevant. - Where an employee is injured in the course of employment by an outsider because of hate, jealousy, or revenge based on a personal relationship, the fact that the employer has knowledge of prior threats of death or bodily harm does not result in the injury's arising out of the employment; to allow compensation under such circumstances would have the practical effect of placing on the employer the duty of yielding to such threats of violence and terminating the employment of any worker so threatened, which would saddle the employer with a grossly unfair burden and the employee, in many cases, with an unjust job termination. Hemric v. Reed & Prince Mfg. Co., 54 N.C. App. 314, 283 S.E.2d 436 (1981), cert. denied, 304 N.C. 726, 288 S.E.2d 806 (1982).

Shooting by Assistant. - Where in a proceeding under this Act the evidence tended to show that the employee was a moulder in the employer's foundry, and that he struck his assistant with a shovel after the assistant had spoken words to him which he deemed insulting, whereupon the assistant left the employment and returned and shot the claimant while he was doing his work, causing permanent injury, the evidence was sufficient to bring the case within the intent and meaning of the terms "injury by accident arising out of and in the course of the employment." Conrad v. Cook-Lewis Foundry Co., 198 N.C. 723, 153 S.E. 266 (1930).

Shooting of Night Watchman. - Even though one be engaged in duties involving peculiar risks, one may not recover for any injury not arising out of those risks. Harden v. Thomasville Furn. Co., 199 N.C. 733, 155 S.E. 728 (1930), where a night watchman was shot by a fellow employee because of a domestic affair.

Deceased was a night watchman. While in a small store on defendant's premises which was operated by a third person, he was shot by one who attempted to rob the store. It was held that the injury bore no relation to deceased's employment. Smith v. Newman Mach. Co., 206 N.C. 97, 172 S.E. 880 (1932).

Employee Shot by Hunter. - Plaintiff was shot in the eye by a hunter while he was working on his employer's truck. The injury did not result from a cause peculiar to the employment in which plaintiff was engaged. Whitley v. North Carolina State Hwy. Comm'n, 201 N.C. 539, 160 S.E. 827 (1931); Bain v. Travora Mfg. Co., 203 N.C. 466, 166 S.E. 301 (1932).

Murder by Robber. - Deceased was required to report at defendant's mill before the other employees. It was known that many hoboes slept near the boiler room where he worked. He was murdered by a robber while he was engaged in his duties and before any other employees reported for work. It was held that the injury arose out of the employment. Goodwin v. Bright, 202 N.C. 481, 163 S.E. 576 (1932). See also West v. East Coast Fertilizer Co., 201 N.C. 556, 160 S.E. 765 (1931), where deceased, a night watchman, was killed by a robber.

Assault upon Employee Collecting Accounts. - Where there was evidence that it was employee's duty to collect accounts of his employer for goods sold upon the installment plan and that the employee endeavored to collect an account from a debtor and was struck by another also owing an account to the employer, the injury resulting in death, the evidence was sufficient to sustain a finding by the Industrial Commission that the injury was the result of an accident arising out of and in the course of the employment, and such a finding of fact was conclusive and binding. Winberry v. Farley Stores, 204 N.C. 79, 167 S.E. 475 (1933).

Game Warden Killed by Person Against Whom He Testified in Criminal Action. - Where decedent, a game warden, was killed by a person against whom he had testified in a criminal action for violation of the game law, the court held that the injury did not arise out of and in the course of employment. Hollowell v. North Carolina Dep't of Conservation & Dev., 206 N.C. 206, 173 S.E. 603 (1934).

Fall Suffered While Running from Assailant. - A fellow employee, who was drunk at the time, ran plaintiff away from his work. Plaintiff returned, only to run again when he saw his assailant approaching. Plaintiff 's foreman was present. In leaving the second time, plaintiff fell and broke his leg. The Commission's award of compensation was affirmed. The injury had its origin in plaintiff 's employment. It was immaterial that it was unexpected. Wilson v. Boyd & Goforth, 207 N.C. 344, 177 S.E. 178 (1934).

Employee in Moving Vehicle Struck by Flying Object. - Where a deliveryman was driving a truck in the course of his employment and, while passing a group of boys playing baseball, a baseball struck the windshield and a piece of glass from the windshield struck him in the eye, resulting in serious injury, it was held that the injury resulted from an accident arising out of and in the course of the employment, within the meaning of this section. Perkins v. Sprott, 207 N.C. 462, 177 S.E. 404 (1934), distinguishing Whitley v. North Carolina State Hwy. Comm'n, 201 N.C. 539, 160 S.E. 827 (1931) and Bain v. Travora Mfg. Co., 203 N.C. 466, 166 S.E. 301 (1932), apparently on the ground that in those cases the plaintiff was struck by a bullet, whereas here, the glass and not the ball directly injured plaintiff.

Dispute over Matters Foreign to Employment. - Evidence tending to show that a night watchman employed to watch over one section of a highway under construction came over to a night watchman employed to watch over another section thereof, and engaged in an altercation relating to matters foreign to the employment, and that one of them killed the other as a result thereof, was sufficient to support the finding of the Industrial Commission that the deceased's death was not the result of an accident arising out of and in the course of the employment, and therefore such finding was conclusive on the courts. McNeill v. C.A. Ragland Constr. Co., 216 N.C. 744, 6 S.E.2d 491 (1940).

As to assault by foreman in discharging employee, see McCune v. Rhodes-Rhyne Mfg. Co., 217 N.C. 351, 8 S.E.2d 219 (1940).

Assault Arising from Dispute over Work. - Where the evidence disclosed that two employees had no personal contacts outside of the employment, and there was evidence that the dispute between them arose over the work they were performing for their common employer, the evidence was sufficient to sustain the finding by the Industrial Commission that an assault made by the one upon the other arose out of the employment. Withers v. Black, 230 N.C. 428, 53 S.E.2d 668 (1949).

Where there was friction and enmity between two employees, growing out of criticism of the work of one of them by the other and complaint thereof to the employer, and the employee whose work was criticized assaulted his fellow worker from anger and revenge over such criticism, which resulted in the death of the one assaulted, such death occurred from an accident in the course of the employment. Hegler v. Cannon Mills Co., 224 N.C. 669, 31 S.E.2d 918 (1944).

Shooting of three employees by mentally disturbed coemployee while they were at work in locker plant arose out of and in the course of employment though shooting was "triggered" by a draft board incident, where shooter stated that reason for shooting was resentment of "domination" by coemployees. Zimmerman v. Elizabeth City Freezer Locker, 244 N.C. 628, 94 S.E.2d 813 (1956).

Shooting by Boyfriend of Coworker. - Injuries received by plaintiff at place of employment when the boyfriend of a coworker shot both plaintiff and coworker did not arise out of his employment, where the assault resulted from the personal relationship between the coworker and her boyfriend and was not created by or reasonably related to the employment, notwithstanding the fact that plaintiff was present in the office in which the shooting occurred because he had been instructed to keep a record of coworker's hours. Hemric v. Reed & Prince Mfg. Co., 54 N.C. App. 314, 283 S.E.2d 436 (1981), cert. denied, 304 N.C. 726, 288 S.E.2d 806 (1982).

XI. HORSEPLAY.

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Horseplay as Risk Assumed by Employer. - The act contemplates the gathering together of workers of varying characteristics, and the risks and hazards of such close contact, including joking and pranks by the workers, are incidents to the business and grow out of it and are ordinary risks assumed by the employer under the act. Chambers v. Union Oil Co., 199 N.C. 28, 153 S.E. 594 (1930). See also Wilson v. Town of Mooresville, 222 N.C. 283, 22 S.E.2d 907 (1942).

Injuries resulting from horseplay initiated and participated in by a claimant have not been excluded from the Workers' Compensation Act by the decision of the State Supreme Court in Chambers v. Union Oil Co., 199 N.C. 28, 153 S.E. 594 (1930). Bare v. Wayne Poultry Co., 70 N.C. App. 88, 318 S.E.2d 534 (1984), cert. denied, 312 N.C. 796, 325 S.E.2d 484 (1985).

Where Injured Employee Did Not Participate in Horseplay He May Recover. - Where the injured employee does not participate in the sportive acts of his fellow employee, the injury is compensable. Chambers v. Union Oil Co., 199 N.C. 28, 153 S.E. 594 (1930), where claimant was accidentally shot by the discharge of a gun, which a fellow truck driver carried in his truck, while he was putting oil in his own truck, commented on in 9 N.C.L. Rev. 105 (1931).

If an employee is injured as a result of the horseplay of a fellow worker, the injured employee is not precluded from recovering his damages under this act if he did not participate therein. Chambers v. Union Oil Co., 199 N.C. 28, 153 S.E. 594 (1930).

Injuries occurring after the employee has ceased his horseplay and returned to work are compensable. Michaux v. Gate City Orange Crush Bottling Co., 205 N.C. 786, 172 S.E. 406 (1934), affirming award of compensation to deceased, who was killed in trying to catch his employer's truck, which had left him while he was wrestling with a stranger.

Thrill seeking which bears no conceivable relation to accomplishing the job for which the employee was hired moves the employee from the scope of his employment. Hoyle v. Isenhour Brick & Tile Co., 306 N.C. 248, 293 S.E.2d 196 (1982).

Back Injury Caused by Fellow Employee. - Plaintiff employee, who was injured when he told co-worker who was sitting on a box of cloth in employer's dyeing department that he was going to turn him over onto the floor, upon which co-employee got up and grabbed the front of plaintiff 's belt and jerked him, causing an injury to plaintiff 's back which eventually resulted in plaintiff having a disc removed from his back by surgery, sustained his injury by accident arising out of and in the course of his employment as a result of horseplay, and was entitled to compensation. McGraw v. Fieldcrest Mills, Inc., 84 N.C. App. 307, 352 S.E.2d 435 (1987).

Death by Drowning - Held Compensable. - The death of a 14-year-old employee of a sanitary district by drowning while he was attempting to wade across a reservoir to complete his work of cutting weeds on the side arose out of and in the course of his employment, although he had received general instructions at an earlier time not to go into the water, where the place at which he stepped into the water was shallow and the danger was not obvious, and decedent's actions were thus not so extreme as to break the causal connection between his employment and his death. Hensley v. Caswell Action Comm., Inc., 296 N.C. 527, 251 S.E.2d 399 (1979).

Same - Held Not Compensable. - The death of a 15-year-old laborer by drowning while swimming in a lake on his employer's premises during his lunch hour when the lifeguard was not on duty did not arise out of and in the course of his employment where all the evidence showed that deceased was acting in contravention of specific instructions from his employer and that he was engaged in an independent recreational activity totally unrelated to his work of cutting grass. Martin v. Bonclarken Ass'y, 296 N.C. 540, 251 S.E.2d 403 (1979).

XII. DEVIATION, DEPARTURE, AND ABANDONMENT.

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Employee Need Not Be in Exact Spot Designated by Employer. - The Workers' Compensation Act must be liberally construed, and the term "out of the employment" will not preclude recovery for an accident occurring while an employee is not in the exact spot designated by the employer if the employee is at the place he is required to be in the performance of his duties. Howell v. Standard Ice & Fuel Co., 226 N.C. 730, 40 S.E.2d 197 (1946).

Performance of Forbidden Task. - Where an employee is employed solely for a particular job, such as operating a chain saw, and is positively forbidden to perform another job connected with the work, such as operating a tractor, and injury received while performing the forbidden task does not arise out of a hazard of the employment, and is not compensable. Taylor v. Dixon, 251 N.C. 304, 111 S.E.2d 181 (1959).

Violation of Orders. - Disobedience of a direct and specific order by a then present superior breaks the causal relation between the employment and the resulting injury. Conversely, when there is a rule or a prior order and the employee is faced with the choice of remaining idle in compliance with the rule or order or continuing to further his employer's business in contravention of it, no superior being present, the employer who would reap the benefits of the employee's acts if successfully completed should bear the burden of injury resulting from such acts. Under such circumstances, engaging in an activity which is outside the narrow confines of the employee's job description, but which is reasonably related to the accomplishment of the task for which the employee was hired, does not ordinarily constitute a departure from the scope of employment. Hoyle v. Isenhour Brick & Tile Co., 306 N.C. 248, 293 S.E.2d 196 (1982).

Emergency. - Deceased slept on employer's premises. On the night of the accident, some machinery had broken and deceased voluntarily went after a foreman who could fix it. No one had requested deceased to do this, although the evidence showed that he expected to receive pay for his time. He was killed by a passing car while on his way to get the foreman. It was held that the breakdown of machinery could not be classified as sufficient emergency to justify recovery. Davis v. North State Veneer Corp., 200 N.C. 263, 156 S.E. 859 (1931).

Salesman Going Out of His Way to Buy Cigars. - The injured employee was a salesman and collector who was furnished with a car and who had no fixed hours of employment. One evening, while on his way to make a business visit, he deviated less than a mile to buy some cigars, which he regarded as expedient to the purpose of his visit. While going from the drugstore, he was injured. Compensation award was affirmed; the accident arose out of and in the course of the employment. Parrish v. Armour & Co., 200 N.C. 654, 158 S.E. 188 (1931).

Attempt to Get a Job for a Friend. - Claimant was an employee in defendant's mill. Her work ceased at 11 o'clock one day, but she was not permitted to leave until 11:30. During this interval she was injured as she returned from downstairs to see about getting a friend a job. It was held that plaintiff 's mission was "not such a departure from the employer's business . . . that it was not in the course of the employment." Bellamy v. Great Falls Mfg. Co., 200 N.C. 676, 158 S.E. 246 (1931).

Return to Employment after Deviation. - After working steadily for 15 hours, claimant stopped to eat and get a haircut. He then returned to his employer's truck. He was injured in taking the truck to defendant's place of business. It was held that the temporary deviation from the course of duty was not an abandonment. Furthermore, the accident occurred after the employee had resumed his work. Jackson v. Dairymen's Creamery, 202 N.C. 196, 162 S.E. 359 (1932).

Evidence that claimant was not sure that the mill in which he was employed would be operated on the day in question and that he rode to work with another employee, requesting his son to follow in his car to drive him home in case the mill was not operated, and that upon getting to work and ascertaining that the mill would be operated, he put his lunch in the room where he worked and went to a platform at the front of the mill to tell his son not to wait for him, and that he there slipped on ice and fell to his injury, was sufficient to support the finding that the injury resulted from an accident arising out of and in the course of his employment. Gordon v. Thomasville Chair Co., 205 N.C. 739, 172 S.E. 485 (1934).

Accidental Discharge of Gun. - Deceased, a delivery boy, went to employer's storeroom after groceries. He stopped by a private bedroom and was killed by the accidental discharge of a gun which he had found in the room. The evidence was held sufficient to support the Commission's finding that the accident did not arise out of and in the course of the employment. Smith v. S.E. Hauser & Co., 206 N.C. 562, 174 S.E. 455 (1934).

Acting at Request of Superior. - Recovery was denied where deceased was killed while attending a furniture market at the request of his superior. It was shown that the deceased was invited to attend, not for the purpose of learning anything helpful to his work, but to enable him to have a pleasure trip. Hilderbrand v. McDowell Furn. Co., 212 N.C. 100, 193 S.E. 294 (1937).

When plaintiff injured his arm in raising a window to obtain a bottle of milk which he had purchased from defendant's confectionery wagon and set aside to cool, recovery was allowed, the court saying that plaintiff 's conduct did not constitute such a deviation as to deprive him of the benefits of the act. Pickard v. E.M. Holt Plaid Mills, 213 N.C. 28, 195 S.E. 28 (1938).

Drowning After Violation of Orders. - Recovery was denied where a painter dropped his brush in a river and in violation of the foreman's orders went in after it and was drowned. Morrow v. State Hwy. & Pub. Works Comm'n, 214 N.C. 835, 199 S.E. 265 (1938).

Fall After Resting on Plank. - The findings of fact of the Industrial Commission, supported by the evidence, were to the effect that deceased employee was a night watchman, that his duties were to make periodic inspection and to attend the furnaces and to get up steam, that on the night in question he procured his son to help him, that he instructed his son to do certain of his duties in the boiler room, that he placed a small box and plank on a walkway eight or nine feet high, with one end of the plank resting on the box, and lay down on the plank, that his son called him in time to make a periodic inspection some 30 minutes later, and that in getting up from his recumbent position, while his son was engaged in the performance of the employee's active duties in the boiler room, the employee fell from the walkway and was fatally injured. The facts did not compel the conclusion, as a matter of law, that at the time of injury the employee had not deviated from or abandoned his employment, and therefore the award of the Industrial Commission denying compensation was upheld. Stallcup v. Carolina Wood Turning Co., 217 N.C. 302, 7 S.E.2d 550 (1940).

Riding Conveyor. - Deceased was killed in rising from basement to ground floor on a mechanical crate conveyor. Steps were provided by the employer, and none of the employees rode the conveyor when the foreman was around. It was held that the denial of compensation was proper in that deceased stepped aside from the sphere of his employment in getting on the conveyor. Teague v. Atlantic Co., 213 N.C. 546, 196 S.E. 875 (1938).

The fact that deceased was not actually engaged in the performance of his duties as watchman at the time he was pushed over and injured unintentionally by a fellow employee in a hurry did not perforce defeat his claim for compensation under this Act, where both employees had checked in for work and were on the premises and where they had a right to be. Brown v. Carolina Aluminum Co., 224 N.C. 766, 32 S.E.2d 320 (1944).

Selection of More Hazardous Route. - The evidence tended to show that claimant, in the performance of his duty to go to a guard tower outside of a high wire fence, elected to climb over the fence rather than go around by the gate, which would require approximately 200 yards of travel, and was injured when he jumped from the top of the fence to avoid falling therefrom. It was held that the evidence sustained the award of compensation, and the contention that claimant climbed the fence for his own convenience rather than as a part of his duties was untenable, since the mere fact that an employee selected the more hazardous route in the performance of his duties does not defeat recovery. Hartley v. North Carolina Prison Dep't, 258 N.C. 287, 128 S.E.2d 598 (1962).

Injury On the Way to Move Truck. - Where plaintiff (mayor of town) set out on bike to move an improperly parked city truck, but first stopped at his place of business and consumed an alcoholic beverage, then resumed his errand and was subsequently injured in a bicycle accident, his injury arose out of and in the course of his employment. Creel v. Town of Dover, 126 N.C. App. 547, 486 S.E.2d 478 (1997).

Effect of Intoxication. - The relevant question in determining whether intoxication operates to bar benefits to a claimant under the Act is not whether the claimant was intoxicated at the time of the accident, but whether the claimant's intoxication was more probably than not a cause in fact of the accident. Creel v. Town of Dover, 126 N.C. App. 547, 486 S.E.2d 478 (1997).

XIII. AGGRAVATION OF EXISTING CONDITION OR INFIRMITY.

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Injury Aggravating Preexisting Infirmity or Disease Is Compensable. - When an employee afflicted with a preexisting disease or infirmity suffers a personal injury by accident arising out of and in the course of his employment, and such injury materially accelerates or aggravates the preexisting disease or infirmity and thus proximately contributes to the death or disability of the employee, the injury is compensable even if it would not have caused death or disability to a normal person. Anderson v. Northwestern Motor Co., 233 N.C. 372, 64 S.E.2d 265 (1951).

If the employee by reason of constitutional infirmities is predisposed to sustain injuries while engaged in labor, nevertheless the leniency and humanity of the law permit him to recover compensation if the physical aspects of the employment contribute in some reasonable degree to bring about or intensify the condition which renders him susceptible to such accident and consequent injury. Moore v. J.P. Stevens & Co., 47 N.C. App. 744, 269 S.E.2d 159, cert. denied, 301 N.C. 401, 274 S.E.2d 226 (1980); Walston v. Burlington Indus., 49 N.C. App. 301, 271 S.E.2d 516 (1980), rev'd on other grounds, 304 N.C. 670, 285 S.E.2d 822 (1982); Hansel v. Sherman Textiles, 304 N.C. 44, 283 S.E.2d 101 (1981).

Employment Need Not Be Sole Causative Force. - In workers' compensation actions the rule of causation is that where the right to recover is based on injury by accident, the employment need not be the sole causative force to render an injury compensable. Hansel v. Sherman Textiles, 304 N.C. 44, 283 S.E.2d 101 (1981); Kendrick v. City of Greensboro, 80 N.C. App. 183, 341 S.E.2d 122, cert. denied, 317 N.C. 335, 346 S.E.2d 500 (1986).

Where the accident and resultant injury arise out of both the idiopathic condition of the worker and hazards incident to the employment, the employer is liable. But not so where the idiopathic condition is the sole cause of the injury. Norris v. Kivettco, Inc., 58 N.C. App. 376, 293 S.E.2d 594 (1982).

Relative Contributions of Accident and Preexisting Condition Not Weighed. - An employer accepts an employee has he is, and if a compensable injury precipitates a latent physical condition, such as heart disease, cancer, back weakness, or the like, the entire disability is compensable; no attempt is made to weigh the relative contribution of the accident and the preexisting condition. Anderson v. A.M. Smyre Mfg. Co., 54 N.C. App. 337, 283 S.E.2d 433 (1981).

Aggravation of Heart Condition. - Findings to the effect that employee suffered an injury arising out of and in the course of the employment, which injury aggravated a preexisting heart condition and caused death, would support an award for compensation and burial expenses. Wyatt v. Sharp, 239 N.C. 655, 80 S.E.2d 762 (1954).

Aggravation of Carpal Tunnel Syndrome. - Employee's carpal tunnel syndrome was a compensable injury, even though there was no direct evidence of initial causation because a doctor confirmed another doctor's diagnosis, which was based on test results and was not reliant on facts not in evidence or the maxim post hoc ergo propter hoc. The employee's carpal tunnel syndrome was compensable even if it was preexisting; it was aggravated by a work injury. Raper v. Mansfield Sys., 189 N.C. App. 277, 657 S.E.2d 899 (2008).

Evidence Held Insufficient to Show Death as Natural Result of Accident. - Deceased broke his leg from a fall on the job. He was then 65 and had arteriosclerosis, arthritis, and heart trouble. While laid up he suffered with a bladder ailment which two attending physicians thought was caused or aggravated by his inactivity in bed. Over seven months later he died from the heart ailment and arthritis, which a different attending physician thought possibly or even probably would have been aggravated by a bladder condition such as reported by the physicians who first looked after him but of which the witness had no knowledge. This physician thought the accident to have been only a remote cause of his death. It was held that the evidence was insufficient to support the Commission's finding that deceased died while totally disabled from the accident and as a natural result of it. Gilmore v. Hoke County Bd. of Educ., 222 N.C. 358, 23 S.E.2d 292 (1942).

Sufficient Evidence. - North Carolina Industrial Commission's finding that a workers' compensation claimant's shoulder injury, which occurred when a coworker grabbed her by her arm and spun her around at work, arose out of and in the course of her employment, pursuant to G.S. 97-2(6) and aggravated a pre-existing shoulder condition was supported by sufficient evidence. This finding supported the Commission's conclusion that the claimant's injury by accident exacerbated her pre-existing condition and, thus, entitled her to temporary total disability compensation. Davis v. Columbus County Schs., 175 N.C. App. 95, 622 S.E.2d 671 (2005).

Injury Caused by Previous Compensable Injury. - Plaintiff 's compensable spinal injury which caused permanent paralysis of his legs was a proximate cause of burns received by plaintiff on the lower portions of his body when a cigarette he had been smoking set the clothing on his bed on fire. Plaintiff suffered the burns because of a loss of feeling and sensitivity in the lower portions of his body as a result of the original compensable accident, and the act of leaving the cigarette where it could set fire to the bedclothing was insufficient to break the chain of causation between the original injury and the burns sustained. Starr v. Charlotte Paper Co., 8 N.C. App. 604, 175 S.E.2d 342 (1970).

Back Injury Following Previous Back Surgery. - Under the evidence the Commission could determine that plaintiff 's work-related back injury and the surgery which followed contributed to his disability in a reasonable degree, regardless of the fact that he had two previous laminectomies, and that, as a result, plaintiff was entitled to compensation. Kendrick v. City of Greensboro, 80 N.C. App. 183, 341 S.E.2d 122, cert. denied, 317 N.C. 335, 346 S.E.2d 500 (1986).

Mere Speculation was Insufficient to Support Finding of Aggravation of Kyphotic Deformity. - Where employee sustained an injury to his back as a direct result of a specific traumatic incident arising out of and in the course of employment, the finding that the employee's kyphotic deformity was aggravated by the work-related injury was vacated because the testimony of a neurosurgeon that indicated the condition "likely" was aggravated, was insufficient to support such a finding as the opinion was mere speculation. Cannon v. Goodyear Tire & Rubber Co., 171 N.C. App. 254, 614 S.E.2d 440 (2005).

Compensation for Entire Resulting Disability. - When a preexisting, nondisabling, non-job-related condition is aggravated or accelerated by an accidental injury arising out of and in the course of employment or by an occupational disease so that disability results, then the employer must compensate the employee for the entire resulting disability, even though it would not have disabled a normal person to that extent. In such a case, where an injury has aggravated an existing condition and thus proximately caused the incapacity, the relative contributions of the accident and the preexisting condition will not be weighed. Wilder v. Barbour Boat Works, 84 N.C. App. 188, 352 S.E.2d 690 (1987).

While the case law interpreting the specific traumatic incident provision of G.S. 97-2(6) requires the plaintiff to prove an injury at a cognizable time, this does not compel the plaintiff to allege the specific hour or day of the injury; following a work-related injury, was not an intervening cause that precluded compensation for aggravation of the employee's work-related injury since the accident was not the fault of the employee. Cannon v. Goodyear Tire & Rubber Co., 171 N.C. App. 254, 614 S.E.2d 440 (2005).

XIV. INJURY FROM DISEASE.

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G.S. 97-52 et seq. Constitute Implied Amendment to This Section. - The Occupational Disease Act, G.S. 97-52 et seq., constitutes an implied amendment to this section. Under that act, specified occupational diseases are compensable. In adopting this amendment, the legislature was not making provision for compensation for injuries by accident as that term is ordinarily understood. Provision for that type of injury had already been made in the original act. It was considering those diseases the causative origin of which is occupational and designating those which are to be deemed within the new and extended definition of "injury by accident" which it was then providing. Henry v. Lawrence Leather Co., 234 N.C. 126, 66 S.E.2d 693 (1951).

But Compensation for Disease Resulting from Accident Is Not Precluded by G.S. 97-52 et seq. - G.S. 97-52, providing that only the occupational diseases therein specified should be compensable, relates only to occupational diseases, which are those resulting from long and continued exposure to risks and conditions inherent and usual in the nature of the employment, and this section does not preclude compensation for a disease not inherent in or incident to the nature of the employment when it results from an accident arising out of and in the course of the employment. MacRae v. Unemployment Comp. Comm'n, 217 N.C. 769, 9 S.E.2d 595 (1940).

Employer is responsible for any disease resulting naturally and unavoidably from an accident. Williams v. Thompson, 200 N.C. 463, 157 S.E. 430 (1931), where plaintiff injured his eye and later unavoidably contracted gonorrhea ophthalmia in the injured organ; Clark v. Carolina Cotton & Woolen Mills, 204 N.C. 529, 168 S.E. 816 (1933), in which evidence was sufficient to support the finding that plaintiff 's fall resulted in myelitis. See also Anderson v. Century Data Sys., Inc., 71 N.C. App. 540, 322 S.E.2d 638 (1984). And see 10 N.C.L. Rev. 407 (1932).

Apportionment Between Incapacitating Disease and Other Factors Not Proper. - Where an industrial disease renders an employee actually incapacitated to earn any wages, the employer may not ask that a portion of the disability be charged to the employee's advanced age and poor learning on the grounds that if it were not for these factors he might still retain some earning capacity. Anderson v. A.M. Smyre Mfg. Co., 54 N.C. App. 337, 283 S.E.2d 433 (1981).

Ordinarily, heart disease is not an injury and death therefrom is not ordinarily compensable. West v. North Carolina Dep't of Conservation & Dev., 229 N.C. 232, 49 S.E.2d 398 (1948); Lewter v. Abercrombie Enters., Inc., 240 N.C. 399, 82 S.E.2d 410 (1954).

In heart cases the decisions require a showing that the exertion was in some way unusual or extraordinary. Lewter v. Abercrombie Enters., Inc., 240 N.C. 399, 82 S.E.2d 410 (1954).

Dilatation of the Heart Due to Unusual Exertion. - A policeman 56 years of age, who was in good health and without any physical defect or disease, arrested a young man, who, because of intoxication, violently and viciously resisted, and after the officer subdued him and transported him to the jail, the officer and another had to carry the prisoner up three flights of stairs because the elevator was out of order. The officer collapsed with acute dilatation of the heart due to the unusual exertion. This injury to the heart muscle was chronic and progressive and the policeman suffered a fatal heart attack some 10 months thereafter. It was held that the evidence warranted the conclusion that the injury to the heart resulted not from inherent weakness or disease but from an unusual and unexpected happening, and that therefore death resulted from an accident within the meaning of this section. Gabriel v. Town of Newton, 227 N.C. 314, 42 S.E.2d 96 (1947). See Lewter v. Abercrombie Enters., Inc., 240 N.C. 399, 82 S.E.2d 410 (1954).

Coronary Occlusion. - Evidence that plaintiff suffered a coronary occlusion while rolling a heavy rope net in the course of his employment, with medical expert testimony that the exercise could not be the cause of the condition, although the attack might have been accelerated or precipitated by the exertion, was insufficient to sustain a finding that the coronary occlusion and resulting myocardial infarction arose out of and in the course of the employment. Bellamy v. Morace Stevedoring Co., 258 N.C. 327, 128 S.E.2d 395 (1962).

Accident and Exposure as Contributing to Death from Acute Nephritis. - The evidence before the Industrial Commission tended to show that the deceased employee, for whose death compensation was sought, had been in exceptionally good health up to the time of the accident, that he fell from a platform, breaking his leg, and lay where he fell for about half an hour, exposed to the cool weather, that he was then discovered and carried into the office, where he had to wait some two hours for medical attention. There was expert testimony to the effect that the exposure was a contributing factor causing acute nephritis resulting in death, and that the accident and exposure accelerated the employee's death. It was held that the evidence was sufficient to support the finding of the Industrial Commission that the disease resulted naturally and unavoidably from the accident. Doggett v. South Atl. Whse. Co., 212 N.C. 599, 194 S.E. 111 (1937).

Hemorrhagic Pachymeningitis Resulting from Blow to Head. - Plaintiff, while about his employer's business, was struck on the back of the head by hides which he was jerking from hooks about 10 feet from the floor, and had to stop work for a very short time. As a result of the blow plaintiff contracted hemorrhagic pachymeningitis which caused his total disability. This was held to be an injury by accident, arising out of and in the course of his employment within this section. Eller v. Lawrence Leather Co., 222 N.C. 23, 21 S.E.2d 809 (1942), petition for rehearing allowed and judgment modified on other grounds, 222 N.C. 604, 24 S.E.2d 244 (1943).

Gonorrhea Ophthalmia Resulting from Accident. - Plaintiff, a truck driver, sustained an injury to his eye while cleaning a carburetor. The injury irritated his eye and resulted in ulcer. Seven days after the accident the plaintiff was treated by a doctor, who gave the plaintiff some lotion to use. He visited the doctor three times. Then gonorrhea ophthalmia showed up, which was on the thirteenth day after the accident. As a result of the infection the plaintiff lost one eye and suffered a partial loss of use in the other eye. Compensation was allowed. Williams v. Thompson, 200 N.C. 463, 157 S.E. 430 (1931). See 8 N.C.L. Rev. 421 (1930).

Contraction of Tuberculosis from Coworker. - Tuberculosis contracted from exposure to the cough of one actively infected who was seated in close proximity at work is not an occupational disease, but may be found to have resulted naturally and avoidably from an accident. MacRae v. Unemployment Comp. Comm'n, 217 N.C. 769, 9 S.E.2d 595 (1940). And see 10 N.C.L. Rev. 407 (1932).

Employee Contracting Pneumonia. - Where an employee got wet in washing certain machines, although furnished with special clothes, and while removing ashes, was in the sunshine and open air, and the sudden change in temperature caused him to contract pneumonia, from which he died, it was held that the death was not the result of an accidental injury. Slade v. Willis Hosiery Mills, 209 N.C. 823, 184 S.E. 844 (1936).

Asbestosis. - In an action brought at common law on the ground that, due to defendant's negligence over a period of months, plaintiff had contracted pulmonary asbestosis, the court held that since defendant was negligent, plaintiff 's injury was not incidental to his employment and, furthermore, was not deprived of its accidental character by the mere fact of its requiring several months to develop. Accordingly, recovery was denied plaintiff in his suit at common law because the injury was declared to be covered by the act. McNeely v. Carolina Asbestos Co., 206 N.C. 568, 174 S.E. 509 (1934). See also Johnson v. Hughes & S. Dairies, Inc., 207 N.C. 544, 177 S.E. 632 (1935).

Where claimant worked in an asbestos plant for six or seven years, and a dust removing system was not installed until about a year before claimant's discharge, at which time a medical examination disclosed that he was suffering from asbestosis, the evidence showed that the injury was the result of an occupational disease not compensable under the act prior to its amendment by Laws 1935, c. 123. Swink v. Carolina Asbestos Co., 210 N.C. 303, 186 S.E. 258 (1936). See G.S. 97-52 and G.S. 97-76.

Silicosis. - The clear intent of G.S. 97-61.6 to provide compensation for death occurring within 350 weeks from the date of last exposure to silicosis if the employee was at the time of death receiving compensation for disablement due to silicosis, even though the death does not result from silicosis, must be given effect, notwithstanding subdivisions (6) and (10) of this section and G.S. 97-52, since the specific provisions relating to silicosis, which were enacted because of the peculiar course of the disease, must be construed as an exception to the general tenor of the compensation act to provide compensation for death only if it results from an accident arising out of and in the course of the employment. Davis v. North Carolina Granite Corp., 259 N.C. 672, 131 S.E.2d 335 (1963).

Phlebitis, Arthritis and Severe Body Pain Resulting from Primary Injury. - The complications of phlebitis, arthritis and severe body pain, whether the complications were considered subsequent injuries or diseases, were compensable under the act where they were the natural and unavoidable result of the primary injury to plaintiff 's hip and upper leg. Roper v. J.P. Stevens & Co., 65 N.C. App. 69, 308 S.E.2d 485 (1983), cert. denied, 310 N.C. 309, 312 S.E.2d 652 (1984).

XV. HERNIA.

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Editor's Note. - Most of the cases cited below were decided prior to the 1987 amendment to subdivision (18) of this section, which deleted paragraph c thereof, regarding accompaniment of the hernia with pain, and added the second sentence of paragraph d thereof.

Subdivision (18) of this section is given a liberal construction, with primary consideration being given to compensation for the injured employee. McMahan v. Hickey's Supermarket, 24 N.C. App. 113, 210 S.E.2d 214 (1974).

Legislative Use of the Term. - The medical condition known as "hernia" is not specifically defined in either the Worker's Compensation Act or in the case law. Although the Court of Appeals has declined to define the term hernia, it has noted that the legislature's use of the term hernia in conjunction with the word rupture in the statute, "hernia or rupture," seems to indicate that something less than full extension through the organ wall is contemplated. Pernell v. Piedmont Circuits, 104 N.C. App. 289, 409 S.E.2d 618 (1991), cert. denied, 330 N.C. 613, 412 S.E.2d 87 (1992).

Failure to Prove Any Element of Subdivision (18) Nullifies Claim. - Failure to prove the existence of any one of the five elements of subdivision (18) of this section nullifies plaintiff 's claim. Lutes v. Export Leaf Tobacco Co., 19 N.C. App. 380, 198 S.E.2d 746 (1973).

To recover compensation for a hernia, a plaintiff must prove the existence of each of the five elements of subdivision (18). The absence of any one of them will result in the denial of compensation. Long v. Morganton Dyeing & Finishing Co., 84 N.C. App. 81, 351 S.E.2d 767, rev'd on other grounds, 321 N.C. 82, 361 S.E.2d 575 (1987).

This section, in effect, defines what constitutes a causal connection for purposes of hernia injury, and when any one of the section's elements is not proven, a causal connection does not exist. This is true even if the Commission is otherwise convinced that the hernia was caused by an accident arising out of and in the course of employment. Long v. Morganton Dyeing & Finishing Co., 84 N.C. App. 81, 351 S.E.2d 767, rev'd on other grounds, 321 N.C. 82, 361 S.E.2d 575 (1987).

Hernia Must Result from Accident. - In every case it must definitely appear that the hernia resulted immediately from an accident. Ussery v. Erlanger Cotton Mills, 201 N.C. 688, 161 S.E. 307 (1931).

Unusual Conditions Required. - In cases involving back injury or hernia, the elements constituting accident are the interruption of the routine of work and the introduction thereby of unusual conditions likely to result in unexpected consequences. Pardue v. Blackburn Bros. Oil & Tire Co., 260 N.C. 413, 132 S.E.2d 747 (1963).

This section requires an interruption of the usual work routine or the introduction of some new circumstance not a part of the usual work routine before a compensable injury arises in a hernia case. Gray v. Durham Transf. & Storage, Inc., 10 N.C. App. 668, 179 S.E.2d 883 (1971).

A back injury or hernia suffered by an employee does not arise by accident if the employee at the time was merely carrying out his usual and customary duties in the usual way. Faires v. McDevitt & St. Co., 251 N.C. 194, 110 S.E.2d 898 (1959); Pardue v. Blackburn Bros. Oil & Tire Co., 260 N.C. 413, 132 S.E.2d 747 (1963); Gray v. Durham Transf. & Storage, Inc., 10 N.C. App. 668, 179 S.E.2d 883 (1971); Southards v. Byrd Motor Lines, 11 N.C. App. 583, 181 S.E.2d 811 (1971); Beamon v. Stop & Shop Grocery, 27 N.C. App. 553, 219 S.E.2d 508 (1975); Curtis v. Carolina Mechanical Sys., 36 N.C. App. 621, 244 S.E.2d 690 (1978).

As to requirement of unusual circumstances or exertion, see Moore v. Engineering & Sales Co., 214 N.C. 424, 199 S.E. 605 (1938).

Onset of Pain. - The pain that prior to the 1987 amendment to this section had to accompany an injury resulting in a hernia to render the injury compensable under former paragraph (18)c did not have to occur simultaneously with the sustaining of the injury. Long v. Morgantown Dyeing & Finishing Co., 321 N.C. 82, 361 S.E.2d 575 (1987).

Hernia Not Discovered Until Some Days After Commencement of Pain. - It is sufficient for the Commission to find the facts required under this section and award compensation if the pain immediately followed the accident, even if the hernia was not discovered until diagnosis by a physician some days thereafter. Ussery v. Erlanger Cotton Mills, 201 N.C. 688, 161 S.E. 307 (1931).

Findings of Commission Binding on Appeal. - Where the Commission finds and concludes that there was no causal connection between "accident" and hernia, the findings of the Commission when supported by any competent evidence are binding on appeal. Lutes v. Export Leaf Tobacco Co., 19 N.C. App. 380, 198 S.E.2d 746 (1973).

Sudden Appearance of Lesion and Enlargement of Inguinal Ring. - Plaintiff was a plumbing foreman. He had been instructed to lay off his workmen and to finish a job with one other employee. In helping the other employee lift a heavy pipe, he felt a pain in his abdomen. He consulted a physician who found an enlargement of the left inguinal ring and a bulge but no protrusion. The doctor strapped plaintiff and gave him a truss. Eighteen days later an actual hernia was found. An award granting compensation for hernia was affirmed, the court saying that the accident consisted of the plaintiff 's having to do unusual work and that the lesion and enlargement of the inguinal ring, from which the fully developed hernia naturally comes, did result immediately. Moore v. Engineering & Sales Co., 214 N.C. 424, 199 S.E. 605 (1938).

Evidence Held to Justify Finding Compensable Hernia. - Claimant's injury resulted from an accident within the contemplation of the act and the evidence justified the Industrial Commission in finding that hernia appeared "suddenly" within the meaning of this section. Moore v. Engineering & Sales Co., 214 N.C. 424, 199 S.E. 605 (1938).

Claimant, in delivering milk to a cafe, had to lift a box of chipped ice from the storage box. On this occasion he felt a sharp abdominal pain as he lifted and "he got sick," but after a short rest, he worked till noon, when he reported that he had strained his side and went home. Hernia appeared a few days later. The employer contended that the injury was not caused by accident but only by the doing of regular work in the regular way. It was held that the sudden and unexpected rupture was not a natural and probable consequence of the work, but an accidental injury and compensable. Smith v. Cabarrus Creamery Co., 217 N.C. 468, 8 S.E.2d 231 (1940).

Evidence held sufficient to sustain the finding of the Industrial Commission that the hernia was compensable under subdivision (18) of this section. Rice v. Thomasville Chair Co., 238 N.C. 121, 76 S.E.2d 311 (1953).

Evidence tending to show that the employee was a carpenter and customarily did the work of a carpenter, that in removing concrete forms carpenters usually "stripped" the forms and laborers lifted and removed them, that on the occasion in question other carpenters and helpers had been withdrawn from the job, that the lifting of the forms was usually and customarily done by two men, and that while the employee was attempting to lift one of the forms by himself, requiring extreme exertion and strain in a confined and difficult place of work, he felt a sharp pain which continued until he had received medical treatment for the hernia, was sufficient to support a finding of the Industrial Commission that the employee suffered an injury by accident arising out of and in the course of his employment, resulting in the hernia. Faires v. McDevitt & St. Co., 251 N.C. 194, 110 S.E.2d 898 (1959).

Evidence Held Not to Show Compensable Hernia. - Where the evidence showed that a hernia occurred while the employee was performing his work in the customary and usual manner, and there was no evidence of any unusual condition or any slipping or falling by the employee, there was no evidence to justify a finding that the hernia resulted from an accident, and an award of compensation would be reversed. Hensley v. Farmers Fed'n Coop., 246 N.C. 274, 98 S.E.2d 289 (1957); Holt v. Cannon Mills Co., 249 N.C. 215, 105 S.E.2d 614 (1958).

The mere fact that plaintiff was handling a different commodity than usual, without more, and that the weather was hot, were not enough to satisfy the requirement of an "interruption of the work routine and the introduction of unusual conditions likely to result in unpredicted consequences." Nor was the mere fact that plaintiff was in a hurry. Southards v. Byrd Motor Lines, 11 N.C. App. 583, 181 S.E.2d 811 (1971).

Speculative testimony of physicians before the North Carolina Industrial Commission was insufficient to support the conclusion that the employee's hernia injury was caused by his work related activity. Hodgin v. Hodgin, 159 N.C. App. 635, 583 S.E.2d 362 (2003), cert. denied, 357 N.C. 578, 589 S.E.2d 126 (2003).

Industrial commission properly denied compensability pursuant to G.S. 97-2 for three hernias suffered after a worker left his employment; the subject hernias were not recurrences of two earlier compensable hernias, but instead were new non-work injuries. Bondurant v. Estes Express Lines, Inc., 167 N.C. App. 259, 606 S.E.2d 345 (2004).

XVI. ILLUSTRATIVE CASES.

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A. FALLS.

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A fall itself is usually regarded as a compensable accident. Cole v. Guilford County, 259 N.C. 724, 131 S.E.2d 308 (1963); Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865 (1963); Hollar v. Montclair Furn. Co., 48 N.C. App. 489, 269 S.E.2d 667 (1980).

There is a clear line of distinction in fall cases, which holds that: (1) where the injury is clearly attributable to an idiopathic condition of the employee, with no other factors intervening or operating to cause or contribute to the injury, no award should be made; (2) where the injury is associated with any risk attributable to the employment, compensation should be allowed, even though the employee may have suffered from an idiopathic condition which precipitated or contributed to the injury. Hollar v. Montclair Furn. Co., 48 N.C. App. 489, 269 S.E.2d 667 (1980).

When Fall Constitutes Compensable Accident. - It has been held that a fall is an accident, and where it is not shown to have resulted from the employee's physical infirmity or from external force unconnected with the employment, it may be found by the Commission to arise out of the employment. No affirmative evidence as to what caused the fall is necessary to support the finding. Here the employee, reaching up to a rack in the course of her work, lost her balance and fell. Robbins v. Bossong Hosiery Mills, 220 N.C. 246, 17 S.E.2d 20 (1941), involving an employee who lost her balance and fell while reaching up to a rack in the course of her work, and distinguishing cases of heart failure, dizzy spells, etc.

The rule that compensation will be awarded in unexplained-fall cases is applied in North Carolina. Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865 (1963).

The effects of a fall are compensable if the fall results from an idiopathic cause and the employment has placed the employee in a position which increases the dangerous effects of the fall. Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865 (1963).

When Injury From Fall Is Not Compensable. - If a fall and the resultant injury arise solely from an idiopathic cause, or a cause independent of the employment, the injury is not compensable. Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865 (1963).

The fall itself is the unusual, unforeseen occurrence which is the accident. Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865 (1963).

Hence, Evidence of Unusual Occurrence Is Unnecessary. - To prove an accident in industrial injury cases, it is not essential that there be evidence of any unusual or untoward condition or occurrence causing a fall which produces injury. Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865 (1963).

Slipping on Fruit. - Plaintiff got into his car to leave defendant's plant. A night watchman beckoned to him, and in getting out of the car to learn what the watchman wanted, plaintiff slipped on a fruit peeling. Recovery was denied, the court saying, "When an injury cannot fairly be traced to the employment as a contributing proximate cause or comes from a hazard to which the worker would have been equally exposed apart from the employment, or from a hazard common to others, it does not arise out of the employment." Lockey v. Cohen, Goldman & Co., 213 N.C. 356, 196 S.E. 342 (1938).

Circumstances Permitting Inference That Fall Arose Out of and in Course of Employment. - Employee was suffering from a disease which subjected him to fainting spells. While in the men's washroom he called to a person in an adjacent booth, "Please help me to the window, I am about to faint." The floor was of tile and very slick when wet. It was washed each morning. The employee was afterwards found on the roof of the adjacent building, directly beneath the open windows. The circumstances permit the inference that employee slipped and fell to his death. Rewis v. New York Life Ins. Co., 226 N.C. 325, 38 S.E.2d 97 (1946). See also DeVine v. Dave Steel Co., 227 N.C. 684, 44 S.E.2d 77 (1947), where the employee was subject to fainting spells, but it was not shown that the fatal fall resulted from such a spell.

Injuries sustained in a fall in which the employee's leg unexplainedly gave way were held to be attributable solely to the employee's idiopathic condition, and thus recovery was denied. Cole v. Guilford County, 259 N.C. 724, 131 S.E.2d 308 (1963).

Injury Caused by Epileptic Seizure. - The evidence tended to show that plaintiff employee was subject to epileptic fits, that while driving the employer's truck in the course of his employment he felt a seizure approaching, stopped the truck on the side of the road, opened the door and lay down on the seat of the truck with his head on the seat opposite the steering wheel and his feet hanging out of the truck, that he immediately suffered an epileptic seizure causing him to lose consciousness, and that when he "came to" his body was on the outside of the truck and his hands on the steering wheel. The expert medical testimony was to the effect that the employee had suffered broken bones caused by the fall from the seat of the truck and that the fall resulted from the epileptic seizure. It was held that the evidence disclosed that the sole cause of the employee's moving from a position of safety to his injury was the epileptic seizure, and therefore the fall was independent of, unrelated to, and apart from the employment, and the evidence could not support a finding of the Industrial Commission that the injury resulted from an accident arising out of the employment. Vause v. Vause Farm Equip. Co., 233 N.C. 88, 63 S.E.2d 173 (1951).

Injury in Public Street During Fatigue Break. - Claimant's injury by accident did not arise out of her employment where claimant left her employer's premises during a fatigue break and walked down a public street to where oil tanks for the use of defendant employer were being buried in the street and there stumbled over a cement block and fell in the street, injuring her hip and back. Smith v. Dacotah Cotton Mills, Inc., 31 N.C. App. 687, 230 S.E.2d 772 (1976).

Unexplained Injury Where Performance of Duties Was Only Active Force Involved. - Where the cause of plaintiff 's fall was unknown, but the only active force involved was plaintiff 's exertion in the performance of his duties, the court gave effect to the liberal intent of the law by finding the accident to have arisen out of plaintiff 's employment. Slizewski v. Int'l Seafood, Inc., 46 N.C. App. 228, 264 S.E.2d 810 (1980).

Findings supported the conclusion that death was not accelerated or aggravated by the injury; there was ample evidence presented and findings made regarding the rupture of decedent's aneurysm prior to the collision, and although there was evidence that the windshield of the car in which decedent was traveling was broken, there was no evidence nor finding that the cause of the break was contact with decedent's head. Strickland v. Central Serv. Motor Co., 94 N.C. App. 79, 379 S.E.2d 645, cert. denied, 325 N.C. 276, 384 S.E.2d 530 (1989).

Conversion Hysteria. - The Commission's finding that accidental fall in which employee was involved did not cause plaintiff 's subsequent paralysis, but that his condition represented "conversion hysteria" due to unresolved emotional conflicts was supported by the evidence, and the fact that employee's fall was a "precipitating" or "triggering" event for his conversion disorder did not, without more, establish causation. Brewington v. Rigsbee Auto Parts, 69 N.C. App. 168, 316 S.E.2d 336 (1984).

Injury Held Compensible. - Employee was entitled to receive disability benefits because the evidence showed that the employee's capacity to earn was causally related to the employee's physical restrictions resulting from a hip injury, and that the employee had made a reasonable effort to obtain employment. Even if the employee had been terminated due to an economic downturn, it did not preclude a finding that the employee was disabled and eligible for benefits. Graham v. Masonry Reinforcing Corp. of Am., 188 N.C. App. 755, 656 S.E.2d 676 (2008).

B. STORM AND WEATHER-RELATED INJURIES.

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Where the employment subjects a worker to a special or particular hazard from the elements, such as excessive heat or cold, likely to produce sunstroke or freezing, death or disability resulting from such cause usually comes within the purview of the compensation acts. On the other hand, where the employee is not by reason of his work peculiarly exposed to injury by sunstroke or freezing, such injuries are not ordinarily compensable. The test is whether the employment subjects the worker to a greater hazard or risk than that to which he otherwise would be exposed. Fields v. Tompkins-Johnston Plumbing Co., 224 N.C. 841, 32 S.E.2d 623 (1945).

Where a bus driver was compelled to change a tire on defendant's bus during very cold weather and he contracted pneumonia, the Commission's ruling denying recovery was affirmed. Carter v. Carolina Coach Co., 208 N.C. 849, 182 S.E. 493 (1935).

Tornado. - Claimant was in the plant of his employer when it was struck by a tornado and was injured as a result of the partial collapse of the building. It was held that the accident resulting in the injury did not arise out of the employment, there being no causal relation between the employment and the accident. Walker v. Wilkins, 212 N.C. 627, 194 S.E. 89 (1937); Marsh v. Bennett College for Women, 212 N.C. 662, 194 S.E. 303 (1937).

Death from Bite of Mad Dog. - Where intestate died of hydrophobia resulting from a dog bite received by him while engaged in his duties as attendant in a filling station, it was held that claimant was not entitled to compensation for the employee's death, since there was no causal connection between the employment and the bite of a dog running at large, and the accident was not from a risk incidental to the employment. Plemmons v. White's Serv., 213 N.C. 148, 195 S.E. 370 (1938).

Heat Exhaustion or Sunstroke. - Determination of the Industrial Commission that employee's death resulting from heat exhaustion or sunstroke was an injury which arose out of and in course of employment was supported by the evidence, where such evidence showed that the general outside temperature was 104~ Fahrenheit, and employee's work required that he be in close proximity to melted lead which increased the temperature in the partly finished building where employee was working on day of his death. Fields v. Tompkins-Johnston Plumbing Co., 224 N.C. 841, 32 S.E.2d 623 (1945).

Lightning. - Where a carpenter, caught in a storm while working, went to a nearby house under construction by his employer to get out of the rain and, while standing near a window talking with his employer and wearing wet clothes, including a carpenter's nail apron with nails therein, was killed by lightning, all damage to the clothes and marks on the body being from the waist down, with the nail apron knocked off, a hole burned in it, and a majority of the nails in it fused, the evidence was sufficient to support the conclusion that the circumstances of the carpenter's employment peculiarly exposed him to the risk of injury from lightning greater than that of others in the community, and to sustain an award of compensation. Pope v. Goodson, 249 N.C. 690, 107 S.E.2d 524 (1959).

C. STREET AND HIGHWAY ACCIDENTS.

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When Highway Accidents Are Compensable. - An injury caused by a highway accident is compensable if the employee at the time of the accident is acting in the course of his employment and in the performance of some duty incident thereto. Hardy v. Small, 246 N.C. 581, 99 S.E.2d 862 (1957), involving a farm employee killed while crossing highway on return from barn.

Injury Occurring on Highway Close to Employer's Premises. - North Carolina has allowed compensation where the injury occurred on the highway close to employer's premises and the employee was using the only means of ingress and egress to and from the work he was to perform, saying that the hazards of that route become the hazards of the employment. Williams v. Brunswick County Bd. of Educ., 1 N.C. App. 89, 160 S.E.2d 102 (1968).

Cemetery Keeper Crossing Street on Way to Funeral Home. - When as an incident of his employment as cemetery keeper and in the performance of a duty connected therewith, as shown by the established custom, the decedent crossed the street en route to a funeral home, the hazard of the journey could properly be regarded as within the scope of the Workers' Compensation Act. Hinkle v. City of Lexington, 239 N.C. 105, 79 S.E.2d 220 (1953).

Cemetery Caretaker Making Rounds of Funeral Homes. - Where a cemetery caretaker employed by the city, who had no telephone, regularly and daily made rounds of the funeral homes at night to determine what graves needed to be dug the next day, injury sustained by him when he was hit by an automobile while engaged in making these rounds was compensable. The employer was said to have consented to the making of the trip because of the established custom of the caretaker. Williams v. Brunswick County Bd. of Educ., 1 N.C. App. 89, 160 S.E.2d 102 (1968).

Off-Premises Accident Hours After Work. - Recovery would be denied for injury sustained in a highway accident, away from the premises, some five hours after the employee left work. Harless v. Flynn, 1 N.C. App. 448, 162 S.E.2d 47 (1968).

Teacher Killed in Accident at End of School Day. - In an action to recover death benefits for the death of a school teacher which occurred when she backed her car, at the end of the school day, into the path of a truck, evidence and findings that the deceased was required as part of her duties to visit students in their homes after school hours, and that she was also required from time to time to purchase incidental supplies at retail stores for use in her class, along with related evidence and findings, presented nothing more than a scenario of what the deceased might do on a given day, and was not sufficient to support a finding that the deceased was performing one of the duties of her employment at the time of the accident. Franklin v. Wilson County Bd. of Educ., 29 N.C. App. 491, 224 S.E.2d 657 (1976).

Injury on Employer-Owned Road. - Plaintiffs were not injured by accident arising out of and in the course of their employment when they were injured in a collision between two automobiles driven by fellow employees while they were leaving work on a two mile long private road maintained by the employer to provide ingress to and egress from the employer's plant where defendants, in driving plaintiffs home pursuant to a private arrangement, were not performing assigned duties for their employer; the accident occurred one and one-half miles from the employer's plant and parking lot on a road which was designed and constructed like a public highway; and the risks which the employees were exposed to on the private road were not materially different from those encountered on a public highway. Strickland v. King, 293 N.C. 731, 239 S.E.2d 243 (1977).

Injuries sustained by job applicant in a car accident that occurred when the applicant was on the way home from a drug-screen required by a prospective employer did not arise out of and the course of the applicant's employment with a temporary employer who had placed the applicant, temporarily, with the prospective employer, because the applicant's employment with the temporary employer was not a contributing proximate cause to the applicant's injury and the applicant's injury occurred on the applicant's own time, not company time. Floyd v. Exec. Personnel Group, 194 N.C. App. 322, 669 S.E.2d 822 (2008).

Job applicant failed to prove the requisite employer-employee relationship necessary to recover workers' compensation benefits from the prospective employer for injuries the applicant sustained in a car accident that occurred on the applicant's way home from a drug-screen, because the applicant had not completed the pre-employment screens and was not employed by the prospective employer at the time. Floyd v. Exec. Personnel Group, 194 N.C. App. 322, 669 S.E.2d 822 (2008).

D. MISCELLANEOUS CASES.

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Editor's Note. - Earlier cases dealing with back injuries should be read in light of the 1983 amendment to subdivision (6) of this section, which modified the definition of "injury" with respect to back injuries so as to cover "specific traumatic incidents." Caskie v. R.M. Butler & Co., 85 N.C. App. 266, 354 S.E.2d 242 (1987).

Employee Drowned in Attempt to Extricate Car from Employer's Millrace. - Where deceased, whose duty it was to keep his employer's millrace clean, was drowned in an attempt to extricate a car and its occupants that had plunged into the water, there was sufficient evidence to support a finding that the accident arose out of and in the course of the employment. Southern v. Morehead Cotton Mills Co., 200 N.C. 165, 156 S.E. 861 (1931).

Inhaling Carbon Monoxide Gas. - Deceased died as a result of carbon monoxide gas inhaled by him during the course of one night. It was held that it was error for the Industrial Commission to refuse compensation on the grounds that death resulted from an occupational disease rather than an accident. Cabe v. Parker-Graham-Sexton, Inc., 202 N.C. 176, 162 S.E. 223 (1932).

Death From Dysrhythmia After Heat Exposure. - Industrial Commission did not err in applying the Pickrell presumption based on its finding that the decedent, after being exposed to extreme heat in the course of his employment, was found dead in his work truck and that there was an unknown cause of the dysrhythmia which ultimately resulted in his death; furthermore, the Commission properly found that defendants had not rebutted the presumption, as their expert acknowledged that heat could be a precipitating cause of a cardiac event and that preexisting coronary artery disease would not by itself have caused the decedent's death. Reaves v. Indus. Pump Serv., 205 N.C. App. 417, 696 S.E.2d 548 (2010).

Arrest Outside Scope of Employment of Jailer. - Deceased, who was employed by the sheriff as his deputy and by the county commissioners as jailer, met his death in attempting to arrest an individual who had just shot his own wife at a house two doors from the rear of the jail. The Commission was of the opinion that death resulted from accident arising out of and in the course of employment either as deputy sheriff or as jailer or as "deputy-sheriff jailer." The statute did not then treat deputies as employees of the county and the Supreme Court remanded the case for a finding specifically on whether the accident was in the course of deceased's employment as jailer. Gowens v. Alamance County, 214 N.C. 18, 197 S.E. 538 (1938). The Commission then found that question in the affirmative, but was later overruled on the ground that the attempted arrest was clearly "outside the scope of his employment as jailer".

Injury Produced by Inhaling Asbestos Dust. - The word "accident" within the meaning of this act should be construed in its wide and practical sense to give effect to the intent of the act, and an injury produced by inhaling asbestos dust for a period of five months is an accidental injury within the terms of this section, the test being not the amount of time taken to produce the injury but whether it was produced by unexpected and unforeseen, and therefore, accidental means. McNeeley v. Carolina Asbestos Co., 206 N.C. 568, 174 S.E. 509 (1934). As to compensation for occupational diseases, see G.S. 97-52 to 97-76.

Infection After Getting Lime Dust in Eye. - Plaintiff, an employee at defendant's water company, got lime dust in his eye as he was dumping lime into a feeder. This had happened many times before, but this time his eye became infected. Recovery was allowed. Lover v. Town of Lumberton, 215 N.C. 28, 1 S.E.2d 121 (1939).

Loss of Sight Subsequent to Splashing of Fuel in Eye. - Employee who suffered a loss of sight in his left eye incident to a hemorrhagic central retinal vein occlusion subsequent to an accidental splashing of fuel in the eye could be awarded compensation if the Commission found that the burning and itching occasioned by the fuel-splashing caused employee, through a natural reflex, to vigorously rub his eyes and that the rubbing caused, aggravated, accelerated, or precipitated the hemorrhagic vein occlusion, even if the employee were to have a predisposition toward developing this condition. To deny compensation, the Commission would have to find and conclude that the vigorous rubbing did not significantly cause, aggravate, accelerate, or precipitate the occlusion. Jackson v. L.G. DeWitt Trucking Co., 82 N.C. App. 208, 346 S.E.2d 160 (1986).

Employee Mowing Lawn at Employer's Residence. - Where the claimant was employed to drive a delivery truck and to do janitorial work both in the employer's place of business and at the employer's home, and was injured while mowing the lawn at the employer's residence, the injury was not compensable and was not covered by a compensation insurance policy which provided coverage solely in connection with the employer's business having a definite location. Burnett v. Palmer-Lipe Paint Co., 216 N.C. 204, 4 S.E.2d 507 (1939).

Temporary Sickness and Blindness. - The Industrial Commission found, upon supporting evidence, that claimant became temporarily sick and blind while performing usual manual labor in the usual manner, that his condition improved and he went back to work and that shortly thereafter he again suffered a similar disability. The findings support the conclusion that the injury did not result from an accident arising out of and in the course of claimant's employment within the purview of this Chapter. Buchanan v. State Hwy. & Pub. Works Comm'n, 217 N.C. 173, 7 S.E.2d 382 (1940).

Infection Following Cut. - Where the claimant, while working in an upholstering plant, discovered that an upholstering tack had gone through his shoe and cut his toe, and subsequently infection set in, the Commission's finding that the injury arose out of and in the course of the employment was conclusive. Kearns v. Biltwell Chair & Furn. Co., 222 N.C. 438, 23 S.E.2d 310 (1942).

Rupture of Disc. - The evidence tended to show that employee lifted a plate weighing 40 or 50 pounds in the regular and usual course of his employment, and while handing it to the pressman with his body in a twisted position, felt a sharp pain. Expert testimony was introduced to the effect that the employee had ruptured an intervertebral disc and that the lifting of the weight in the manner described was sufficient to have produced the injury. Plaintiff employee admitted that on two different occasions, several years previously, when he arose from a sitting position he had a catch in his back. It was held that the evidence was sufficient to support the finding of the Industrial Commission that the injury resulted from an accident. Edwards v. Piedmont Publishing Co., 227 N.C. 184, 41 S.E.2d 592 (1947).

Evidence that while digging a ditch 12 inches wide by 14 inches deep, claimant came upon a rock some 24 inches long and 12 inches wide, weighing 50 to 100 pounds, that claimant dug around the rock, bent down to pick it up, and, as he twisted to heave it out of the ditch felt a catch in his back, together with expert testimony that the rupture of claimant's spinal disc was caused by the lifting episode and that lifting from such a twisted and cramped position multiplied the intensity of the stress upon the vertebrae, was sufficient to sustain the Commission's findings that the injury resulted from an accident arising out of and in the course of the employment. Keller v. Electric Wiring Co., 259 N.C. 222, 130 S.E.2d 342 (1963).

The evidence was sufficient to support the commission's conclusion that the ruptured disc suffered by the claimant was an injury by accident where the evidence showed that the claimant was not carrying out his usual and customary duties, and that the circumstances involved an interruption of the work routine and the introduction thereby of unusual conditions likely to result in unexpected consequences. Key v. Wagner Woodcraft, Inc., 33 N.C. App. 310, 235 S.E.2d 254 (1977).

The Industrial Commission properly determined that plaintiff suffered an injury by "accident" where the evidence supported findings by the commission that plaintiff, in the course of her duties as a knitter, was pulling a rod out of a roll of cloth; this activity was a part of plaintiff 's regular and customary job; on this occasion, the withdrawal of the rod was more difficult than usual because the roll of cloth was "extra tight"; and the extraordinary effort plaintiff exerted in her attempt to withdraw the rod injured her back, causing a ruptured intervertebral disc. Porter v. Shelby Knit, Inc., 46 N.C. App. 22, 264 S.E.2d 360 (1980).

The Industrial Commission erred in awarding plaintiff compensation for a herniated intervertebral disc in the absence of expert medical testimony tending to establish a causal relationship between plaintiff 's work-related accident and the injury for which compensation was sought. Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 265 S.E.2d 389 (1980).

Highway Patrolman Using Airplane to Search for Escaped Convict. - Two highway patrolmen were killed while in an airplane searching for an escaped convict. The award of the commissioner granting compensation was reversed by the full Commission, and reinstated on appeal to the superior court. The Supreme Court affirmed the award. The case turned on the question of the authority of the patrolmen to attempt to apprehend the fugitive. The court found such authority, and held that the use of an airplane was not a novel or unusual method of carrying out such a purpose. Galloway v. Department of Motor Vehicles, 231 N.C. 447, 57 S.E.2d 799 (1950).

Death from Coronary Occlusion After Making Arrest. - A game warden arrested several men, one of whom offered slight resistance. Later that day, the warden died of a coronary occlusion. It was held that mere resistance of arrest by one who is being taken into custody by an officer does not constitute an accident; it may be considered as one of his duties. Also, heart disease is not an occupational disease. West v. North Carolina Dep't of Conservation & Dev., 229 N.C. 232, 49 S.E.2d 398 (1948), distinguishing Gabriel v. Town of Newton, 227 N.C. 314, 42 S.E.2d 96 (1947). See Lewter v. Abercrombie Enters., Inc., 240 N.C. 399, 82 S.E.2d 410 (1954).

Electric Shock. - The record disclosed competent evidence sufficient to support the Industrial Commission in finding that death was caused by electric shock by accident arising out of and in the course of employment. Blalock v. City of Durham, 244 N.C. 208, 92 S.E.2d 758 (1956).

Injury Sustained While Taking Medical Test. - An injury sustained by an employee while taking a medical test or examination, which test or examination was required by law in order for the employee to continue to hold her job, did not constitute an accident arising out of and in the course of her employment within the meaning of this section. King v. Arthur, 245 N.C. 599, 96 S.E.2d 846 (1957).

Death of Policeman Held Compensable. Andrews v. Town of Princeville, 245 N.C. 669, 97 S.E.2d 110 (1957).

Lifting of 175 Pound Cabinet. - Evidence that claimant received an injury while attempting, alone, to elevate and hold a 175 pound cabinet in place while another worker secured it to the wall, and that three men were usually assigned to the installation of such cabinets on the construction job, was sufficient to sustain a finding that claimant suffered a compensable injury by accident arising out of and in the course of his employment. Davis v. Summitt, 259 N.C. 57, 129 S.E.2d 588 (1963).

Death from Coronary Thrombosis. - Where the evidence does not disclose that the employee was doing work essentially different from that which had been customarily performed by him over the years, his death as a result of a coronary thrombosis is not the result of an accident within the meaning of the act. Ferrell v. Montgomery & Aldridge Sales Co., 262 N.C. 76, 136 S.E.2d 227 (1964).

Seed Processor Bush Hogging for Employer on Saturday. - Plaintiff, who worked on Saturdays by choice and with the agreement of his employer, and whose primary duties involved processing soybeans, oats and barley through the gin, but who, on the Saturday of his accident, when the gin was not in operation, was instructed by his employer to "bush hog" in the area around the gin and in a field leased by his employer, which job was related to his employer's business, sustained an injury by accident which arose out of and in the course of his employment. Murray v. Biggerstaff, 81 N.C. App. 377, 344 S.E.2d 550, cert. denied, 318 N.C. 696, 350 S.E.2d 858 (1986).

Injury to Minister Moving from Parsonage. - Where claimant, who was employed as a minister by defendant church and was furnished a parsonage as part of his remuneration, agreed for the benefit of the church to move out of the parsonage two weeks before the termination of his employment in order that repairs might be made, and while he was moving his stove from the parsonage he suffered a back injury, the injury could not be traced to his employment as minister, since the evidence plainly showed that his injury arose out of the performance of an act personal to himself and his family. Bryan v. First Free Will Baptist Church, 267 N.C. 111, 147 S.E.2d 633 (1966).

Back Injury. - Evidence tending to show that an employee, while engaged in moving cases of soup in the ordinary manner and free from confining or otherwise exceptional conditions and surroundings, suffered a back injury which was accentuated by a congenital condition, was insufficient to support a finding that the injury resulted from an accident within the purview of the act. Rhinehart v. Roberts Super Mkt., Inc., 271 N.C. 586, 157 S.E.2d 1 (1967).

There was no accident when a painter moved from a squatting position to a standing position and experienced pain in his lower back. Hewett v. Constructor's Supply Co., 29 N.C. App. 395, 224 S.E.2d 297, cert. denied, 290 N.C. 550, 226 S.E.2d 510 (1976).

Plaintiff 's cleaning of an oil breather cap from a co-employee's car during his lunch period was a reasonable activity and the risk inherent in such activity was a risk of the employment giving rise to compensation because of injury sustained in cleaning the cap. Watkins v. City of Wilmington, 28 N.C. App. 553, 221 S.E.2d 910, aff'd, 290 N.C. 276, 225 S.E.2d 577 (1976).

Injuries to Trucker Preparing Truck for Job. - Injuries to an owner-operator of a truck leased to an Interstate Commerce Commission franchise holder arose out of and in the course of employment where the plaintiff accepted the offer of a job driving from Greensboro to San Francisco, a part of the duties of the employment was to present the tractor-trailer in condition to make the trip, and plaintiff was injured while preparing the truck. Thompson v. Refrigerated Transp. Co., 32 N.C. App. 693, 236 S.E.2d 312 (1977).

Injuries to Truck Driver on Route. - Findings of commission that heart attack suffered by truck driver while driving his route was not the result of an accident or occupational disease caused by stress, equipment, and long hours upheld. Dye v. Shippers Freight Lines, 118 N.C. App. 280, 454 S.E.2d 845 (1995).

Nurse Turning Obese Patient. - Plaintiff 's injury suffered during the course of her employment was not the result of an accident within the meaning of subdivision (6) of this section where the injury occurred while plaintiff nurse was turning an unconscious, obese patient, where turning patients was part of plaintiff 's job, and where there was no evidence that the hospital room and its condition were any different than those in which plaintiff was used to working and where the patient, although obese, did not present an exceptional condition to plaintiff. Artis v. North Carolina Baptist Hosps., 44 N.C. App. 64, 259 S.E.2d 789 (1979).

Heart Attack After Chasing Suspect. - Where it was clear from the evidence that acute myocardial infarction suffered by plaintiff deputy sheriff occurred suddenly and immediately after the foot chase of a suspect, and that it was the overexertion experienced during the foot chase that caused the injury to his heart, it was not necessary for plaintiff to show that the overexertion which was the cause of his injury occurred while he was engaged in some unusual activity, since it was the extent and nature of the exertion that classified the resulting injury to the plaintiff 's heart as an injury by accident within the meaning of this section. King v. Forsyth County, 45 N.C. App. 467, 263 S.E.2d 283, cert. denied, 300 N.C. 374, 267 S.E.2d 676 (1980).

Rupture of Aneurysm. - Under the evidence, the Industrial Commission properly determined that the death of a traveling mechanic from the rupture of a congenital aneurysm in the left carotid artery did not result from an accident arising out of and in the course of his employment. King v. Exxon Co., 46 N.C. App. 750, 266 S.E.2d 37 (1980).

Subarachnoid Hemorrhage. - Where the evidence indicated that decedent died from a subarachnoid hemorrhage, which is not a compensable cause, the presumption of compensability was not applicable and the Commission did not err by not applying it. Gilbert v. Entenmann's, Inc., 113 N.C. App. 619, 440 S.E.2d 115 (1994).

Filling in for Absent Employee. - Evidence was sufficient to support a finding by the Industrial Commission that there was no interruption of plaintiff 's work routine or the introduction of some new circumstance not a part of the usual work routine, the fact that plaintiff was filling in for absent employees and therefor engaged in a greater volume of lifting than was her ordinarily assigned task not rendering her performance at the time of the injury other than a part of the usual work routine. Dyer v. Mack Foster Poultry & Livestock, Inc., 50 N.C. App. 291, 273 S.E.2d 321 (1981).

Lifting Object Heavier Than Usual. - Where plaintiff 's work routine, the lifting of lighter crates, was interrupted by introduction of a crate heavier than expected and heavier than usual, the Commission was warranted in concluding as a matter of law that plaintiff suffered an injury "by accident." Gladson v. Piedmont Stores/Scotties Disct. Drug Store, 57 N.C. App. 579, 292 S.E.2d 18, cert. denied, 306 N.C. 556, 294 S.E.2d 370 (1982).

Injury During Regularly Scheduled Rest Break. - Plaintiff 's injury arose out of and in the course of his employment, that is, had its origin in an employment-connected risk as opposed to one common to the public at large, where he was locked inside the plant yard which was enclosed with a high chain link fence with a large crowd of fellow employees as was customary during a regularly scheduled rest break, the railroad track over which he tripped and injured his knee was an integral part of the equipment of the plant, and it ran directly through the area in which he took his relaxation breaks, and permission from the plant supervisor was necessary in order for an employee to leave the plant premises during these scheduled rest breaks. Williams v. Hydro Print, Inc., 65 N.C. App. 1, 308 S.E.2d 478 (1983), cert. denied, 310 N.C. 156, 311 S.E.2d 297 (1984).

Injury Incident to New Job. - Employee who ruptured a tendon as he was twisting and jerking hose off a mandrel incident to a new job in the curved hose department of employer, to which he had been assigned when, to avoid being laid off, he exercised his contractual right to displace another employee in a different department with less union seniority, and who had spent two days observing the new job and two days and a few hours doing the new job, was entitled to compensation for an injury arising by accident. Gunter v. Dayco Corp., 317 N.C. 670, 346 S.E.2d 395 (1986).

Unexplained Death. - Where the undisputed evidence indicated that decedent died while acting in the scope of his employment, and no evidence indicated that he died other than by accident, under these circumstances decedent's widow may rely on a presumption that decedent's death occurred via a work related cause, thereby making the death compensable even though the cause of death was unknown. Pickrell v. Motor Convoy, Inc., 322 N.C. 363, 368 S.E.2d 582 (1988).

Claimant, mother of a 34-year-old cablevision lineman who was found dead at the base of a utility pole by two co-workers, was not entitled to benefits, where the examining pathologist attributed the probable cause of her son's death to marked atherosclerotic coronary artery disease, although he noted that the possibility of a low voltage injury could not be completely excluded, and she was not entitled to a presumption that, upon an unexplained death, there was an inference the death arose out of the employment and was compensable, nor to a presumption that close cases should be decided to the employee's benefit. Gilbert v. B & S Contractors, 81 N.C. App. 110, 343 S.E.2d 609 (1986).

Heart Attack After Tugging on Tarp. - Commission properly concluded that a tractor-trailer driver's heart attack was not the result of an accident arising out of and in the course of employment, where the driver's frustration and physical exertion in tugging on a tarp was not the precipitating cause of the heart attack. Cody v. Snider Lumber Co., 328 N.C. 67, 399 S.E.2d 104 (1991).

For additional cases in which compensation was not awarded, see Plyler v. Charlotte Country Club, 214 N.C. 453, 199 S.E. 622 (1938); Thornton v. J.A. Richardson Co., 258 N.C. 207, 128 S.E.2d 256 (1962); Lawrence v. Hatch Mill, 265 N.C. 329, 144 S.E.2d 3 (1965).

Parents' Travel Expenses. - Workers' compensation claimant was entitled to reimbursement for the travel expenses of the claimant's parents as: (1) Workers' Comp. R. N.C. Indus. Comm'n 407(6) did not limit the party incurring the travel expenses; (2) the care provided by the claimant's mother was medically necessary; (3) the care by the claimant's mother was reasonably required to effect a cure or give relief under G.S. 97-2(19), and was a necessary medical cost incurred as a result of the claimant's injuries. Price v. Piggy Palace, 205 N.C. App. 381, 696 S.E.2d 716 (2010).

XVII. DISABILITY.

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To obtain an award of compensation an employee must establish that his injury caused him disability, unless it is included in the schedule of injuries made compensable by G.S. 97-31 without regard to loss of wage-earning power. Anderson v. Northwestern Motor Co., 233 N.C. 372, 64 S.E.2d 265 (1951).

To support a conclusion of disability, the Commission must find: (1) That the plaintiff was incapable after his injury of earning the same wages he earned before his injury in the same employment, (2) that the plaintiff was incapable after his injury of earning the same wages he earned before his injury in any other employment and (3) that the plaintiff 's incapacity to earn was caused by his injury. Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 345 S.E.2d 374 (1986); Gregory v. Sadie Cotton Mills, Inc., 90 N.C. App. 433, 368 S.E.2d 650, cert. denied, 322 N.C. 835, 371 S.E.2d 277 (1988).

To establish disability a claimant must prove: (1) he was incapable of earning the same wages in the same employment, (2) he was incapable of earning the same wages in any other employment, and (3) his incapacity to earn was caused by the injury. Arrington v. Texfi Indus., 123 N.C. App. 476, 473 S.E.2d 403 (1996).

Disability is the event of being incapacitated from the performance of normal labor. Pruitt v. Knight Publishing Co., 27 N.C. App. 254, 218 S.E.2d 876 (1975), rev'd on other grounds, 289 N.C. 254, 221 S.E.2d 335 (1976).

But disability is more than mere physical injury and is markedly different from technical or functional disability. Pruitt v. Knight Publishing Co., 27 N.C. App. 254, 218 S.E.2d 876 (1975), rev'd on other grounds, 289 N.C. 254, 221 S.E.2d 335 (1976).

Ability to Carry Out "Normal Life Functions" Not Determinative. - Physicians' estimates of plaintiff 's disability, which referred only to the degree of loss of use of her nervous system and to the impairment of her ability to carry out "total life functions," were insufficient to support the commission's finding that plaintiff was entitled to compensation for permanent partial disability or loss of use of her back and not to benefits for total incapacity to work, since a person may be wholly incapable of working and earning wages even though her ability to carry out normal life functions has not been wholly destroyed and even though she has not lost 100 percent use of her nervous system. Little v. Anson County Schools Food Serv., 295 N.C. 527, 246 S.E.2d 743 (1978).

A claimant's post-injury earning capacity is the determinative factor in assessing disability. Tyndall v. Walter Kidde Co., 102 N.C. App. 726, 403 S.E.2d 548, cert. denied, 329 N.C. 505, 407 S.E.2d 553 (1991).

Ability to Work For Others After Injury. - Football player was properly awarded 299 weeks of workers' compensation benefits as the North Carolina Industrial Commission's finding that the football player made another team, but was released from the other team because of limitations from his injury with the employer, was supported by competent evidence. Swift v. Richardson Sports, Ltd., 173 N.C. App. 134, 620 S.E.2d 533 (2005).

Under the act, disability refers not to physical infirmity but to a diminished capacity to earn money. Anderson v. Northwestern Motor Co., 233 N.C. 372, 64 S.E.2d 265 (1951); Hall v. Thomason Chevrolet, Inc., 263 N.C. 569, 139 S.E.2d 857 (1965); Burton v. Peter W. Blum & Son, 270 N.C. 695, 155 S.E.2d 71 (1967); Ashley v. Rent-A-Car Co., 271 N.C. 76, 155 S.E.2d 755 (1967); Morgan v. Thomasville Furn. Indus., 2 N.C. App. 126, 162 S.E.2d 619 (1968); Snead v. Sandhurst Mills, Inc., 8 N.C. App. 447, 174 S.E.2d 699 (1970); Willis v. Reidsville Drapery Plant, 29 N.C. App. 386, 224 S.E.2d 287 (1976); Little v. Anson County Schools Food Serv., 33 N.C. App. 742, 236 S.E.2d 801 (1977), rev'd on other grounds, 295 N.C. 527, 246 S.E.2d 743 (1978); Wood v. J.P. Stevens & Co., 297 N.C. 636, 256 S.E.2d 692 (1979); Lucas v. Burlington Indus., 57 N.C. App. 366, 291 S.E.2d 360 (1982); Priddy v. Cone Mills Corp., 58 N.C. App. 720, 294 S.E.2d 743 (1982); Fleming v. K-Mart Corp., 67 N.C. App. 669, 313 S.E.2d 890 (1984), aff'd, 312 N.C. 538, 324 S.E.2d 214 (1985); Grant v. Burlington Indus., Inc., 77 N.C. App. 241, 335 S.E.2d 327 (1985); Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798 (1986).

Disability is defined in terms of a diminution in earning power. Pruitt v. Knight Publishing Co., 27 N.C. App. 254, 218 S.E.2d 876 (1975), rev'd on other grounds, 289 N.C. 254, 221 S.E.2d 335 (1976).

As used in the Workers' Compensation Act, "disability" specifically relates to incapacity to earn wages. Fleming v. K-Mart Corp., 67 N.C. App. 669, 313 S.E.2d 890 (1984), aff 'd, 312 N.C. 538, 324 S.E.2d 214 (1985).

"Disability" under this Chapter means an impairment in the employee's wage-earning capacity because of injury, not merely a physical impairment. Hendrix v. Linn-Corriher Corp., 78 N.C. App. 373, 337 S.E.2d 106 (1985), aff 'd in part and rev'd in part, 317 N.C. 179, 345 S.E.2d 374 (1986).

Fact that claimant may be capable of doing sedentary work does not establish that she is not disabled. Disability under the Workers' Compensation Act is not to be equated with physical infirmity. Other factors tending to show the unemployability of the worker, such as age, education and experience, may be considered. McCubbins v. Fieldcrest Mills, Inc., 79 N.C. App. 409, 339 S.E.2d 497, cert. denied, 316 N.C. 732, 345 S.E.2d 389 (1986).

An occupationally injured or diseased worker who is employable at wages equal to those earned before the injury or disease was incurred is not disabled. Bridges v. Linn-Corriher Corp., 90 N.C. App. 397, 368 S.E.2d 388, cert. denied, 323 N.C. 171, 373 S.E.2d 104 (1988).

In order to receive disability compensation under the Worker's Compensation Act, the mere fact of an on the job injury is not sufficient; the injury must have impaired the worker's earning capacity. Brown v. S & N Communications, Inc., 124 N.C. App. 320, 477 S.E.2d 197 (1996).

Award Not Based on Capacity to Earn Is Erroneous. - An award of compensation based upon a finding as to the amount the claimant had earned since the date on which total permanent disability had ceased, rather than upon his capacity or ability to earn, is erroneous. Hill v. DuBose, 237 N.C. 501, 75 S.E.2d 401 (1953).

The test for disability is whether and to what extent earning capacity is impaired, not the fact or extent of physical impairment. Robinson v. J.P. Stevens & Co., 57 N.C. App. 619, 292 S.E.2d 144 (1982); Heffner v. Cone Mills Corp., 83 N.C. App. 84, 349 S.E.2d 70 (1986).

Entitlement to compensation under this Chapter is rooted in and must be measured by plaintiff 's capacity or incapacity to earn wages. Mills v. J.P. Stevens & Co., 53 N.C. App. 341, 280 S.E.2d 802, cert. denied, 304 N.C. 196, 285 S.E.2d 100 (1981).

Loss of Earning Power Is Criterion. - The disability of an employee is to be measured by his capacity or incapacity to earn the wages he was receiving at the time of the injury. Loss of earning capacity is the criterion. If there is no loss of earning capacity, there is no disability within the meaning of the act. Dail v. Kellex Corp., 233 N.C. 446, 64 S.E.2d 438 (1951); Peoples v. Cone Mills Corp., 69 N.C. App. 263, 317 S.E.2d 120, modified on other grounds, 316 N.C. 426, 342 S.E.2d 798 (1986), modified on other grounds, 316 N.C. 426, 342 S.E.2d 798 (1986).

Loss of earning capacity is the criterion. Compensation must be based upon loss of wage-earning power rather than the amount actually received. It was intended by this section to provide compensation only for loss of earning capacity. Hill v. DuBose, 234 N.C. 446, 67 S.E.2d 371 (1951); Ashley v. Rent-A-Car Co., 271 N.C. 76, 155 S.E.2d 755 (1967).

The Commission's finding of fact that "due to plaintiff's accepted compensable carpal tunnel syndrome superimposed on fibromyalgia, [she] is unable to earn wages" was not supported by competent evidence; although evidence a plaintiff suffers from pain as a result of her compensable injury may be competent evidence to support a conclusion the plaintiff is disabled, the evidence must show that pain renders the plaintiff incapable of work in any employment. Demery v. Perdue Farms, Inc., 143 N.C. App. 259, 545 S.E.2d 485 (2001), aff'd, 354 N.C. 355, 554 S.E.2d 337 (2001).

Termination of the employee's temporary total disability benefits from the date the employee could no longer show that the employee was disabled was proper. Pursuant to G.S. 97-2(9), "disability" did not mean physical impairment but, instead, meant loss of earning capacity and the evidence showed that the employee's earning capacity became the same about nine months after the employee's work-related accident as it was before that accident. Cross v. Falk Integrated Techs., Inc., 190 N.C. App. 274, 661 S.E.2d 249 (2008).

Disability is measured by the capacity or incapacity of employee to earn the wages he was receiving at the time of the injury, by the same or any other employment. And the fact that the same wages are paid by the employer because of long service does not alter the rule. Branham v. Denny Roll & Panel Co., 223 N.C. 233, 25 S.E.2d 865 (1943); Dail v. Kellex Corp., 233 N.C. 446, 64 S.E.2d 438 (1951); Hill v. DuBose, 234 N.C. 446, 67 S.E.2d 371 (1951).

Statement in Branham v. Denny Roll & Panel Co., 223 N.C. 233, 25 S.E.2d 865 (1943), which is noted above, that there is no disability if the employee is receiving the same wages in the same or other employment is correct only so long as the employment reflects the employee's ability to earn wages in the competitive market. Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798 (1986).

The term "disability," as used in the Workers' Compensation Act, means incapacity because of injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of injury. Watkins v. Central Motor Lines, 279 N.C. 132, 181 S.E.2d 588 (1971); Pruitt v. Knight Publishing Co., 27 N.C. App. 254, 218 S.E.2d 876 (1975), rev'd on other grounds, 289 N.C. 254, 221 S.E.2d 355 (1976); Porter v. Shelby Knit, Inc., 46 N.C. App. 22, 264 S.E.2d 360 (1980).

In order for the Commission to award disability compensation, the plaintiff must prove and the Commission must find: (1) That he was incapable of earning the same wages he had earned before his injury in the same employment, (2) that he was incapable of earning the same wages he had earned before his injury in any other employment, and (3) that his incapacity was caused by his injury or occupational disease. Heffner v. Cone Mills Corp., 83 N.C. App. 84, 349 S.E.2d 70 (1986); Taylor v. Margaret R. Pardee Mem. Hosp., 83 N.C. App. 385, 350 S.E.2d 148 (1986), cert. denied, 319 N.C. 410, 354 S.E.2d 729 (1987).

Under the Workers' Compensation Act, disability is defined by a diminished capacity to earn wages, not by physical infirmity; however, the fact that an employee is capable of performing employment tendered by the employer is not, as a matter of law, an indication of plaintiff's ability to earn wages. Saums v. Raleigh Community Hosp., 346 N.C. 760, 487 S.E.2d 746 (1997).

In order to prove disability the burden is on the employee to show that he is unable to earn the same wages he had earned before the injury, either in the same employment or in other employment. The employee may meet this burden in one of four ways: (1) the production of medical evidence that he is physically or mentally, as a consequence of the work related injury, incapable of work in any employment; (2) the production of evidence that he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment; (3) the production of evidence that he is capable of some work but that it would be futile because of preexisting conditions. i.e. age, inexperience, lack of education, to seek other employment; or (4) the production of evidence that he has obtained other employment at a wage less than that earned prior to the injury. Russell v. Lowes Prod. Distrib., 108 N.C. App. 762, 425 S.E.2d 454 (1993).

And Not by Employer's Willingness to Pay. - Capacity to earn the same wages, and not the particular employer's policy or willingness to pay wages for an undetermined time, is the test of disability. Ashley v. Rent-A-Car Co., 271 N.C. 76, 155 S.E.2d 755 (1967).

The Workers' Compensation Act does not permit an employer to avoid its duty to pay compensation by offering an injured employee employment which the employee under normally prevailing market conditions could find nowhere else and which the employer could terminate at will or for reasons beyond its control. Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798 (1986).

When a person has been offered, but has not accepted, employment after an accident, and the proffered employment does not accurately reflect the person's ability to compete with others for wages, it cannot be considered evidence of earning capacity. Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798 (1986).

Supply room position offered to employee by employer, which was so modified because of employee's medical condition that the position would not be offered in the competitive job market, could not be considered as evidence of employee's ability to earn wages. Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798 (1986).

But there is no "disability" if the employee is receiving the same wages in the same or any other employment. The fact that "in the same" employment he is not required to perform all the physical work theretofore required of him can make no difference. Even so, if this is not "the same employment," then it clearly comes within the term "other employment." To remove the employment from one classification necessarily shifts it to the other. Furthermore, there is no language used in this section or in any other part of the statute which even suggests that "other employment" must be with a different employer. Branham v. Denny Roll & Panel Co., 223 N.C. 233, 25 S.E.2d 865 (1943).

Receipt of Same Wages After Injury Creates Rebuttable Presumption. - Receipt of the same wages after injury should create no stronger presumption that disability has ended than the presumption which arises on an employee's returning to work. In both instances a rebuttable presumption of fact arises. Ashley v. Rent-A-Car Co., 271 N.C. 76, 155 S.E.2d 755 (1967).

If an award is made by the Industrial Commission, payable during disability, there is a presumption that disability lasts until the employee returns to work, and likewise a presumption that disability ends when the employee returns to work at wages equal to those he was receiving at the time his injury occurred. Watkins v. Central Motor Lines, 279 N.C. 132, 181 S.E.2d 588 (1971).

But Is Not Conclusive Proof That No "Disability" Exists. - The amount of wages received by the employee after his injury should be strong evidence of his capacity or incapacity to earn wages, but receipt of wages in the amount received before the injury cannot be conclusive proof that no "disability" exists. Ashley v. Rent-A-Car Co., 271 N.C. 76, 155 S.E.2d 755 (1967).

Disability Not Presumed Where Payments Not Shown to be Payable During Disability. - Presumption that disability continued until plaintiff returned to work did not apply, where parties stipulated plaintiff sustained injury arising out of and in the course of her employment, and parties stipulated Form 21 and Form 26 agreements were approved in which defendant admitted plaintiff was paid for compensation "for temporary total disability for a period not specifically identified in the record", but the record did not include the forms or reveal whether payments made by defendant were payable during disability. Hoyle v. Carolina Associated Mills, 122 N.C. App. 462, 470 S.E.2d 357 (1996).

Employer Given Benefit of Any Wages Earned After Injury. - Subdivision (9) of this section is drawn so as to give the employer the benefit of wages which plaintiff, after his injury, is able to earn from any other source. Barnhardt v. Yellow Cab Co., 266 N.C. 419, 146 S.E.2d 479 (1966).

How Disability Measured for Second Compensable Injury. - While, in the ordinary case, "disability" can be measured in terms of percentage, in those cases where the claimant has a preexisting "disability" to the same part of the body which is affected by a subsequent compensable injury, "disability" must be measured in terms of capacity to earn wages. Ridenhour v. Fisher Transp. Corp., 50 N.C. App. 126, 272 S.E.2d 889 (1980).

It is insufficient for claimant to show that he has obtained no other employment since his retirement. He must prove that he is unable to earn wages in other employment. Hundley v. Fieldcrest Mills, 58 N.C. App. 184, 292 S.E.2d 766 (1982).

Workers' compensation claimant's temporary total disability benefits were properly terminated, regardless of his reasonable attempts to find employment, since he was not disabled as he failed to show any causal connection between his injury and subsequent wage loss since he was unable to find employment based on the economic downturn, not due to his injury; the claimant was physically able to perform his pre-injury job, sought the same type of position and was not subject to any restrictions that would affect his ability to work in his pre-injury position. Medlin v. Weaver Cooke Constr., LLC, 229 N.C. App. 393, 748 S.E.2d 343 (2013), aff'd, 2014 N.C. LEXIS 404 (2014), mot. dismissed, as moot, 2014 N.C. LEXIS 540 (2014), aff'd 367 N.C. 414, 760 S.E.2d 732, 2014 N.C. LEXIS 404 (2014).

The Workers' Compensation Act does not ensure an employee any particular employment; subdivision (9) of this section speaks of incapacity to earn wages "in the same or any other employment." Lucas v. Burlington Indus., 57 N.C. App. 366, 291 S.E.2d 360 (1982).

Capacity of Particular Employee Must Be Considered. - In determining disability, the Commission is not allowed to consider whether the average employee with plaintiff 's injury is capable of working and earning wages. The question is whether this particular employee has such a capacity. Lucas v. Burlington Indus., 57 N.C. App. 366, 291 S.E.2d 360 (1982).

Where an employee's efforts to obtain employment would be futile because of age, inexperience, lack of education or other preexisting factors, the employee should not be precluded from compensation for failing to engage in the meaningless exercise of seeking a job which does not exist. Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798 (1986).

The Commission must decide the disability issue based on the particular characteristics of the individual employee. This necessitates a consideration of the employee's age, work experience, training, education and any other factors which might affect his ability to earn wages. Heffner v. Cone Mills Corp., 83 N.C. App. 84, 349 S.E.2d 70 (1986).

Employee failed to meet her burden of showing a continuing disability for workers' compensation purposes where: (1) the employee's doctor released her to return to work, with few restrictions other than a limitation on prolonged standing; (2) although the employee's condition prevented her from dance instruction, the employee's physical limitations were not so restrictive as to render the employee incapable of performing well in alternate employment; and (3) the employer's expert testified that with the employee's level of education and transferable skills, she would be able to find comparable employment at a commensurate wage. Gilberto v. Wake Forest Univ., 152 N.C. App. 112, 566 S.E.2d 788 (2002).

Before it can be determined that a plaintiff is employable and can earn wages, it must be established, not merely that jobs are available or that the average job seeker can get one, but that plaintiff can obtain a job taking into account his specific limitations. Bridges v. Linn-Corriher Corp., 90 N.C. App. 397, 368 S.E.2d 388, cert. denied, 323 N.C. 171, 373 S.E.2d 104 (1988).

Individual, intellectual and vocational considerations may be taken into account on the issue of disability. Calloway v. Mills, 78 N.C. App. 702, 338 S.E.2d 548 (1986).

Preexisting Conditions. - If preexisting conditions such as an employee's age, education and work experience are such that an injury causes him a greater degree of incapacity for work than the same injury would cause some other person, the employee must be compensated for the incapacity which he or she suffers, and not for the degree of disability which would be suffered by someone with superior education or work experience or who is younger or in better health. Little v. Anson County Schools Food Serv., 295 N.C. 527, 246 S.E.2d 743 (1978).

Plaintiff may prove his wage-earning impairment by evidence of preexisting conditions such as his age, education and work experience which are such that an injury causes him a greater degree of incapacity for work than the same injury would cause some other person. Hundley v. Fieldcrest Mills, 58 N.C. App. 184, 292 S.E.2d 766 (1982).

Date of Disability. - Date of a deceased employee's disability from an occupational disease was found by the North Carolina Industrial Commission to have been the date that the employee became incapable of earning the wages that the employee was receiving at the time of the injury. Kelly v. Duke Univ., 190 N.C. App. 733, 661 S.E.2d 745 (2008), review denied, stay denied, 363 N.C. 128, 675 S.E.2d 367 (2009).

Total and Partial Disability Compared. - If plaintiff is unable to work and earn any wages, he is totally disabled. If he is able to work and earn some wages, but less than he was receiving at the time of his injury, he is partially disabled. Robinson v. J.P. Stevens & Co., 57 N.C. App. 619, 292 S.E.2d 144 (1982).

Definition Not Applicable to Cases of Asbestosis or Silicosis. - The definition of "disability" contained in this section is not applicable to cases of disablement from asbestosis or silicosis. "Disability" resulting from asbestosis or silicosis means the event of becoming actually incapacitated from performing normal labor in the last occupation in which remuneratively employed. Thus, one actually incapacitated by asbestosis or silicosis is entitled to compensation under G.S. 97-29 even though he may be earning the same or greater wages in a different employment. Honeycutt v. Carolina Asbestos Co., 235 N.C. 471, 70 S.E.2d 426 (1952). See G.S. 97-54 and G.S. 97-55.

Definition Read into G.S. 97-38. - The definition of the word "disability" as it is defined in subdivision (9) of this section must be read into G.S. 97-38 in lieu of the word "disability" therein. Burton v. Peter W. Blum & Son, 270 N.C. 695, 155 S.E.2d 71 (1967).

The determination of whether a disability exists is a conclusion of law, which must be based upon findings of fact supported by competent evidence. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E.2d 682 (1982); Hundley v. Fieldcrest Mills, 58 N.C. App. 184, 292 S.E.2d 766 (1982); Grant v. Burlington Indus., Inc., 77 N.C. App. 241, 335 S.E.2d 327 (1985).

Findings Required to Support Conclusion of Disability. - In order to support a conclusion of disability, the Industrial Commission must find: (1) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in the same employment, (2) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in any other employment, and (3) that this incapacity to earn was caused by plaintiff 's injury. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E.2d 682 (1982); Hundley v. Fieldcrest Mills, 58 N.C. App. 184, 292 S.E.2d 766 (1982); Priddy v. Cone Mills Corp., 58 N.C. App. 720, 294 S.E.2d 743 (1982); Peoples v. Cone Mills Corp., 69 N.C. App. 263, 317 S.E.2d 120, modified on other grounds, 316 N.C. 426, 342 S.E.2d 798 (1986); Grant v. Burlington Indus., Inc., 77 N.C. App. 241, 335 S.E.2d 327 (1985); Hendrix v. Linn-Corriher Corp., 78 N.C. App. 373, 337 S.E.2d 106 (1985), aff'd in part and rev'd in part, 317 N.C. 179, 345 S.E.2d 374 (1986).

Remand was required when the Industrial Commission failed to make findings under G.S. 97-2(9) as to whether an employee claiming disability under the North Carolina Workers' Compensation Act had demonstrated either that (1) he made a reasonable effort to obtain employment but was unsuccessful, or (2) any effort to obtain employment would have been futile because of preexisting conditions. Raper v. Mansfield Sys., 189 N.C. App. 277, 657 S.E.2d 899 (2008).

North Carolina Industrial Commission erred in concluding an employee had been unable to earn wages and was entitled to disability benefits because the medical evidence did not show the employee was incapable of working in any employment, so the Commission's finding regarding disability, within the meaning of G.S. 97-2(9), could not be based on the first Russell prong and there was no basis in the Commission's findings for the conclusion the employee was disabled based on either the second or third prong of Russell. Carr v. HHS (Caswell Ctr.), 218 N.C. App. 151, 720 S.E.2d 869 (2012).

Findings Held Inadequate to Establish Disability. - Although pain can be part of a finding of disability, the term "disability" in the context of workers' compensation is defined as the incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment; since the burden remained on the employee to prove his disability, the commission was obligated to make specific findings as to the existence and extent of any disability, and since evidence was presented that the employee was still able to perform some jobs, the commission's findings were inadequate to establish that the employee was disabled because of pain. Johnson v. Southern Tire Sales & Serv., 358 N.C. 701, 599 S.E.2d 508 (2004).

Where the industrial commission found that a worker was unable to work in any capacity due to carpal tunnel syndrome, but the transcripts revealed no medical evidence that supported a finding that the worker was incapable of work in any employment, the commission erred in finding that the worker proved that she was temporarily totally disabled. Teras v. AT&T, 174 N.C. App. 735, 622 S.E.2d 145 (2005), aff'd, - N.C. - , 634 S.E.2d 888 (2006).

Findings Adequate to Show Employee Not Permanently Disabled. - Competent medical evidence supported a determination that an employee, who suffered from a back injury, was not permanently disabled because an expert witness testified that he did not believe that the employee had attained maximum medical improvement and that she was capable of sedentary work. Boylan v. Verizon Wireless, 201 N.C. App. 81, 685 S.E.2d 155 (2009).

Inability to Earn Wages Earned Before Injury Must Be Shown. - Before the plaintiff may receive compensation, he must show that he is not capable of earning the same wages he had earned before his injury. Merely showing that plaintiff is not earning the same wages after his injury than before is insufficient. Hendrix v. Linn-Corriher Corp., 78 N.C. App. 373, 337 S.E.2d 106 (1985), aff'd in part and rev'd in part, 317 N.C. 179, 345 S.E.2d 374 (1986).

Employee Able to Do Other Work Not Entitled to Compensation. - Where the uncontradicted medical testimony indicated that plaintiff, a 46 year old man with an eighth grade education who was unable to read a newspaper or spell, suffered from a mild case of employment-related chronic obstructive lung disease, with a 20 to 30 percent lung impairment, but that plaintiff was capable of work involving a clean environment, moderate activity and anything requiring manual dexterity, plaintiff was not entitled to compensation under this Chapter. Hendrix v. Linn-Corriher Corp., 78 N.C. App. 373, 337 S.E.2d 106 (1985), aff'd in part and rev'd in part, 317 N.C. 179, 345 S.E.2d 374 (1986).

Refusal to Accept Tendered Work. - Claimant unjustifiably refused an offer of suitable employment and was not entitled to temporary disability compensation for her neck injury after that date because the Full North Carolina Industrial Commission did not err by affording greater weight to the medical opinion of the licensed physical therapist who conducted the claimant's functional capacity evaluation (FCE), than the medical opinion of the doctor who conducted the independent medical evaluation; and the pre-injury job offered was within the claimant's work restrictions as her treating physicians believed that the work restrictions recommended in her FCE, if implemented, would allow her to work in her pre-injury position. Garrett v. Goodyear Tire & Rubber Co., 260 N.C. App. 155, 817 S.E.2d 842 (2018).

When Search for Work Need Not Be Shown. - While in order to prove disability, an injured employee must prove that he is unable to work and not merely that he unsuccessfully sought work, the converse is not true. In order to prove disability, the employee need not prove that he unsuccessfully sought employment if the employee proves that he is unable to obtain employment. Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798 (1986).

Claimant Unable to Earn Wages in Any Job for Which Qualified Is Totally, Not Partially, Disabled. - The Commission erred as a matter of law by awarding claimant compensation for partial disability when it found as fact that plaintiff was incapable of earning wages in any employment for which plaintiff was qualified. Based on the Commission's findings, plaintiff was totally disabled within the meaning of G.S. 97-29. Carothers v. Ti-Caro, 83 N.C. App. 301, 350 S.E.2d 95 (1986).

Where a plaintiff, due to an occupational disease, is fully incapacitated to earn wages at employment which is the only work he is qualified to do by reason of such factors as age and education, he is totally incapacitated. Carothers v. Ti-Caro, 83 N.C. App. 301, 350 S.E.2d 95 (1986).

Uncontroverted evidence established that plaintiff, whom the court found to be 59 years old and to have a third-grade education, was totally disabled, where although the impairment rating of his left leg was only 45%, the evidence showed plaintiff to be totally and permanently unable to earn the wages he was receiving at the time of his injury. Wilder v. Barbour Boat Works, 84 N.C. App. 188, 352 S.E.2d 690 (1987).

Employee exposed to toxic chemicals in the course of his employment spray-painting automobiles showed his disability, under G.S. 97-2(9), was permanent and total because he had a seventh grade education, his nervous system was permanently damaged, and he was unemployable due to his severe loss of cognitive function and his inability to sustain concentration and attention necessary for working a normal eight-hour day. Matthews v. City of Raleigh, 160 N.C. App. 597, 586 S.E.2d 829 (2003).

Receipt of Higher Wages for Unsatisfactory Work. - It was not error for the Commission to conclude that employee was permanently partially disabled even though the evidence showed that he had worked in the packing room at a wage higher than he had ever before earned after his impairing lung disease was diagnosed, where the Commission found without exception that he performed unsatisfactorily at this job in the packing department, and where the evidence demonstrated that although he was capable of performing less skilled jobs at the mill, which he did for more than 30 years, he had difficulty in a position requiring greater skills. Calloway v. Mills, 78 N.C. App. 702, 338 S.E.2d 548 (1986).

In determining the extent to which an occupational disease affects an employee's wage-earning ability in another position, the line of inquiry must center on that particular individual's earning capacity and not that of a different individual. Thomas v. Hanes Printables, 91 N.C. App. 45, 370 S.E.2d 419 (1988).

Although the practice of comparing earnings before and after an injury is not the proper method to exhibit diminished earning capacity, it is a valid factor which deserves consideration. Thomas v. Hanes Printables, 91 N.C. App. 45, 370 S.E.2d 419 (1988).

Wages received by claimant after his injury are strong but not conclusive evidence of his ability to earn for purposes of determining whether he is disabled within the meaning of subdivision (9) of this section. Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 345 S.E.2d 374 (1986).

Inability to Earn Same Wages Due to Occupational Disease and Not Merely Lack of Skill. - While it was correct that plaintiff 's inability to earn the same wages as in her former employment was not due to a physical incapacity per se, the transfer of positions which resulted in a diminished earning capacity was necessitated by a compensable injury; therefore, plaintiff 's inability to earn the same wages in other jobs was due to her occupational disease and not merely to her lack of skill in the job as the Industrial Commission found, and the commission's conclusion of law that plaintiff was not entitled to benefits for partial disability because she was capable of earning the same wages she earned before contracting the occupational disease, was not supported by the findings of fact. Thomas v. Hanes Printables, 91 N.C. App. 45, 370 S.E.2d 419 (1988).

Evidence that plaintiff held "temporary" jobs was not sufficient to rebut the presumption of disability created by the Industrial Commission-approved Form 21 agreement. Davis v. Embree-Reed, Inc., 135 N.C. App. 80, 519 S.E.2d 763 (1999), cert. denied, 351 N.C. 102, 541 S.E.2d 143 (1999).

Evidence Supported Determination of Total and Permanent Disability to Employee's Legs. - The evidence was sufficient to support the Industrial Commission's determination that plaintiff was totally and permanently disabled by reason of extensive burns sustained on both legs when he set fire to his trousers while using an electric welder's torch. Martin v. Bahnson Serv. Co., 17 N.C. App. 359, 194 S.E.2d 223, cert. denied, 283 N.C. 257, 195 S.E.2d 690 (1973).

Skin Condition Caused by Sensitivity to Chemicals Used in Work Held Not a Disability. - A hair stylist was not entitled to disability compensation payments where her skin condition, caused by her sensitivity to chemicals used in her work, had completely cleared up within one month of her terminating her employment. While it might be true that her skin disease could recur if she returned to her previous job, there was no evidence of any continuing disability as a result of a disease contracted in the course of employment. She was not entitled to compensation for her susceptibility to the skin disease. Sebastian v. Mona Watkins Hair Styling, 40 N.C. App. 30, 251 S.E.2d 872, cert. denied, 297 N.C. 301, 254 S.E.2d 921 (1979).

Award Limited to Loss of Use of Back Held Insufficient. - Where physicians indicated that an injury to the plaintiff 's spinal cord resulted in weakness in all of her extremities and numbness or loss of sensation throughout her body, and the doctors further testified that she suffered diminished mobility and had difficulty with position sense and with recognition of things in her hands when objects were placed in her hands, the Commission could not limit the plaintiff to an award under G.S. 97-31(23) for loss of use of the back. Little v. Anson County Schools Food Serv., 295 N.C. 527, 246 S.E.2d 743 (1978).

Disability Is Presumed to Continue Until Employee Returns to Work. - Once the disability is proven, there is a presumption that it continues until the employee returns to work at wages equal to those he was receiving at the time his injury occurred. Watson v. Winston-Salem Transit Auth., 92 N.C. App. 473, 374 S.E.2d 483 (1988).

Plaintiff 's Temporary Total Disability Was Presumed to Continue Until She Returned to Work. - Where plaintiff was "ready, willing, and able" to return to work, but her employer declined to honor plaintiff 's request to return due to her injuries, there was a presumption that plaintiff 's temporary total disability continued until she returned to work, and Commission's finding of maximum medical improvement was not the equivalent of the end of plaintiff 's disability; therefore, on remand plaintiff was entitled to a determination of the extent of her disability for the period of time she was not allowed to work. Watson v. Winston-Salem Transit Auth., 92 N.C. App. 473, 374 S.E.2d 483 (1988).

Evidence of Disability Held Sufficient. - Evidence that an employee (1) reported an injury to her supervisor, (2) was advised by a doctor not to continue working because of a disease contracted while working, (3) was terminated because her injury rendered her unable to perform the requisite job duties, and (4) was unable to procure suitable alternative employment at the same wages for the same hours despite reasonable efforts, supported the Industrial Commission's finding that she was disabled as defined in G.S. 92-2(9). Cialino v. Wal-Mart Stores, 156 N.C. App. 463, 577 S.E.2d 345 (2003).

North Carolina Industrial Commission did not err in finding that an employee was disabled as defined by G.S. 97-2 as a result of her falls in the workplace where the employee produced some medical evidence that she was physically incapable of work due to her workplace falls and, thus, there was some medical evidence supporting the Commission's finding. Aboagwa v. Raleigh Lions Clinic for the Blind, Inc., 167 N.C. App. 554, 607 S.E.2d 1 (2004).

Employee was disabled as a result of a right knee injury incurred when she fell on a degreaser at the employee's restaurant; the evidence showed that the employee experienced pain and swelling even after a knee replacement, that ultimately caused total disability. Taylor v. Carolina Rest. Group, Inc., 170 N.C. App. 532, 613 S.E.2d 510 (2005).

North Carolina Industrial Commission did not err by finding that an employee proved that a work-related accident was the cause of her disability under G.S. 97-2(9) because expert testimony was adequate to establish the claim; the expert ruled out other causes of the employee's fibromyalgia; furthermore, the doctor's medical excuse was sufficient to establish the extent of the disability as well. Singletary v. N.C. Baptist Hosp., 174 N.C. App. 147, 619 S.E.2d 888 (2005).

Evidence supported the industrial commission's finding that a workers' compensation claimant was temporarily disabled under G.S. 97-2(9) as of June 1, 2002, as: (1) an employer did not dispute that the claimant was totally disabled due to the claimant's compensable accident as of June 17, 2002, the date the claimant was first examined by an orthopedic doctor, who found a torn medial meniscus, and wrote the claimant out of work; and (2) the claimant's testimony permitted an inference that the claimant's condition as of June 1, 2002, was physically the same as on June 17, 2002. Britt v. Gator Wood, Inc., 185 N.C. App. 677, 648 S.E.2d 917 (2007).

Employee was properly awarded temporary total disability benefits for bilateral carpal tunnel syndrome (CTS) because, inter alia, the evidence tended to show that any current effort by the employee to obtain sedentary light-duty employment would have been futile based on the employee's medical problems, limited education, limited work experience, and limited training. Johnson v. City of Winston-Salem, 188 N.C. App. 383, 656 S.E.2d 608 (2008), review denied, - N.C. - , - S.E.2d - , 2008 N.C. LEXIS 514 (N.C. 2008), aff'd, 362 N.C. 676, 669 S.E.2d 319 (2008).

Injured employee satisfied the employee's initial burden of proving disability as a result of the employee's work-related injuries because the employee's treating physicians placed restrictions on the employee's return to work and the employee was able to perform only light duty assignments when she attempted to return to work; however, the employer and its insurer failed to carry their burden of proving that the employee was capable of obtaining suitable employment. The employer and its insurer, therefore, failed to rebut the ongoing presumption of disability. Richardson v. Maxim Healthcare/ Allegis Group, 188 N.C. App. 337, 657 S.E.2d 34 (2008), aff'd in part, rev'd in part, 362 N.C. 657, 669 S.E.2d 582 (2008).

North Carolina Industrial Commission did not err in awarding an employee ongoing total disability compensation because its findings of fact were supported by competent evidence, and they supported the Commission's conclusions of law that the employee established his disability and that the employer failed to rebut the presumption of disability; the employee testified that since the time of his injury he had been looking for trucking jobs but was unable to find employment and that he was unable to perform those jobs due to his limited ability to sit, and the doctor who treated the employee for symptoms related to his injury testified that the employee was unable to perform his job with the employer based upon his evaluations of the employee and his functional capacity evaluation. Freeman v. Rothrock, 202 N.C. App. 273, 689 S.E.2d 569 (2010).

North Carolina Industrial Commission properly found that a claimant was totally disabled under the third Knight method as a result of her compensable shoulder injury as: (1) the employer did not challenge the findings that the claimant missed work due to her compensable injury between the date of the injury and the date of the aneurysm surgery; (2) the claimant's limited education and vocational history, in combination with her compensable injury, made a search for other employment futile; and (3) the employer did not challenge the conclusion that there was no evidence upon which to apportion the claimant's disability. Church v. Bemis Mfg. Co., 228 N.C. App. 23, 743 S.E.2d 680 (2013).

Evidence of Disability Held Insufficient. - Employee failed to prove disability under G.S. 97-2(9) with respect to the employer's claim that he was no longer totally disabled, as the employee's vocational expert provided self-contradictory testimony, such that it was given minimal weight by the North Carolina Industrial Commission. Nobles v. Coastal Power & Elec., Inc., 207 N.C. App. 683, 701 S.E.2d 316 (2010).

Although evidence supported the finding that an employer's insurer was responsible for an injured employee's neck and back conditions related to the first of two auto accidents, because there was no evidence that the employee was totally unable to work following the second accident, after the employer's insurance had expired, and because the employee failed to show that the employee was incapable of earning wages, benefits were not extended beyond the date of the second accident, which resulted in a mere flare-up of the employee's conditions. Stippich v. Reese's Transit, Inc., 260 N.C. App. 430, 817 S.E.2d 615 (2018).

Evidence of Temporary Total Disability Held Sufficient. - The Court upheld the Commission's finding that the plaintiff had suffered a specific traumatic injury and its consequent award of temporary total disability compensation where the defendants failed to meet their burden of establishing that "suitable jobs [we]re available to plaintiff." Webb v. Power Circuit, 141 N.C. App. 507, 540 S.E.2d 790 (2000), cert denied, 353 N.C. 398, 548 S.E.2d 159 (2001).

Though employee's medical evidence was insufficient to show his temporary total disability, he proved such disability through evidence that, while capable of some work, he was, after reasonable efforts, unsuccessful in his effort to obtain employment. Bridwell v. Golden Corral Steak House, 149 N.C. App. 338, 561 S.E.2d 298 (2002), cert. denied, 355 N.C. 747, 565 S.W.3d 193 (2002).

Award of temporary total disability benefits to an employee who fell while working as a hair stylist at her employer's salon was upheld on appeal because medical testimony established to a reasonable degree of medical certainty that a causal connection existed between employee's degenerative neck condition and the work-related injury, which prohibited her from working. Barbour v. Regis Corp., 167 N.C. App. 449, 606 S.E.2d 119 (2004).

North Carolina Industrial Commission's finding that an employee could not work in any employment as a result of his psychological condition supported the Commission's conclusion that the employee was entitled to continuing temporary total disability compensation; when the Commission's finding was considered with a psychologist's testimony, the correct interpretation of the finding was that the psychologist was unable to state whether the employee would ever be able to return to any employment. Pickett v. Advance Auto Parts, 245 N.C. App. 246, 782 S.E.2d 66 (2016).

Employee's Earning Capacity Negated His Proof of Temporary Total Disability. - The Commission's finding that plaintiff employee failed to sustain his burden of proving temporary total disability was supported by competent evidence which showed that the plaintiff earned income from three private businesses throughout the time he received temporary disability payments from defendants. Sims v. Charmes, 142 N.C. App. 154, 542 S.E.2d 277 (2001), cert. denied, 353 N.C. 729, 550 S.E.2d 782 (2001).

Evidence That Claimant No Longer Disabled. - Evidence that claimant was released by his doctor to return to work and that he worked as a self-employed painter and then as a truck driver, earning more than he had while employed with defendant, was sufficient to support the conclusion that he was no longer entitled to temporary total disability payments. Snead v. Carolina Pre-Cast Concrete, Inc., 129 N.C. App. 331, 499 S.E.2d 470 (1998), cert. denied, 348 N.C. 501, 510 S.E.2d 656 (1998).

North Carolina Industrial Commission did not err by finding that an employee failed to prove that her disability under G.S. 97-2(9) extended past a medical leave granted by a doctor where no other evidence was provided; there was no presumption of continuing disability since there was no previous opinion or settlement agreement. Singletary v. N.C. Baptist Hosp., 174 N.C. App. 147, 619 S.E.2d 888 (2005).

Evidence that an employee had been released to sedentary work with some restrictions, and the lack of evidence of the extent to which she was unable to work after that time, supported the North Carolina Industrial Commission's finding that her period of disability had ended. Frost v. Salter Path Fire & Rescue, 176 N.C. App. 482, 628 S.E.2d 22 (2006), rev'd on other grounds, review improvidently allowed, 361 N.C. 181, 639 S.E.2d 429 (2007).

Effect of Retirement. - Because disability measures an employee's present ability to earn wages, and is unrelated to a decision to withdraw from the labor force by retirement, the Commission may not deny disability benefits because the claimant retired, where there is evidence of diminished earning capacity caused by an occupational disease. Heffner v. Cone Mills Corp., 83 N.C. App. 84, 349 S.E.2d 70 (1986).

Evidence of Employee's Inability to Earn Wages Held Sufficient. - Testimony of two doctors and a vocational rehabilitation counselor was amply competent to support the Commission's finding that employee had no capacity to earn wages in either the same or any other employment up to the date of a hearing before a deputy commissioner. Kennedy v. Duke Univ. Medical Center, 101 N.C. App. 24, 398 S.E.2d 677 (1990).

Industrial commission could properly determine that a workers' compensation claimant's reduced wages were a manifestation of the claimant's disability under G.S. 97-2(9) and that this diminished earning capacity entitled the claimant to temporary partial disability benefits, as the claimant presented evidence that the claimant obtained other employment at lower wages than the claimant had previously earned, as well as evidence showing agreement among all the doctors that the claimant had permanent restrictions on the type of work the claimant could perform; the burden shifted to the employer to show that the claimant could obtain a higher-paying job, and the employer did not do so. Britt v. Gator Wood, Inc., 185 N.C. App. 677, 648 S.E.2d 917 (2007).

Evidence of Partial Disability Held Sufficient. - Evidence held sufficient to support the finding that plaintiff was partially incapable of engaging in gainful employment by byssinosis and chronic obstructive lung disease as a result of 29 years of smoking and exposure to cotton dust and that his occupational disease, combined with his age, limited education and work experience, limited his ability to earn wages. Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 345 S.E.2d 374 (1986).

Claimant Must Show Disability Work-Related. - Where evidence supported the Industrial Commission's finding that plaintiff failed to establish his present disability was caused by a work-related injury, the commission's decision would not be disturbed on appeal and plaintiff was entitled to compensation only for his temporary total disability. Lettley v. Trash Removal Serv., 91 N.C. App. 625, 372 S.E.2d 747 (1988).

Plaintiff did not meet her burden of showing she sustained a disability as a consequence of her injury where there was competent evidence in the record to show that plaintiff was released to return to work without restrictions four days after her injury , and that she was capable of earning her regular wages and performing her regular duties. Fuller v. Motel 6, 136 N.C. App. 727, 526 S.E.2d 480 (2000).

Plaintiff Carried Initial Burden of Showing That She Was Disabled. - Where the record indicated that plaintiff began to receive temporary total disability payments in May 1984, the payments continued until November 1984, on November 21, 1984 her treating physician reported that she could return to work "as her comfort permits," there was no "light" work available for plaintiff nor would her employer allow her to return to work to perform her old duties, and though not in the record, the briefs indicated and the opinion and award make reference to the fact that plaintiff had signed a statement in which it was recited that she had reached maximum medical improvement on November 22, 1984, plaintiff carried her initial burden of showing she was disabled. Watson v. Winston-Salem Transit Auth., 92 N.C. App. 473, 374 S.E.2d 483 (1988).

Presumption of Disability Created. - In a general sense, it is true an injured employee has the burden of showing he is incapable of earning the same wages he previously earned, either in the same or any other employment; however, upon execution of a Form 21 agreement, and subsequent approval by the Commission, the employee enjoys a presumption of disability. King v. Yeargin Constr. Co., 124 N.C. App. 396, 476 S.E.2d 898 (1996).

The approval of a Form 21 by the Industrial Commission relieves the employee of his initial burden of proving a disability; further, once an agreement is approved, the employee receives the benefit of the presumption that he is totally disabled. Brown v. S & N Communications, Inc., 124 N.C. App. 320, 477 S.E.2d 197 (1996).

Constructive Refusal to Accept Suitable Employment. - For misconduct that causes a claimant to be discharged from employment to amount to "constructive refusal" to accept suitable employment that renders him ineligible for worker's compensation, the misconduct need not occur during working hours or at the workplace, and it need not amount to a crime, but it must have been conduct for which a nondisabled employee ordinarily would have been terminated. Williams v. Pee Dee Elec. Membership Corp., 130 N.C. App. 298, 502 S.E.2d 645 (1998).

Failure to Make Required Findings Concerning Earning Capacity. - Industrial commission erred in determining a worker's permanent partial disability rating pursuant to G.S. 97-31; disability was defined by a diminished capacity to earn wages, not by physical infirmity alone, G.S. 97-2(9), and the commission failed to make required findings pursuant to G.S. 97-30 on whether the job offered to the worker by her employer accurately reflected her ability to earn wages. Baker v. Sam's Club, 161 N.C. App. 712, 589 S.E.2d 387 (2003).

Case was remanded to the Industrial Commission to take additional evidence if necessary and to make specific findings addressing an employee wage-earning capacity, considering his compensable tinnitus in the context of all the preexisting and coexisting conditions bearing upon his wage-earning capacity, because the Commission made no related findings on how the employee's compensable tinnitus and any related symptoms could have affected his ability to engage in wage-earning activities. Wilkes v. City of Greenville, 369 N.C. 730, 799 S.E.2d 838 (2017).

Evidence of Incapacity to Earn Wages Held Sufficient. - Where defendant failed to come forward with rebuttal evidence, the Industrial Commission did not err in finding that the medical evidence, plaintiff's complaints of chronic leg and back pain related during each visit to her physicians, and plaintiff's continuing pain treatment and doctor visits as of the hearing date provided competent evidence supporting a determination that plaintiff was incapable of earning the same wages from defendant or another employer as a result of lumbosacral strain. Barber v. Going West Transp., Inc., 134 N.C. App. 428, 517 S.E.2d 914 (1999).

Award of Disability Benefits Appropriate Remedy. - Where the full Commission found that defendants had not presented convincing evidence that defendant-store had offered or obtained employment for plaintiff consistent with her limitations, and where plaintiff met the burden of showing injury to her wage earning capacity, the full Commission was correct in finding that the disability continued, and ongoing award of disability benefits was the appropriate remedy. Simmons v. Kroger Co., 117 N.C. App. 440, 451 S.E.2d 12 (1994).

Plaintiff, after having shown credible evidence of diligent efforts to find employment, was entitled to receive compensation benefits where his inability to earn the same wages was caused in part by unavailability of area jobs consistent with his physical limitations. Fletcher v. Dana Corp., 119 N.C. App. 491, 459 S.E.2d 31 (1995), cert. denied, 342 N.C. 191, 463 S.E.2d 235 (1995).

Where the Industrial Commission weighed the evidence and determined the credibility of the witnesses before it and made findings of fact as to its award of temporary disability to an employee who had fallen at his workplace, this satisfied the fact-finding of G.S. 97-85; the finding that the employee had suffered a back injury within G.S. 97-2(6) was presumed to be correct on appeal, pursuant to N.C. R. App. P. 10(b) where the employer did not preserve that issue for review by separately contesting each particular finding of fact. Johnson v. Herbie's Place, 157 N.C. App. 168, 579 S.E.2d 110 (2003), cert. denied, 357 N.C. 460, 585 S.E.2d 760 (2003).

XVIII. BURDEN OF PROOF AND EVIDENCE.

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Burden of Proof Is on Claimant. - The person claiming the benefit of compensation has the burden of showing that the injury complained of resulted from an accident arising out of and in the course of the employment. Henry v. A.C. Lawrence Leather Co., 231 N.C. 477, 57 S.E.2d 760 (1950); Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865 (1963); O'Mary v. Land Clearing Corp., 261 N.C. 508, 135 S.E.2d 193 (1964); Lucas v. Li'l Gen. Stores, 289 N.C. 212, 221 S.E.2d 257 (1976); Franklin v. Wilson County Bd. of Educ., 29 N.C. App. 491, 224 S.E.2d 657 (1976); Smith v. Dacotah Cotton Mills, Inc., 31 N.C. App. 687, 230 S.E.2d 772 (1976).

One who seeks to avail himself of the act must come within its terms and must be held to prove that he is in a class embraced in the act. Hayes v. Board of Trustees, 224 N.C. 11, 29 S.E.2d 137 (1944); Richards v. Nationwide Homes, 263 N.C. 295, 139 S.E.2d 645 (1965).

Claimant in a proceeding under the Workers' Compensation Act has the burden of proving that his claim is compensable under the act. Henry v. A.C. Lawrence Leather Co., 231 N.C. 477, 57 S.E.2d 760 (1950). See also Davis v. Raleigh Rental Center, 58 N.C. App. 113, 292 S.E.2d 763 (1982).

The burden of proving each and every element of compensability is upon the plaintiff. Harvey v. Raleigh Police Dep't, 96 N.C. App. 28, 384 S.E.2d 549, cert. denied, 326 N.C. 706, 388 S.E.2d 454 (1989).

Claimant Has Burden of Proving Employer-Employee Relationship. - In order to bring himself within the coverage of the Workers' Compensation Act, the claimant has the burden of proving that the employer-employee relationship existed. Lloyd v. Jenkins Context Co., 46 N.C. App. 817, 266 S.E.2d 35 (1980); Durham v. McLamb, 59 N.C. App. 165, 296 S.E.2d 3 (1982); Doud v. K & G Janitorial Servs., 69 N.C. App. 205, 316 S.E.2d 664, cert. denied, 312 N.C. 492, 322 S.E.2d 492 (1984).

Burden of Proving Disability. - In workers' compensation cases, a claimant ordinarily has the burden of proving both the existence of his disability and its degree. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E.2d 682 (1982); Hundley v. Fieldcrest Mills, 58 N.C. App. 184, 292 S.E.2d 766 (1982); Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 345 S.E.2d 374 (1986); Taylor v. Margaret R. Pardee Mem. Hosp., 83 N.C. App. 385, 350 S.E.2d 148 (1986), cert. denied, 319 N.C. 410, 354 S.E.2d 729 (1987).

In order to receive disability compensation, the burden is on the claimant to prove that his illness has impaired his capacity to work and the extent of this impairment. Priddy v. Cone Mills Corp., 58 N.C. App. 720, 294 S.E.2d 743 (1982).

The burden of proof of showing a disability is on the plaintiff. Donnell v. Cone Mills Corp., 60 N.C. App. 338, 299 S.E.2d 436, cert. denied, 308 N.C. 190, 302 S.E.2d 243 (1983).

Submission of a Form 62 did not shift the burden from plaintiff to prove continuing disability, G.S. 97-2(9), under the North Carolina Workers' Compensation Act. The burden remained on plaintiff to prove continuing disability. Treat v. Mecklenburg County, 194 N.C. App. 545, 669 S.E.2d 800 (2008).

Employee to Establish Disability Before Employer Can Be Required to Prove the Availability of Suitable Employment. - The Industrial Commission erred in placing the initial burden on the defendants/employers to prove the availability of suitable employment at pre-injury wages without first requiring plaintiff/injured illegal alien employee to establish the existence and extent of his disability. Before defendants could be required to prove the availability of suitable employment, plaintiff had to first come forward with evidence to show that his earning capacity was diminished as a result of his on-the-job injury. Olivares-Juarez v. Showell Farms, 138 N.C. App. 663, 532 S.E.2d 198 (2000).

Evidence of Effort to Find Other Employment. - An injured employee seeking an award of total disability under this section who is unemployed, medically able to work, and possesses no preexisting limitations which would render him unemployable, must produce evidence of reasonable effort to find other employment. Russell v. Lowes Prod. Distrib., 108 N.C. App. 762, 425 S.E.2d 454 (1993).

North Carolina Industrial Commission erred in denying the claim for disability as it erred by concluding the claimant failed to make a reasonable effort to find suitable employment because the Commission's finding regarding the claimant's search was merely a conclusion that the claimant's search for employment was unreasonable; and that conclusory finding was insufficient to support the Commission's conclusion regarding the claimant's failure to establish his disability because he failed to make a reasonable job search. Patillo v. Goodyear Tire & Rubber Co., 251 N.C. App. 228, 794 S.E.2d 906 (2016).

North Carolina Industrial Commission properly found that an employee did not make a reasonable but unsuccessful effort to obtain employment and, thus, failed to establish the employee was disabled because the employee did not engage in a reasonable job search. Griffin v. Absolute Fire Control, Inc., 269 N.C. App. 193, 837 S.E.2d 420 (2020), aff'd, cert. dismissed, as moot, 376 N.C. 727, 854 S.E.2d 578, 2021 N.C. LEXIS 167 (2021); cert. dismissed, as moot, 854 S.E.2d 588, 2021 N.C. LEXIS 185 (N.C. 2021).

Claimant Must Show Disability Work-Related. - Where evidence supported the Industrial Commission's finding that plaintiff failed to establish his present disability was caused by a work-related injury, the Commission's decision would not be disturbed on appeal and plaintiff was entitled to compensation only for his temporary total disability. Lettley v. Trash Removal Serv., 91 N.C. App. 625, 372 S.E.2d 747 (1988).

Whether an employee is disabled is a question of law which must be based on findings of fact supported by competent evidence. Heffner v. Cone Mills Corp., 83 N.C. App. 84, 349 S.E.2d 70 (1986).

Plaintiff Carried Initial Burden of Showing That She Was Disabled. - Where the record indicated that plaintiff began to receive temporary total disability payments in May 1984, the payments continued until November 1984, on November 21, 1984 her treating physician reported that she could return to work "as her comfort permits," there was no "light" work available for plaintiff nor would her employer allow her to return to work to perform her old duties, and though not in the record, the briefs indicated and the opinion and award make reference to the fact that plaintiff had signed a statement in which it was recited that she had reached maximum medical improvement on November 22, 1984, plaintiff carried her initial burden of showing she was disabled. Watson v. Winston-Salem Transit Auth., 92 N.C. App. 473, 374 S.E.2d 483 (1988).

Burden of Proof that Claimant Unsuited for Employment Due to Characteristics Peculiar to Him. - The burden of proof rests upon the claimant to prove the existence of his disability and its extent, and relevant to these issues is evidence that the claimant may be unsuited for particular employment due to characteristics peculiar to him. Tyndall v. Walter Kidde Co., 102 N.C. App. 726, 403 S.E.2d 548, cert. denied, 329 N.C. 505, 407 S.E.2d 553 (1991).

Including Inability to Earn Pre-Injury Wages. - Industrial Commission misapplied the law by erroneously placing the initial burden on defendant to prove plaintiff's capacity to earn pre-injury wages in other employment before plaintiff had met her burden of proof regarding pre-injury wages, in support of a showing of "disability" under this section, as laid out in Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982). Coppley v. PPG Indus., Inc., 133 N.C. App. 631, 516 S.E.2d 184 (1999).

Continually placing the burden on an employee to prove that his or her symptoms are causally related to his or her admittedly compensable injury before he or she can receive further medical treatment ignores the prior award; accordingly, an admission of compensability approved under the Workers' Compensation Act entitles an employee to a presumption that additional medical treatment is causally related to his or her compensable injury. Wilkes v. City of Greenville, 369 N.C. 730, 799 S.E.2d 838 (2017).

In the compensation cases holding medical testimony unnecessary to make a prima facie case of causation, the distinguishing features are an uncomplicated situation, the immediate appearance of symptoms, the prompt reporting of the occurrence by the worker to his supervisor and consultation with a physician, and the fact that the plaintiff was theretofore in good health and free from any disability of the kind involved. A further relevant factor is the absence of expert testimony that the alleged precipitating event could not have been the cause of the injury. Slizewski v. International Seafood, Inc., 46 N.C. App. 228, 264 S.E.2d 810 (1980).

Hearsay. - It must not only appear by competent evidence that the injury was received in the course of the employment, but also that it arose out of the employment as well. Hearsay evidence is not competent to establish either fact. Plyler v. Charlotte Country Club, 214 N.C. 453, 199 S.E. 622 (1938).

Where no objection is made before the hearing commissioner to the introduction of hearsay evidence, the objection must be treated as waived and the evidence may be considered. The principle on which hearsay evidence is excluded by rules of evidence relates to its competency, not to its relevancy. Maley v. Thomasville Furn. Co., 214 N.C. 589, 200 S.E. 438 (1938).

The Commission is the sole judge of the credibility and weight to be given the testimony; it may accept or reject all of the testimony of a witness, or it may accept a part and reject a part. Blalock v. Roberts Co., 12 N.C. App. 499, 183 S.E.2d 827 (1971).

The Commission has the duty and authority to resolve conflicts in the testimony of a witness or witnesses. Blalock v. Roberts Co., 12 N.C. App. 499, 183 S.E.2d 827 (1971).

Regardless of whether the North Carolina Industrial Commission deemed a doctor's testimony as speculative or not, as the court found that the Commission's findings of fact were supported by the conclusion that the deceased employee's heart attack was not the result of an accident arising out of his employment, the widow's request for benefits under G.S. 97-2(6) was properly denied; the Commission judged the credibility and weight of the evidence. Gray v. UPS, 226 N.C. App. 15, 739 S.E.2d 590 (2013), review denied, 747 S.E.2d 554, 2013 N.C. LEXIS 864 (2013).

North Carolina Industrial Commission did not err in determining that an employee met his burden to establish a compensable injury because the Commission found the employee to be credible, and the court of appeals would not second-guess its credibility determination; the court of appeals would not hold that the testimony of the employee's primary care physician and a psychologist was incompetent on the basis that they relied on the employee's statements. Pickett v. Advance Auto Parts, 245 N.C. App. 246, 782 S.E.2d 66 (2016).

Commission's Factual Determinations Binding Upon Court. - Whether a plaintiff was injured by accident and had a reasonable excuse for not giving the employer timely notice were factual issues that depended entirely upon her credibility. Since the Commission found, as its prerogative as fact finder permitted, that plaintiff's testimony was not credible, that determination was binding upon the Court of Appeals. Elliot v. A.O. Smith Corp., 103 N.C. App. 523, 405 S.E.2d 799 (1991).

Where plaintiff's treating physician opined, based on his physical examinations of plaintiff and plaintiff's reports to him, that a work-related accident aggravated plaintiff's pre-existing condition, the North Carolina Industrial Commission properly accepted his opinion, as his failure to examine all of plaintiff's medical records went to the weight to be given the physician's testimony, not to its competency. Yingling v. Bank of Am., 225 N.C. App. 820, 741 S.E.2d 395 (2013).

Sufficiency of Evidence Is Question of Law. - The question whether the evidence is sufficient to support the findings is one of law to be determined by the courts. Lawrence v. Hatch Mill, 265 N.C. 329, 144 S.E.2d 3 (1965).

Proof That Employee Was at Place of Employment Doing Usual Work Is Insufficient. - It must be kept in mind that while an accident arising out of an employment usually occurs in the course of it, it does not necessarily or invariably do so. Nor does an accident which occurs in the course of an employment necessarily or inevitably arise out of it. Therefore proof that an employee was at his place of employment and was doing his usual work at the time of the injury, without more, is insufficient to support an award of compensation. Sweatt v. Rutherford County Bd. of Educ., 237 N.C. 653, 75 S.E.2d 738 (1953).

But Evidence Explaining Exact Cause of Accident Need Not Be Offered. - It is not necessary for a plaintiff to offer evidence explaining the exact cause of the accident. Battle v. Bryant Elec. Co., 15 N.C. App. 246, 189 S.E.2d 788, cert. denied, 281 N.C. 755, 191 S.E.2d 353 (1972).

Award Where Cause of Injury Not Explained. - Where an employee, while about his work, suffers an injury in the ordinary course of employment, the cause of which is not explained, but which is a natural and probable result of a risk thereof, and the Commission finds from the evidence that the injury arose out of the employment, an award will be sustained. Vause v. Vause Farm Equip. Co., 233 N.C. 88, 63 S.E.2d 173 (1951); Poteete v. North State Pyrophyllite Co., 240 N.C. 561, 82 S.E.2d 693 (1954); Cole v. Guilford County, 259 N.C. 724, 131 S.E.2d 308 (1963); Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865 (1963).

When an accident occurs in the course of employment, and there is no affirmative evidence that arose from a cause independent of the employment, an award will be sustained. Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865 (1963).

Full Commission of the North Carolina Industrial Commission correctly ruled with respect to the replacement of a claimant's right breast implant, which was established to have been damaged as a result of a motor vehicle accident while working, but erred in concluding that the claimant sustained compensable injuries to her left breast implant as well as the medical testimony indicated inconclusively that the rippling in the claimant's left breast was caused by the accident, therefore, the claimant was only entitled to compensation for replacement of the right breast implant. Richardson v. Maxim Healthcare/Allegis Group, - N.C. App. - , - S.E.2d - (Oct. 2, 2007).

Insufficient Evidence of Earning Capacity. - There was no competent evidence to support the Commission's findings that plaintiff was capable of earning $12.00 per hour, that other suitable jobs for which plaintiff was qualified were available, that any other positions for which plaintiff was qualified would pay $12.00 per hour, that plaintiff would be able to secure such a position, and that plaintiff's ability to obtain a temporary position paying $12.00 per hour meant that plaintiff, when permanently employed, would receive $12.00 per hour. Daughtry v. Metric Constr. Co., 115 N.C. App. 354, 446 S.E.2d 590, cert. denied, 338 N.C. 515, 452 S.E.2d 808 (1994).

Plaintiff met his burden of proving present earning capacity where he produced evidence that he had obtained employment as a driver at a wage less than that earned as a brick mason prior to the injury. Bond v. Foster Masonry, Inc., 139 N.C. App. 123, 532 S.E.2d 583 (2000).

Presumption of Continuing Disability. - The employer may not rebut the presumption of continuing disability by showing that the employee is capable of earning pre-injury wages in a temporary position or by creating a position within the employer's own company that is not ordinarily in the competitive job market, because such positions do not accurately reflect the employee's capacity to earn wages. Stamey v. North Carolina Self-Insurance Guar. Ass'n, 131 N.C. App. 662, 507 S.E.2d 596 (1998).

The employer failed to rebut the presumption of continuing disability with medical evidence or with evidence that the claimant was capable of obtaining a suitable job in the competitive marketplace, where the claimant temporarily and unsuccessfully returned to work, the modified roller picker position offered to claimant was temporary, there was no evidence that this position was a real position that existed in the marketplace and was not "made" work, and the only medical evidence supported the claimant's claims of shoulder pain. Stamey v. North Carolina Self-Insurance Guar. Ass'n, 131 N.C. App. 662, 507 S.E.2d 596 (1998).

Court of appeals properly vacated the North Carolina Industrial Commission's finding that an employee failed to establish that his anxiety and depression were a result of his work-related accident because the employee was entitled to a presumption that additional medical treatment was related to his compensable conditions; the Commission did not apply any presumption, and instead placed the initial burden on the employee to prove causation for any medical compensation he sought. Wilkes v. City of Greenville, 369 N.C. 730, 799 S.E.2d 838 (2017).

Presumption of Reduction in Earning Capacity Rebutted. - Where claimant presented no evidence contesting the availability of other jobs or her suitability for those jobs and furthermore presented no evidence that she sought employment at any of these places, employer offered sufficient evidence to rebut the presumption that claimant sustained a reduction in her earning capacity. Tyndall v. Walter Kidde Co., 102 N.C. App. 726, 403 S.E.2d 548, cert. denied, 329 N.C. 505, 407 S.E.2d 553 (1991).

Termination of Benefits. - Absent waiver, in order to terminate an employee's benefits after execution of a Form 21 agreement, the employer must request a hearing at which it bears the burden of showing the employee is no longer disabled. King v. Yeargin Constr. Co., 124 N.C. App. 396, 476 S.E.2d 898 (1996).

An employer may rebut the continuing presumption of total disability either by showing the employee's capacity to earn the same wages as before the injury or by showing the employee's capacity to earn lesser wages than before the injury. Brown v. S & N Communications, Inc., 124 N.C. App. 320, 477 S.E.2d 197 (1996).

Medical Treatment - The claimant's medical care constituted "medical treatment" under subdivision (19) of this section, even though the employer contended that the claimant was not referred to some of his doctors by specialists, where the employee was referred to a specialist by his family doctor, and each subsequent visit to a physician was on the basis of a valid medical referral. Sanders v. Broyhill Furn. Indus., 131 N.C. App. 383, 507 S.E.2d 568 (1998).

Pursuant to G.S. 97-2(18) and 97-25, an employee was entitled to payment of medical expenses for treatment to relieve substantial and continual back pain arising from an accident where she fell and injured her back in the course of her employment, where the record reflected that she had obtained authorization from the Industrial Commission for such future treatment; however, there was no indication in the record of the necessary authorization in order to allow reimbursement for past medical treatments, and accordingly, an award rendered for that was vacated and further consideration had to be made on the issue of whether the proper authorization was obtained prior to such treatment or within a reasonable time thereafter. Whitfield v. Lab. Corp., 158 N.C. App. 341, 581 S.E.2d 778 (2003).

Medical Certainty Was Not Required. - North Carolina Industrial Commission properly concluded that medical certainty was not required for purposes of a widow's request for benefits under G.S. 97-2(6), arising from the deceased employee's death while at work; the widow's benefits request was properly denied. Gray v. UPS, 226 N.C. App. 15, 739 S.E.2d 590 (2013), review denied, 747 S.E.2d 554, 2013 N.C. LEXIS 864 (2013).

Remand to Show Continued Disability. - Where Commission's determination that defendant who suffered back injury was credible was not supported by sufficient evidence, and there was competent evidence regarding business ownership and management by defendant, case would be remanded for plaintiff to show that he continued to be disabled. Deese v. Champion Int'l Corp, 133 N.C. App. 278, 515 S.E.2d 239 (1999), cet. granted, 350 N.C. 828 (1999).

Employer Failed to Rebut Employee's Evidence of Total Disability. - Because an injured employee presented sufficient evidence of total disability, and the employer failed to rebut this evidence, the Industrial Commission did not err in concluding that the employee was temporarily totally disabled to the extent that the Commission awarded the employee benefits. Roset-Eredia v. F.W. Dellinger, Inc., 190 N.C. App. 520, 660 S.E.2d 592 (2008).

Claimant Not Entitled to Presumption of Ongoing Disability. - Workers' compensation claimant was not entitled to a presumption of ongoing disability for purposes of the claimant's total disability claim under G.S. 97-2(9) as: (1) the claimant had not filed an executed Form 21 or Form 26, and there had not been a prior disability award from the industrial commission; and (2) an orthopedic doctor released the claimant to work without restrictions a year earlier. Britt v. Gator Wood, Inc., 185 N.C. App. 677, 648 S.E.2d 917 (2007).

Doctor's diagnosis, which was based on test results and was not reliant on facts not in evidence or the maxim post hoc ergo propter hoc, was competent evidence of a compensable injury. Raper v. Mansfield Sys., 189 N.C. App. 277, 657 S.E.2d 899 (2008).

XIX. COMPENSATION.

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"Compensation," means money relief afforded according to a scale established and for the persons designated in this Chapter. Ivey v. North Carolina Prison Dep't, 252 N.C. 615, 114 S.E.2d 812 (1960); Bowman v. Comfort Chair Co., 271 N.C. 702, 157 S.E.2d 378 (1967).

And Involves More Than Burial Expenses. - The definition of compensation in this section includes burial expenses, but it takes the whole to constitute compensation and not one of its parts. Compensation for wrongful death involves more than the burial of the body. Ivey v. North Carolina Prison Dep't, 252 N.C. 615, 114 S.E.2d 812 (1960).

Types of Compensation. - The Workers' Compensation Act provides primarily for four types of compensation to be paid to employees covered by the act. They are: (1) Compensation for disability, dependent as to amount upon whether the injury produces a permanent total, a permanent partial, a total temporary or a partial temporary incapacity; (2) Compensation in stipulated amounts for loss of some part of the body such as a finger or toe, a leg or arm; (3) Compensation for death; and (4) Compensation for bodily disfigurement. Branham v. Denny Roll & Panel Co., 223 N.C. 233, 25 S.E.2d 865 (1943).

It was not error to deny a quadriplegic employee's request to order an employer to provide an adaptable van because the record showed transportation services available to the employee were satisfactory. Tinajero v. Balfour Beatty Infrastructure, Inc., 233 N.C. App. 748, 758 S.E.2d 169 (2014).

Presumption of Compensability When Employee Dies within Scope of Employment and Cause Is Unknown. - The Court of Appeals erred in holding that a presumption of compensability does not apply when an employee dies within the course and scope of employment and the cause of death is unknown. Pickrell v. Motor Convoy, Inc., 322 N.C. 363, 368 S.E.2d 582 (1988).

Where claimant is entitled to rely on the presumption of compensability, the defendant must come forward with some evidence that death occurred as a result of a noncompensable cause; otherwise, the claimant prevails. 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. Pickrell v. Motor Convoy, Inc., 322 N.C. 363, 368 S.E.2d 582 (1988).

Plaintiff was entitled to rely on a presumption of compensability, where the undisputed evidence indicated that plaintiff 's decedent died while acting within the course and scope of his employment, and no evidence indicated decedent died other than by accident. Pickrell v. Motor Convoy, Inc., 322 N.C. 363, 368 S.E.2d 582 (1988).

Medical Compensation. - Even though the Industrial Commission found the functional capacity evaluation (FCE) was not medical compensation, the Commission properly concluded that defendants'; motion to compel a FCE was not unreasonable as defendants reasonably acted within their statutory rights after treatments and claims of lack of pain to determine the status of the claimant's compensable shoulder injury; thus, the Commission properly concluded an award of attorney's fees in favor of the claimant was not allowed. Richardson v. Goodyear Tire & Rubber Co., - N.C. App. - , - S.E.2d - (June 1, 2021).

Payment of medical or hospital expenses constitutes no part of compensation to an employee or his dependents under the provisions of the act. Whitted v. Palmer-Bee Co., 228 N.C. 447, 46 S.E.2d 109 (1948). See Thompson v. Virginia & C.S.R.R., 216 N.C. 554, 6 S.E.2d 38 (1939); Morris v. Laughlin Chevrolet Co., 217 N.C. 428, 8 S.E.2d 484 (1940).

Compensation must be based upon the loss of wage earning power rather than the amount actually received. Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 345 S.E.2d 374 (1986).

Calculation Based on Wages at Time of Diagnosis. - Plaintiff who was diagnosed with silicosis was entitled to compensation calculated based on his average weekly wage at the time he was diagnosed, not at the time of his last exposure or at the time he was "removed from the industry". Moore v. Standard Mineral Co., 122 N.C. App. 375, 469 S.E.2d 594 (1996).

A finding of maximum medical improvement is not the equivalent of a finding that the employee is able to earn the same wage earned prior to injury; the maximum medical improvement finding is solely the prerequisite to determination of the amount of any permanent disability for purposes of G.S. 97-31. Watson v. Winston-Salem Transit Auth., 92 N.C. App. 473, 374 S.E.2d 483 (1988).

Claimant Entitled to Benefits For Expenses Arising Out of Cesarean Section. - Workers' Compensation claimant was entitled to benefits for expenses arising out of cesarean section surgery in light of evidence that claimant's weakened back, which necessitated the surgery, was solely the result of an initial compensable injury; claimant's pregnancy was not an independent intervening cause attributable to claimant's own intentional conduct even though the pregnancy occurred subsequent to the compensable injury. English v. J.P. Stevens & Co., 98 N.C. App. 466, 391 S.E.2d 499 ( 1990).

A permanently and totally disabled employee is entitled to receive compensation under G.S. 97-29. This is true even though no single injury of claimant resulted in total and permanent disability, so long as the combined effect of all of the injuries caused permanent and total disability. Fleming v. K-Mart Corp., 312 N.C. 538, 324 S.E.2d 214 (1985).

Employer could be ordered, under N.C. Gen. Stat. § 97-29, to pay to rent handicapped accessible housing for a quadriplegic employee because: (1) the employee had no home that could be renovated; (2) the employer had paid to house the employee in a skilled nursing or long-term care facility; and (3) such facilities were not in the employee's medical best interest. Tinajero v. Balfour Beatty Infrastructure, Inc., 233 N.C. App. 748, 758 S.E.2d 169 (2014).

Partially Disabled Employee Held Entitled to Difference Between Wage Paid by Employer and Wage Received Thereafter. - Where the evidence tended to show that plaintiff was permanently partially disabled by reason of occupational disease and that after failing to obtain employment in the cotton textile industry in which he had been employed for 29 years, the plaintiff made an earnest and highly commendable search for other employment, and was able to obtain a permanent job with a restaurant at the minimum wage but was released from that employment only because business conditions resulted in the restaurant going out of business, the Commission was required to enter an award setting the plaintiff 's compensation at two-thirds of the difference between his average wage of $196.91 a week while working for the defendant and the minimum wage of $134.00 a week which he received thereafter, an award of $41.94 per week, not to exceed 300 weeks. Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 345 S.E.2d 374 (1986).

Offsetting Sickness and Disability Plan Payments Against Compensation. - Since the wage payments under employee Sickness and Disability Plan belonged to claimant, using them to offset employer's obligations to pay her compensation for other weeks is not authorized by G.S. 97-42 and would be confiscatory if it was. But though the wage payments were hers, offsetting them against compensation awarded her for the same weeks is authorized for two reasons: First, no compensation is due claimant for the weeks that her wages were paid because disability under the Workers' Compensation Act is based upon decreased earnings, and she had sustained no wage loss; and second, the claimant cannot collect workers' compensation for the weeks that her wages were paid because of the policy against employees receiving duplicating payments at the employers' expense. Evans v. AT & T Technologies, 103 N.C. App. 45, 404 S.E.2d 183, rev'd, 332 N.C. 78, 418 S.E.2d 503 (1992).

Determination of Compensation for Former Employee Diagnosed with Asbestosis. - Since the North Carolina General Assembly has made no specific provision for determining compensation pursuant to G.S. 97-64 when a former employee is diagnosed with asbestosis some time after his removal from the employment, the only statutory provision which was in fairness to be used was the "final method," contained in the second full paragraph of G.S. 97-2(5). Abernathy v. Sandoz Chems./Clariant Corp., 151 N.C. App. 252, 565 S.E.2d 218 (2002), cert. denied, 356 N.C. 432, 572 S.E.2d 421 (2002).

North Carolina Industrial Commission properly ordered an employer to pay for prescription expenses as part of the compensation awarded to an employee disabled as a result of asbestos exposure because the employee's treating physician testified that there was no federally approved medication specifically designed to treat asbestosis and that the employee was being treated with medication approved to treat the symptoms of obstructive lung disease and to improve overall lung functioning; based on that testimony, there was competent evidence in the record to support the Commission's finding that plaintiff's prescription medications provided some relief to plaintiff by improving his overall lung functioning, thus, it was proper for the Commission to have ordered the employer to pay for the medications. Bolick v. ABF Freight Sys., 188 N.C. App. 294, 654 S.E.2d 793 (2008), cert. denied, 362 N.C. 233, 659 S.E.2d 436 (2008), review denied, 362 N.C. 355, 661 S.E.2d 242 (2008).

Workers' compensation claimant was not entitled to reimbursement of the cost of heating her home pool under G.S. 97-25 because such compensation was not considered "medical compensation" under G.S. 97-2(19) because the claimant did not show that she was entitled to pool maintenance reimbursement rather than reimbursement for treatment at a center that provided pool therapy; further, although pool therapy was a compensable medical treatment, the record did not support a minimum of five days per week of pool therapy as there was no finding that a doctor had prescribed a minimum of five sessions a week. Winders v. Edgecombe County Home Health Care, 187 N.C. App. 668, 653 S.E.2d 575 (2007).

Compensation for Lawn Services Prohibited. - North Carolina Industrial Commission's factual findings supported its conclusion that although a workers' compensation claimant should refrain from mowing the claimant's lawn due to the claimant's medical condition, the lawn care services were ordinary life expenses that were not included in medical compensation under G.S. 97-2(19) and G.S. 97-25; providing the claimant with the resources to comply with a restrictive covenant as to yard upkeep on the claimant's property was not "other treatment." Scarboro v. Emery Worldwide Freight Corp., 192 N.C. App. 488, 665 S.E.2d 781 (2008).

Attendant Services. - Competent medical evidence supported a determination under G.S. 97-2(19) that attendant services were necessary for an employee, who suffered from a back injury, because the record showed that she was unable to care for herself and needed assistance in dressing, bathing, preparing meals, and performing various household duties. Boylan v. Verizon Wireless, 201 N.C. App. 81, 685 S.E.2d 155 (2009).

There was sufficient competent evidence to support the factual findings of the North Carolina Industrial Commission with respect to the compensation rate awarded for plaintiff's attendant care pursuant to G.S. 97-2(19), 97-25, and 97-25.1, although such care was provided by plaintiff's daughter, who was unskilled; the compensation rate was deemed reasonable, even though the evidence only addressed compensation rates for professional caregivers. Boylan v. Verizon Wireless, 224 N.C. App. 436, 736 S.E.2d 773 (2012).

Injured employee's wife could be compensated for the attendant care she provided the employee even before the North Carolina Industrial Commission approved her rendering that service, contrary to the Commission's Medical Fee Schedule, because such care was medical compensation within the meaning of G.S. 97-2(19), for which the employer was responsible under G.S. 97-25, and the approval requirement exceeded the Commission's power. Mehaffey v. Burger King, 367 N.C. 120, 749 S.E.2d 252 (2013).

Statute, as written, allows attendant care services only where such services have been determined medically necessary by a health care provider authorized by the employer, and thus cannot be based only upon "a variety of evidence" including testimony of the claimant or the claimant's family member, or the very nature of the injury. Thompson v. Int'l Paper Co., 251 N.C. App. 697, 795 S.E.2d 615 (2017).

North Carolina Industrial Commission erred in its findings and conclusions of law regarding the attendant care services a wife provided to an employee after a certain date because attendant care had to be prescribed by a health care provider, and the employee's physicians agreed he would continue to need attendant care; there was no need for a written prescription because a doctor directed that the employee continue to receive attendant care, and a burn center oversaw the care. Thompson v. Int'l Paper Co., 251 N.C. App. 697, 795 S.E.2d 615 (2017).

It was no error to award an employee attendant care compensation because (1) a physician's testimony supported a finding that the services were medically necessary, and (2) the testimony of the employee's mother supported a finding that the services were reasonable, so the findings were conclusive on appeal. Reed v. Carolina Holdings, Wolseley Mgmt., 251 N.C. App. 782, 796 S.E.2d 102 (2017), appeal dismissed, 2019 N.C. App. LEXIS 332 (2019).

Education Expenses. - North Carolina Industrial Commission did not abuse its discretion in denying reimbursement of an employee's educational expenses because there were no findings or evidence in the record showing that any medical or rehabilitative professional recommended the employee's educational pursuits as part of a rehabilitation plan or that those educational pursuits were reasonably necessary to effect a cure, give relief, or will lessen a claimant's period of disability. Silva v. Lowes Home Improvement, 239 N.C. App. 175, 768 S.E.2d 180 (2015).

Accounting Fees. - North Carolina Industrial Commission did not err in denying reimbursement of an employee's accounting fees because there was no evidence presented that the accounting fees were part of any life care plan nor was there testimony or evidence from a medical or rehabilitative specialist stating that the expense was medically necessary because of the employee's specific injuries. Silva v. Lowes Home Improvement, 239 N.C. App. 175, 768 S.E.2d 180 (2015).

Form 22 Unnecessary Where Commission Denied Request for Indemnity Compensation. - Because the North Carolina Industrial Commission's findings were sufficient to address all matters in controversy, a Form 22 was used for wage calculation upon the grant of indemnity compensation, and the Commission denied the claimant's request for indemnity compensation, a Form 22 was not necessary pursuant to the Commission's award, and the claimant was not entitled to a specific finding regarding defendants' failure to submit a Form 22. Patillo v. Goodyear Tire & Rubber Co., 251 N.C. App. 228, 794 S.E.2d 906 (2016).

XX. CHILD, GRANDCHILD, ETC.

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Effect of Subdivision (12) on G.S. 97-40. - The doctrine of pari materia does not apply and the provisions of G.S. 97-40 should not be construed with the provisions of subdivision (12) of this section. Stevenson v. City of Durham, 281 N.C. 300, 188 S.E.2d 281 (1972).

The imposition of the restrictions of dependency and age contained in subdivision (12) of this section upon G.S. 97-40 would result in a narrow and technical interpretation of the act. Stevenson v. City of Durham, 281 N.C. 300, 188 S.E.2d 281 (1972).

The dependency which this statute recognizes as the basis of the right of the child to compensation grows out of the relationship, which in itself imposes upon the father the duty to support the child, and confers upon the child the right to support by its father. The status of the child, social or legal, is immaterial. Lippard v. Southeastern Express Co., 207 N.C. 507, 177 S.E. 801 (1935); Hewett v. Garrett, 274 N.C. 356, 163 S.E.2d 372 (1968).

Illegitimate Child. - Subdivision (12) of this section recognizes a distinction between actual and legal dependency. A legal dependence is sufficient, and the law fixes that type of responsibility on the father of an illegitimate child. Hewett v. Garrett, 274 N.C. 356, 163 S.E.2d 372 (1968).

The philosophy of the common law, which denied an illegitimate child any rights, legal or social, as against its father, and imposed no duty upon the father with respect to the child, is discarded by this statute. Hewett v. Garrett, 274 N.C. 356, 163 S.E.2d 372 (1968).

When an illegitimate child qualifies as a child, this status, for compensation purposes, continues until the child becomes 18 years of age or unless she marries before reaching that age. Hewett v. Garrett, 274 N.C. 356, 163 S.E.2d 372 (1968).

To qualify for survivor's benefits under the act, an illegitimate child must be acknowledged in sufficient fashion by the father. Tucker v. City of Clinton, 120 N.C. App. 776, 463 S.E.2d 806 (1995).

Posthumous Illegitimate Child. - Deceased supported a housekeeper who bore him a posthumous illegitimate child. The Supreme Court reversed the Commission's opinion that the child was not a dependent. Lippard v. Southeastern Express Co., 207 N.C. 507, 177 S.E. 801 (1935).

How Child Acknowledged. - The word "acknowledged," referring to illegitimate children under this section, is not a term of art requiring a formal declaration before an authorized official; in regard to paternity actions, the term "acknowledgment" generally has been held to mean the recognition of a parental relation, either by written agreement, verbal declarations or statements, by the life, acts, and conduct of the parties, or any other satisfactory evidence that the relation was recognized and admitted. Carpenter v. Hawley, 53 N.C. App. 715, 281 S.E.2d 783, cert. denied and appeal dismissed, 304 N.C. 587, 289 S.E.2d 564 (1981).

The wholly dependent provision of subdivision (12) applies only in case of married children. It does not apply to acknowledged illegitimate children or other children who are unmarried and who are under 18. Hewett v. Garrett, 274 N.C. 356, 163 S.E.2d 372 (1968).

Married children must be "wholly" dependent. Winstead v. Derreberry, 73 N.C. App. 35, 326 S.E.2d 66 (1985).

Stepchildren. - Stepchildren must be substantially dependent upon the deceased employee. This result is derived from the wording of the various dependency tests employed by the act. Winstead v. Derreberry, 73 N.C. App. 35, 326 S.E.2d 66 (1985).

The substantial dependency standard is a question of fact to be determined under the facts of each case, the burden of proof being on the stepchild under the evidentiary standards normally employed in workers' compensation cases. The factors to be considered are the actual amount and consistency of the support derived by the stepchild from (1) the deceased stepparent, (2) the natural parent married to the stepparent, (3) the estranged natural parent, whether such support is voluntary or required by law, (4) the income of the stepchild, and (5) any other funds regularly received for the support of the stepchild. Winstead v. Derreberry, 73 N.C. App. 35, 326 S.E.2d 66 (1985).

Person over 18 Not Considered a Child. - Subdivision (12) of this section defines a person over 18 at the time of his father's death as not a child. Stevenson v. City of Durham, 12 N.C. App. 632, 184 S.E.2d 411 (1971), rev'd on other grounds, 281 N.C. 300, 188 S.E.2d 281 (1972).

Legal Adoption Incomplete. - Where adoption proceedings had begun but were not finalized, the minor plaintiff was not a child legally adopted prior to the injury of the employee. Lennon v. Cumberland County, 119 N.C. App. 319, 458 S.E.2d 240 (1995).

XXI. WIDOW AND WIDOWER.

.

Presumption of Dependency. - By statute, a widow is conclusively presumed to be wholly dependent for support upon the deceased employee, and shall receive benefits under the Workers' Compensation Act. Rogers v. University Motor Inn, 103 N.C. App. 456, 405 S.E.2d 770 (1991).

To qualify as the "widow" under the act, the surviving wife must have been living with husband at time of death; if not, it must have been for justifiable cause or by reason of his desertion at such time. Jones v. Service Roofing & Sheet Metal Co., 63 N.C. App. 772, 306 S.E.2d 460 (1983).

By using the word "or" before the second of the three listed methods in which a person can qualify as a widow under G.S. 97-39, the General Assembly intended that a wife can qualify as a widow if she is actually dependent on decedent whether or not living with him, and in method three, she qualifies if she is living apart for justifiable cause or desertion, whether or not dependent; accordingly, where evidence in the record before the Industrial Commission showed that a widow was dependent on the deceased employee for support, that she was a responsible person and was competent with money, she should have been found to be his widow under G.S. 97-2(14) and granted benefits. Goodrich v. R.L. Dresser, Inc., 161 N.C. App. 394, 588 S.E.2d 511 (2003).

"Justifiable Cause" for Living Separate and Apart. - A husband and wife are not living separate and apart for "justifiable cause" if they are living separate and apart as a result of a mutual agreement evidenced by a legally executed separation agreement. Bass v. Mooresville Mills, 11 N.C. App. 631, 182 S.E.2d 246 (1971); Sloop v. Williams Exxon Serv., 24 N.C. App. 129, 210 S.E.2d 111 (1974).

If a separation agreement is in full force and effect at the time of the employee's death, the employee and his wife are, as a matter of law, living separate and apart by mutual consent, which is not "justifiable cause" within the meaning of this section. Bass v. Mooresville Mills, 11 N.C. App. 631, 182 S.E.2d 246 (1971).

While "justifiable cause" is usually equated to some form of marital misconduct, it would also seem to be applicable where the separation is not intended by the parties to be permanent, the temporary living apart being merely for reasons of convenience. Bass v. Mooresville Mills, 11 N.C. App. 631, 182 S.E.2d 246 (1971).

There is authority in other jurisdictions to the effect that "justifiable cause," as that term is employed in statutory provisions similar to subdivision (14) of this section, may not be interpreted as applicable to separations by mutual consent. Bass v. Mooresville Mills, 11 N.C. App. 631, 182 S.E.2d 246 (1971); Sloop v. Williams Exxon Serv., 24 N.C. App. 129, 210 S.E.2d 111 (1974).

There is no specific formula for the definition of "justifiable cause" under the statute. A court must consider the complexity and history of the particular relationship in order to determine whether the marital partners were separated for justifiable cause in the months before the death of a recipient of benefits. Rogers v. University Motor Inn, 103 N.C. App. 456, 405 S.E.2d 770 (1991).

Adultery. - A wife's adulterous affair did not bar her from qualifying as her husband's widow under subdivision (14) of this section and G.S. 97-39. Rogers v. University Motor Inn, 103 N.C. App. 456, 405 S.E.2d 770 (1991).

It is not within the authority of courts to create an exception to subdivision (14) of this section and G.S. 97-39 based upon adultery by a spouse. To find that the legislature intended such an exception, it must be apparent in the statute. Rogers v. University Motor Inn, 103 N.C. App. 456, 405 S.E.2d 770 (1991).

Surrender of Right to Support. - There is no reason why a separated wife who has surrendered all right to look to the husband for support while he is living should, upon his death, receive benefits that are intended to replace in part the support which the husband was providing, or should have been providing. Bass v. Mooresville Mills, 11 N.C. App. 631, 182 S.E.2d 246 (1971); Sloop v. Williams Exxon Serv., 24 N.C. App. 129, 210 S.E.2d 111 (1974).

Right to Compensation if Living Apart for Mutual Convenience. - If the living apart of the husband and wife is merely for the mutual convenience or the joint advantage of the parties and the obligation of the husband to support her is recognized, the right of the wife to compensation exists as though they were living together. Bass v. Mooresville Mills, 11 N.C. App. 631, 182 S.E.2d 246 (1971).

A second or subsequent marriage is presumed legal until the contrary is proven, and the burden of the issue is upon a plaintiff who attempts to establish a property right which is dependent upon the invalidity of such a marriage. The plaintiff cannot recover because of the failure of defendant to carry the burden. Kearney v. Thomas, 225 N.C. 156, 33 S.E.2d 871 (1945); Ivory v. Greer Bros., 45 N.C. App. 455, 263 S.E.2d 290 (1980).

Whether Presumption of Subsequent Marriage's Validity Is Overcome Is Question of Fact. - The question of whether the first wife of a deceased employee had overcome the presumption of the validity of a subsequent marriage was a question of fact for the commission. Ivory v. Greer Bros., 45 N.C. App. 455, 263 S.E.2d 290 (1980).

Divorce and Remarriage in Another State. - On the conflict of laws question where there has been a divorce and remarriage in another state, and a subsequent controversy develops as to which is the "widow," see Rice v. Rice, 336 U.S. 674, 69 S. Ct. 751, 93 L. Ed. 957 (1949). And see 28 N.C.L. Rev. 265 (1950).

Opinions of Attorney General

As to the right of a city policeman injured outside the corporate limits while chasing a motorist to compensation under the act, see opinion of Attorney General to Mr. Everette L. Doffermyre, Dunn City Attorney, 40 N.C.A.G. 181 (1969).

"Employee" Does Not Include Person on Suspended Sentence Who Is Not a Prisoner. - See opinion of Attorney General to Honorable Gilbert H. Burnett, 41 N.C.A.G. 398 (1971).

I. IN GENERAL.

Editor's Note. - Several of the cases cited below were decided under former G.S. 97-10.

Legislative History. - For case reviewing the legislative history of this section, see Hogan v. Johnson Motor Lines, 38 N.C. App. 288, 248 S.E.2d 61 (1978), cert. denied, 296 N.C. 411, 251 S.E.2d 469 (1979).

Legislative Intent. - Subsection (j) allows plaintiff double recovery at expense of employer or carrier, in discretion of superior court judge. Since language is clear and unambiguous, the legislature intended this possible result. Allen v. Rupard, 100 N.C. App. 490, 397 S.E.2d 330 (1990), appeal withdrawn, 328 N.C. 328, 404 S.E.2d 864 (1992), citing Pollard v. Smith, 90 N.C. App. 585, 369 S.E.2d 84 (1988), rev'd on other grounds, 324 N.C. 424, 378 S.E.2d 771 (1989).

Absent extenuating circumstances, the Worker's Compensation Act in general and this section specifically were never intended to provide the employee with a windfall of a recovery from both the employer and the third-party tortfeasor. Radzisz v. Harley Davidson of Metrolina, Inc., 346 N.C. 84, 484 S.E.2d 566 (1997).

In granting a trial court the discretion to determine subrogation amounts in workers' compensation cases under G.S. 97-10.2(j) to facilitate settlement of third party claims, the legislature did not intend to undermine the authority of the Industrial Commission to do the same for workers' compensation claims. Holden v. Boone, 153 N.C. App. 254, 569 S.E.2d 711 (2002).

Public Policy. - Trial court did not err by concluding that pursuant to G.S. 97-10.2(e) a steamroller driver's employer was not entitled to recover on its workers' compensation lien from a judgment awarded to the driver following a collision. G.S. 97-10.2(e) evidenced a strong public policy of prohibiting a negligent employer from recouping any workers' compensation benefits paid to an injured employee, and the General Assembly intended for G.S. 97-10.2(e) to apply even in cases where the issue of last clear chance had been submitted to the jury and the jury had answered this question in the affirmative. Outlaw v. Johnson, 190 N.C. App. 233, 660 S.E.2d 550 (2008).

Subsection (j) Held Constitutional. - Subsection (j) of this section does not violate "Law of the Land" clause of N.C. Const., Art. I, § 19, and is not unconstitutionally vague. Allen v. Rupard, 100 N.C. App. 490, 397 S.E.2d 330 (1990), appeal withdrawn, 328 N.C. 328, 404 S.E.2d 864 (1992).

Discretion given trial court by subsection (j) of this section does not violate United States or North Carolina Constitution. Allen v. Rupard, 100 N.C. App. 490, 397 S.E.2d 330 (1990), appeal withdrawn, 328 N.C. 328, 404 S.E.2d 864 (1992).

This section is not unconstitutionally vague or violative of due process. In re Biddix, 138 N.C. App. 500, 530 S.E.2d 70 (2000), cert. denied, 352 N.C. 674, 545 S.E.2d 418 (2000).

Trial court did not abuse its discretion in extinguishing county's subrogation lien against a deputy sheriff regarding a settlement that he received following an injury in the course of his employment because G.S. 97-10.2(j) did not violate the Exclusive Emoluments Clause of N.C. Const., Art. I, § 32. Helsius v. Robertson, 174 N.C. App. 507, 621 S.E.2d 263 (2005), appeal dismissed, review denied, 360 N.C. 363, 629 S.E.2d 851, recons. denied, 360 N.C. 533, 633 S.E.2d 815 (2006).

Purpose of Section. - Manifestly, the statute was designed primarily to secure prompt and reasonable compensation for an employee, and at the same time to permit an employer or his insurance carrier, who has made a settlement with the employee, to recover the amount so paid from a third party causing the injury to such employee. The statute was not designed as a city of refuge for a negligent third party. Brown v. Southern Ry., 204 N.C. 668, 169 S.E. 419 (1933).

Section Does Not Apply to Injuries Occurring Prior to June 20, 1959. - This section and G.S. 97-10.1 do not apply to an injury which occurred prior to June 20, 1959, the effective date of those statutes. Swaney v. George Newton Constr. Co., 5 N.C. App. 520, 169 S.E.2d 90 (1969).

Choice of Law. - Pursuant to this section it is sound public policy of North Carolina to provide for a right of action on behalf of an injured employee against a third party tortfeasor (even a fellow subcontractor) and even though the injured employee applied for and received workers' compensation benefits. Virginia law which violated this policy was not applied even though injury occurred in Virginia. Braxton v. Anco Elec., Inc., 100 N.C. App. 635, 397 S.E.2d 640 (1990), aff'd, 330 N.C. 124, 409 S.E.2d 914 (1991).

Where plaintiff sought and received workers' compensation benefits pursuant to the North Carolina Workers' Compensation Act for an injury received in Virginia and caused by a third-party subcontractor, and, inter alia, North Carolina was the place of plaintiff's residence, the location of defendant's business, and the place of the initial hiring, North Carolina had significant interests in applying its own law based on the employment relationship and its connection with North Carolina. Braxton v. Anco Elec., Inc., 100 N.C. App. 635, 397 S.E.2d 640 (1990), aff'd, 330 N.C. 124, 409 S.E.2d 914 (1991).

Where all the parties were North Carolina citizens; the plaintiff's contract of employment and the contracts giving rise to the workers' compensation coverage were signed in North Carolina; and the plaintiff was receiving benefits under our workers' compensation statute, North Carolina's interests in implementing the protections afforded by its statute were paramount. An employee's temporary presence in Virginia so as to carry out his employment contract did not strip him of the rights he otherwise enjoyed under the North Carolina workers' compensation statute with regard to the breadth of North Carolina's exclusive remedy bar on common law actions in tort. Braxton v. Anco Elec., Inc., 330 N.C. 124, 409 S.E.2d 914 (1991).

Plaintiff's request to reduce or eliminate defendants' workers' compensation lien on funds plaintiff received from South Carolina underinsured motorist (UIM) coverage was properly denied because plaintiff sought reduction or elimination of the subrogation lien pursuant to G.S. 97-10.2(j), which was remedial in nature and remedial rights were determined by the law of the forum; although South Carolina law, S.C. Code Ann. § 38-77-160, would not have allowed a lien on such funds, North Carolina law applied, and North Carolina did not have a statute which prevented subrogation of UIM funds. Anglin v. Dunbar Armored, Inc., 226 N.C. App. 203, 742 S.E.2d 205 (2013).

Virginia Law Compared. - North Carolina Workers' Compensation Act provides for a right of action on behalf of an injured employee against a third party even though the injured party applied for and received workers' compensation benefits. In contrast, Virginia law prohibits a similar right of action. Braxton v. Anco Elec., Inc., 100 N.C. App. 635, 397 S.E.2d 640 (1990), aff'd, 330 N.C. 124, 409 S.E.2d 914 (1991).

This section applies only to persons who are strangers to the employment and negligently cause an injury. Andrews v. Peters, 55 N.C. App. 124, 284 S.E.2d 748 (1981), cert. denied, 305 N.C. 395, 290 S.E.2d 364 (1982).

And Is Inapplicable to Negligent Employee. - This section, which provides for actions against "some person other than the employer," has been held inapplicable to the negligent employee. Andrews v. Peters, 55 N.C. App. 124, 284 S.E.2d 748 (1981), cert. denied, 305 N.C. 395, 290 S.E.2d 364 (1982).

The enactment of subsection (e) of this section evidences a strong public policy in North Carolina of prohibiting a negligent employer from recouping any workers' compensation benefits paid to an injured employee. Geiger v. Guilford College Community Volunteer Firemen's Ass'n, 668 F. Supp. 492 (M.D.N.C. 1987).

Subsection (e) represents a codification of the holding in Brown v. Southern Ry., 204 N.C. 668, 169 S.E. 419 (1933). Geiger v. Guilford College Community Volunteer Firemen's Ass'n, 668 F. Supp. 492 (M.D.N.C. 1987).

Subsection (e) delineates the rights between parties who are jointly liable for a tort: the employer under workers' compensation law and the third party under traditional tort law. Geiger v. Guilford College Community Volunteer Firemen's Ass'n, 668 F. Supp. 492 (M.D.N.C. 1987).

The provisions of subsection (e) govern in all actions by a plaintiff employee against a third party as a matter of North Carolina law, even where plaintiff has recovered workers' compensation under the workers' compensation laws of another state. Geiger v. Guilford College Community Volunteer Firemen's Ass'n, 668 F. Supp. 492 (M.D.N.C. 1987).

The doctrine of governmental immunity is inapplicable where a defendant alleges a municipality's negligence under subsection (e). Jackson v. Howell's Motor Freight, Inc., 126 N.C. App. 476, 485 S.E.2d 895 (1997), review denied, 347 N.C. 267, 493 S.E.2d 456 (1997).

Employee of Subcontractor May Maintain Action Against Main Contractor. - An employee of a subcontractor is not precluded by the Workers' Compensation Act from maintaining an action at common law against the main contractor for injuries resulting from alleged negligence on the part of the main contractor, since the action is not against plaintiff 's employer but against a third person. Cathey v. Southeastern Constr. Co., 218 N.C. 525, 11 S.E.2d 571 (1940); Tipton v. Barge, 243 F.2d 531 (4th Cir. 1957). See also Sayles v. Loftis, 217 N.C. 674, 9 S.E.2d 393 (1940). which held a principal contractor liable at common law as a third person for negligent injuries to employees of a subcontractor. And see G.S. 97-19, which enlarges the compensation responsibility of a principal contractor to the employees of subcontractors.

Employee Who Received Funds from Third Party Can Pursue Workers' Compensation Claim. - Court of appeals erred in reversing the Industrial Commission because its reliance on a prior case was misplaced since the provisions relating to claims against third-party tortfeasors were amended, and the prior decision was decided under the previous statute; the employee did not waive his right to compensation, and once the subrogation lien amount was determined by agreement or a superior court, the employer was entitled to reimbursement of its lien from the benefits due the employee. Easter-Rozzelle v. City of Charlotte, 370 N.C. 286, 807 S.E.2d 122 (2017).

Barring a plaintiff who has received funds from a third party from pursuing a workers' compensation claim contravenes the express language of subsection (i). Easter-Rozzelle v. City of Charlotte, 370 N.C. 286, 807 S.E.2d 122 (2017).

Employer's lien interest in third-party proceeds is mandatory in nature, and thus, there is no windfall of a recovery to a plaintiff when the defendant is entitled to recover the amount of its lien by means of a credit against the plaintiff's ongoing workers' compensation benefits; subsection (j) contains no temporal requirement, and either party may apply to the superior court judge to determine the amount of the defendant's lien. Easter-Rozzelle v. City of Charlotte, 370 N.C. 286, 807 S.E.2d 122 (2017).

No Conflict Between Subsection (f)(1)c and Former G.S. 28-173. - There is no conflict in the language in G.S. 28-173 (see now G.S. 28A-18-2), which prohibits use of the wrongful death recovery to pay a debt of the decedent, and the language in subsection (f)(1)c of this section, which directs that a portion of the recovery be applied to the reimbursement of the employer for benefits paid under award of the Industrial Commission. Byers v. North Carolina State Hwy. Comm'n, 3 N.C. App. 139, 164 S.E.2d 535 (1968), aff 'd, 275 N.C. 229, 166 S.E.2d 649 (1969).

Subsection (j) permitted superior court to adjust amount of a subrogation lien if the agreement between the parties was finalized so that only performance of the agreement was necessary to bind the parties; a trial court erred in holding that it lacked jurisdiction to reduce liens held by an employer and an insurer against a workers' compensation award. Childress v. Fluor Daniel, Inc., 172 N.C. App. 166, 615 S.E.2d 868 (2005).

Trial court did not lack subject matter jurisdiction to rule on an employee's motion for determination of an employer's lien on settlement funds pursuant to the Workers' Compensation Act, G.S. 97-10.2(j), because the settlement agreements reached between the employee and third parties were sufficient to give the trial court jurisdiction under G.S. 97-10.2(j); the settlement agreements had already been performed, and thus the settlement agreements were not subject to any conditions precedent and had already bound the parties. Kingston v. Lyon Constr., Inc., 207 N.C. App. 703, 701 S.E.2d 348 (2010).

The Workers' Compensation Act does not create two causes of action, one for the employee's estate and the other for the employer and insurance carrier. The right to bring action for damages for wrongful death is conferred by former G.S. 28-173 (see now G.S. 28A-18-2). The act merely governs the respective rights of the employee's estate, the employer and the insurance carrier to maintain an action for damages against third parties. Groce v. Rapidair, Inc., 305 F. Supp. 1238 (W.D.N.C. 1969).

Verdict to Be for Full Amount of Damages. - This section clearly contemplates that the action against the third party is to be tried on its merits as an action in tort, and that any verdict of the jury adverse to the third party is to declare the full amount of damages suffered by the employee on account of his injury, notwithstanding any award of payment of compensation to him under the provisions of the Workers' Compensation Act. Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886 (1953).

Trial court did not err in limiting interest allowed plaintiff to the interest on the amount of the jury award as reduced pursuant to this section. Absher v. Vannoy-Lankford Plumbing Co., 78 N.C. App. 620, 337 S.E.2d 877 (1985), cert. denied, 316 N.C. 730, 345 S.E.2d 385 (1986).

Employee Not Entitled to Interest on Amounts Reimbursable to Health Insurer. - Language "final award or unpaid portion thereof" in G.S. 97-86.2 does not include amounts of medical compensation for which the employee was indemnified by his health insurer and which were reimbursable to the health insurer because the legislative purpose was not to create a penalty to the employer nor a windfall for the employee; denial of an employee's claim for interest on amounts reimbursable to his health insurance carrier was proper. Sprinkle v. Lilly Indus., 193 N.C. App. 694, 668 S.E.2d 378 (2008), review denied, 363 N.C. 130, 673 S.E.2d 363 (2009).

Amount of Judgment. - Giving the statute its plain meaning requires the court to read the term "judgment" to mean just that, and to reject the argument that the court should look only at the insurance "proceeds" that a party is to receive, as opposed to the entire judgment, in determining the applicability of this section. Hieb v. Lowery, 121 N.C. App. 33, 464 S.E.2d 308 (1995), aff'd, 344 N.C. 403, 474 S.E.2d 323 (1996).

Appeal from Reduced Award. - Plaintiff was not a "party aggrieved" by judgment entered in superior court reducing her ultimate recovery to the difference between jury award and workers' compensation award pursuant to this section, so as to permit her appeal from such recovery. Absher v. Vannoy-Lankford Plumbing Co., 78 N.C. App. 620, 337 S.E.2d 877 (1985), cert. denied, 316 N.C. 730, 345 S.E.2d 385 (1986).

Reduction of defendants' lien was reversed because the findings in the order were insufficient to determine whether the court properly exercised its discretion or if it acted under a misapprehension of law when it reduced the amount of defendants' lien. Alston v. Fed. Express Corp., 200 N.C. App. 420, 684 S.E.2d 705 (2009).

Evidence of out-of-state worker's compensation payments is admissible in actions against third parties. Frugard v. Pritchard, 338 N.C. 508, 450 S.E.2d 744 (1994).

Supreme Court of Nevada held that proof of California workers' compensation payments could be admitted into evidence in a personal injury action in Nevada, because it served the primary purpose of Nev. Rev. Stat. § 616C.215(10) to avoid confusing the jury about the payment of workers' compensation benefits and their relation to the damages awarded. The Supreme Court of Nevada cited G.S. 97-10.2(e) and followed the uniform rule in North Carolina whereby evidence of out-of-state workers' compensation payments is admissible in actions against third parties. Tri-County Equip. & Leasing, LLC v. Klinke, 128 Nev. 352, 286 P.3d 593 (2012).

Interaction with Tort Claims Act. - Where the plaintiff was permanently injured while working on a silage harvesting machine operated by the Department of Correction (now Division of Adult Correction of the Department of Public Safety), and he filed a claim with the Industrial Commission under the Tort Claims Act, his claim was properly dismissed on the grounds that workers' compensation was plaintiff's exclusive remedy. Richardson v. North Carolina Dep't of Correction, 118 N.C. App. 704, 457 S.E.2d 325 (1995), cert. granted, 341 N.C. 652, 461 S.E.2d 772 (1995), aff'd, 345 N.C. 128, 478 S.E.2d 501 (1996).

Employers May Not Recover Benefits Paid. - The employer was not entitled to a lien on the settlement proceeds in order to recoup the payments which it made to the employee although it was free from culpability with respect to the accident in which employee was injured. In re Biddix, 138 N.C. App. 500, 530 S.E.2d 70 (2000), cert. denied, 352 N.C. 674, 545 S.E.2d 418 (2000).

Attorney's malpractice in failing to timely file a third-party tort action was not an injury under G.S. 97-2(6) for purposes of an employer's right of subrogation and the employer, therefore, had no subrogation rights under G.S. 97-10.2(h) with respect to the proceeds of the employee's legal malpractice claim. Grant Constr. Co. v. McRae, 146 N.C. App. 370, 553 S.E.2d 89 (2001).

The superior court's determination that the lien be reduced in its entirety was factually supported and a proper, constitutional exercise of its discretion. The court made findings with respect to the extent of the employee's injuries - her ongoing pain and suffering, her medical expenses as paid by the employer, her compensation for temporary disability, as well as the amount of the settlement and the fact that the third party tortfeasor had no additional assets from which she could recover - and concluded that the amount of the settlement inadequately compensated plaintiff for her injuries. In re Biddix, 138 N.C. App. 500, 530 S.E.2d 70 (2000), cert. denied, 352 N.C. 674, 545 S.E.2d 418 (2000).

It was not an abuse of discretion for a trial court to reduce an employer's lien against an employee's settlement with a third-party tortfeasor to zero because (1) the court did not have to first determine that the settlement was insufficient to compensate the employer for workers' compensation benefits the employer paid before the court could exercise the court's discretion to determine the amount of the employer's lien, and (2) the evidence allowed the court to find that the settlement and the workers' compensation benefits did not fully compensate the employee for the employee's pain, suffering, and other losses. Leggett v. AAA Cooper Transp., Inc., 198 N.C. App. 96, 678 S.E.2d 757 (2009).

Trial court did not abuse its discretion in reducing an employer's lien on settlement funds to zero because the findings of fact evidenced the trial court's thorough consideration of the necessary statutory factors contained in the Workers' Compensation Act, G.S. 97-10.2(j), and amply supported its conclusion that the employer's lien on an employee's settlements had to be reduced to zero; possibility of future settlements did not impair the trial court's consideration of the net recovery from the present settlements or impair its ability to balance the equities in making its determination. Kingston v. Lyon Constr., Inc., 207 N.C. App. 703, 701 S.E.2d 348 (2010).

Trial court had jurisdiction to determine amount of a workers' compensation lien and to distribute the third party recovery pursuant to this section, where the insurer was a "third party" in that plaintiff's injury was "caused under circumstances creating a liability in some person . . . to pay damages therefor," and where a settlement, albeit contested by the employer, existed between plaintiff and the third party, the insurer. Levasseur v. Lowery, 139 N.C. App. 235, 533 S.E.2d 511 (2000), cert. denied, in part, 352 N.C. 675, 545 S.E.2d 426 (2000), aff'd, 353 N.C. 358, 543 S.E.2d 476 (2001).

Employers Limited to Recovery of Benefits Paid. - The full provisions of this section reveal a statutory scheme whereby employers are limited to recovery of benefits they have paid to an employee. M.B. Haynes Corp. v. Strand Electro Controls, Inc., 127 N.C. App. 177, 487 S.E.2d 819 (1997).

Applied in Sheppard v. Zep Mfg. Co., 114 N.C. App. 25, 441 S.E.2d 161 (1994); Martinez v. Lovette, 121 N.C. App. 712, 468 S.E.2d 251 (1996); Tise v. Yates Constr. Co., 345 N.C. 456, 480 S.E.2d 677 (1997); Horton v. Powell Plumbing & Heating of N.C. Inc., 135 N.C. App. 211, 519 S.E.2d 550 (1999).

Cited in Ray v. French Broad Elec. Membership Corp., 252 N.C. 380, 113 S.E.2d 806 (1960); Young v. Baltimore & O.R.R., 266 N.C. 458, 146 S.E.2d 441 (1966); Bowen v. Iowa Nat'l Mut. Ins. Co., 270 N.C. 486, 155 S.E.2d 238 (1967); Thrift v. Trethewey, 272 N.C. 692, 158 S.E.2d 777 (1968); Warren v. Parks, 31 N.C. App. 609, 230 S.E.2d 684 (1976); Raines v. Thompson, 62 N.C. App. 752, 303 S.E.2d 413 (1983); Barrino v. Radiator Specialty Co., 315 N.C. 500, 340 S.E.2d 295 (1986); Higgins v. Simmons, 324 N.C. 100, 376 S.E.2d 449 (1989); Hieb v. Lowery, 344 N.C. 403, 474 S.E.2d 323 (1996); Tinch v. Video Indus. Servs., Inc., 347 N.C. 380, 493 S.E.2d 426 (1997); Whaley v. White Consol. Indus., Inc., 144 N.C. App. 88, 548 S.E.2d 177 (2001); Holden v. Boone, 153 N.C. App. 254, 569 S.E.2d 711 (2002); Austin v. Midgett, 159 N.C. App. 416, 583 S.E.2d 405 (2003); Cross v. Falk Integrated Techs., Inc., 190 N.C. App. 274, 661 S.E.2d 249 (2008); One Beacon Ins. Co. v. United Mech. Corp., 207 N.C. App. 483, 700 S.E.2d 121 (2010); Lewis v. Transit Mgmt. of Charlotte, 250 N.C. App. 619, 792 S.E.2d 890 (2016).

II. RESPECTIVE LIABILITY OF THIRD PARTY, EMPLOYER AND CARRIER.

Section Governs Rights to Sue Third Persons. - This section governs the respective rights of the employee, the employer, and the employer's insurance carrier to maintain actions for damages against third parties; that is, persons other than the employer and those conducting his business. Bryant v. Dougherty, 267 N.C. 545, 148 S.E.2d 548 (1966).

Third Party Responsible for Total Pecuniary Loss. - The third party whose negligence caused the death may be held responsible for the total pecuniary loss to the estate. Byers v. North Carolina State Hwy. Comm'n, 275 N.C. 229, 166 S.E.2d 649 (1969).

Action against Third Party Does Not Abate upon Making of Award Under the Act. - Where an award is made under the act after an action at law has been begun by the employee's representative against the third party, such an action does not abate. Phifer v. Berry, 202 N.C. 388, 163 S.E. 119 (1932).

No Cause of Action to Recover Increased Insurance Costs. - An employer whose workers' compensation insurance premiums have risen as the result of an employee's injury by a third party may not maintain a cause of action against the third party to recover its increased insurance costs. M.B. Haynes Corp. v. Strand Electro Controls, Inc., 127 N.C. App. 177, 487 S.E.2d 819 (1997).

Subsection (j) of this section must be read in pari materia with the rest of this section, and the legislature intended that the procedure for settling a case, as described in other parts of this section, be followed when settling a matter pursuant to subsection (j). Pollard v. Smith, 324 N.C. 424, 378 S.E.2d 771 (1989).

As the employer is not a joint tortfeasor, and thus an acceptance of an award against said employer for compensation would not discharge a third person whose negligence had contributed to the injury or death of the employee. Betts v. Southern Ry., 71 F.2d 787 (4th Cir. 1934).

Where deceased is killed as a result of the concurring negligence of his employer and a third party, the employer is not a joint tortfeasor who may be made a party defendant at the instance of the negligent third party. Brown v. Southern Ry., 202 N.C. 256, 162 S.E. 613 (1932); Essick v. City of Lexington, 232 N.C. 200, 60 S.E.2d 106 (1950).

Nor May Third Person Hold Employer for Contribution or Indemnity. - Third party, who was sued for damages for negligently inflicting a compensable injury upon an employee, could not hold the employer liable for contribution under the statute embodied in former G.S. 1-240 (see now G.S. 1B-1) or for indemnity under the doctrine of primary and secondary liability, even when the injury was the result of the joint or concurrent negligence of the employer and the third person. Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886 (1953); Johnson v. United States, 133 F. Supp. 613 (E.D.N.C. 1955).

Since it relieves the employer of liability to his injured employee as a tortfeasor, the Workers' Compensation Act abrogates both the statutory right of a negligent third party to claim contribution from a negligent employer in equal fault, and the common-law right of a passively negligent third party to demand indemnity from an actively negligent employer. And this construction of the act is not invalidated by the mere circumstance that such construction may occasion hardship or injustice to a passively negligent third party. Hunsucker v. High Point Bending & Chair Co., 237 N.C. 559, 75 S.E.2d 768 (1953).

Unless There Is Express Contract of Indemnity Between Third Person and Employer. - If there is an express contract of indemnity between third party and employer providing against loss to third party arising from the negligence of the employer, the third party if sued for damages by the employee may bring in the employer for contribution or indemnity. Johnson v. United States, 133 F. Supp. 613 (E.D.N.C. 1955).

The Workers' Compensation Act provides that a third party shall have no right (other than to assert the joint or concurring negligence of the employer) "by way of contribution or otherwise against the employer, except any right which may exist by reason of an express contract of indemnity between the employer and the third party, which was entered into prior to the injury to the employee." Gibbs v. Carolina Power & Light Co., 265 N.C. 459, 144 S.E.2d 393 (1965).

This section recognizes the right of third parties to provide by contract with employers for indemnity against liability to employees for the consequences of their negligence and to enforce the contracts. Gibbs v. Carolina Power & Light Co., 265 N.C. 459, 144 S.E.2d 393 (1965).

Rights and Liabilities of Third Person Not Affected. - The insurance carrier who has paid compensation to an injured employee for which the employer was liable under this Chapter may maintain an action against a third person upon allegations that the negligence of such third person caused the injury, but the rights and liabilities of such third person are in nowise affected by the Chapter. Hinson v. Davis, 220 N.C. 380, 17 S.E.2d 348 (1941).

But This Act Does Reduce Tort Liability of Passively Negligent Third Person. - There is no substance in the proposition that the North Carolina Workers' Compensation Act confers no right whatever upon the passively negligent third party. It reduces his liability in tort for the injury to the employee by the amount of the workers' compensation received by the employee from the actively negligent employer or his insurance carrier. Hunsucker v. High Point Bending & Chair Co., 237 N.C. 559, 75 S.E.2d 768 (1953).

As to the liability of insurance carrier of employer as third party, see Smith v. Liberty Mut. Ins. Co., 449 F. Supp. 928 (M.D.N.C. 1978), aff'd, 598 F.2d 616 (4th Cir. 1979).

Industrial Commission Has Exclusive Original Jurisdiction to Determine Right to Subrogation. - The Declaratory Judgment Act may not be used to determine whether or not the employer's insurance carrier is entitled to the right of subrogation against the funds received from the third-party tortfeasor, under the provisions of this section, since the Industrial Commission has the exclusive original jurisdiction to determine the question. Cox v. Pitt County Transp. Co., 259 N.C. 38, 129 S.E.2d 589 (1963).

This statutory provision does not provide for a direct action against the negligent employer nor does it allow for the recovery of direct damages from the employer. Jackson v. Howell's Motor Freight, Inc., 126 N.C. App. 476, 485 S.E.2d 895 (1997), review denied, 347 N.C. 267, 493 S.E.2d 456 (1997).

The doctrine of governmental immunity is inapplicable where a defendant alleges a municipality's negligence under subsection (e). Jackson v. Howell's Motor Freight, Inc., 126 N.C. App. 476, 485 S.E.2d 895 (1997), review denied, 347 N.C. 267, 493 S.E.2d 456 (1997).

Evidence of out-of-state workers' compensation payments is admissible in actions against third parties. Frugard v. Pritchard, 338 N.C. 508, 450 S.E.2d 744 (1994).

Effect of Contributory Negligence of Injured Employee. - The contributory negligence of the injured employee cannot be made the basis of an independent plea in bar of the right of the employer to recover over against the original and primary wrongdoer. Poindexter v. Johnson Motor Lines, 235 N.C. 286, 69 S.E.2d 495 (1952).

Any alleged negligence of such employee who has received, or whose estate has received, compensation from the employer under the act, must be pleaded, if at all, as a bar to the whole action, without reference to any rights of the employer to share in the recovery. Poindexter v. Johnson Motor Lines, 235 N.C. 286, 69 S.E.2d 495 (1952).

Contributory negligence of the injured employee constitutes a complete defense to an action against a third-person tortfeasor, and may be pleaded and proved by such third person irrespective of whether the action is instituted by the employer, the insurance carrier, or the employee. Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886 (1953).

Effect of Compromise and Settlement by Widow with Employer in Her Capacity as Administratrix. - The widow of a deceased employee, in her capacity as administratrix, executed a compromise and settlement with the employer on a common-law claim for wrongful death under the mistaken belief that the Workers' Compensation Act was not applicable. It was held that the compromise and settlement barred the widow in her capacity as a dependent from recovery under the act. McGill v. Bison Fast Freight, Inc., 245 N.C. 469, 96 S.E.2d 438 (1957).

But the compromise and settlement did not bar claim under the act of the deceased's child under 18 years of age without guardian, since the administratrix had no authority to act for the dependent child except in respect of claims or causes of action vested in the administratrix as such. However, the child's recovery under the act should be diminished to the extent of the benefits ultimately received by the child from the compromise and settlement. McGill v. Bison Fast Freight, Inc., 245 N.C. 469, 96 S.E.2d 438 (1957).

Allegations Failing to Show Contract by Employer and Carrier Not to Sue. - An action was instituted by the administrator of a deceased employee against a third-party tortfeasor. Compensation had been paid for the employee's death under the Workers' Compensation Act. Defendant alleged in its answer that in the collision causing the death of plaintiff 's intestate, other persons were killed or injured, that the other actions growing out of the collision were compromised, and that in the settlement defendant made a substantial contribution upon the assurance of the attorneys for the employer and insurance carrier that they would recommend that this action not be instituted. It was held that the allegations failed to show a contract by the employer or the insurance carrier not to sue, or that the attorneys did not make the promised recommendation in good faith; and the allegations were properly stricken upon motion in the administrator's action. Penny v. Stone, 228 N.C. 295, 45 S.E.2d 362 (1947).

Employer is not relieved of liability by insurer's insolvency after recovery against third person. Roberts v. City Ice & Fuel Co., 210 N.C. 17, 185 S.E. 438 (1936).

Effect of Contributory Negligence of Employer. - When the employee or his estate has been satisfied, and the employer seeks to recover the amount paid by him from a third party, such third party may raise as a defense that the employer's negligence caused the employee's death. Leonard v. Johns-Manville Sales Corp., 309 N.C. 91, 305 S.E.2d 528 (1983).

If the defense of contributory negligence of the employer was not recognized, an employer could by his own negligence participate in the killing or injuring of the worker, pay for it, and then wash his hands of his own wrong, merely because he brought a suit against a third party who also contributed to the injury or death. Leonard v. Johns-Manville Sales Corp., 309 N.C. 91, 305 S.E.2d 528 (1983).

Employer's Negligence as Defense in Claim Against Subcontractor. - In a case brought by an employee's estate against a subcontractor seeking to recover for a work-related accident, the subcontractor was allowed under G.S. 97-10.2 to raise the employer's negligence as a defense despite the fact that, in the settlement of the workers' compensation claim, the employer had waived its right to subrogation. Estate of Harvey v. Kore-Kut, Inc., 180 N.C. App. 195, 636 S.E.2d 210 (2006).

The liability of an automobile insurer, who was also the workers' compensation carrier, for underinsured motorist benefits had to be reduced by the amount of workers' compensation benefits after reduction of the amount received from the tort-feasor's liability insurer. Manning v. Fletcher, 102 N.C. App. 392, 402 S.E.2d 648 (1991), aff'd, 331 N.C. 114, 413 S.E.2d 798 (1992).

The mandatory nature of workers' compensation insurance carrier's lien on a recovery from the third-party tort-feasor is not altered by the discretionary authority of the trial judge to apportion the recovery between the employee and the insurance carrier, if that recovery is inadequate to satisfy the insurance carrier's lien. Manning v. Fletcher, 102 N.C. App. 392, 402 S.E.2d 648 (1991), aff'd, 331 N.C. 114, 413 S.E.2d 798 (1992).

When an employee obtained a judgment against an alleged tortfeasor for injuries for which the employee was paid workers' compensation benefits, denying, based on res judicata, the tortfeasor's motion to determine the amount of an employer's lien erred because the statute, giving a trial judge discretion to find the lien amount, created a res judicata exception, as there was no identity between the employee's personal injury action and the tortfeasor's subsequent suit to find the lien amount, since the personal injury suit involved a civil claim for money damages, while the motion to find the lien amount was purely statutory and narrow in scope, simply requiring the court's judicial act considering statutory factors and making a judicial value judgment supported by findings of fact and conclusions of law. Murray v. Moody, 252 N.C. App. 141, 797 S.E.2d 365 (2017).

When an employee obtained a judgment against an alleged tortfeasor for injuries for which the employee was paid workers' compensation benefits, the superior court judge rule, ordinarily barring one trial court judge from altering another trial court judge's order in the same action, did not preclude considering a motion to determine the amount of an employer's subrogation lien, due to the prior judgment, because the statute giving a trial court judge discretion to find the lien amount created a specific statutory exception to that rule. Murray v. Moody, 252 N.C. App. 141, 797 S.E.2d 365 (2017).

The workers' compensation carrier for plaintiffs had a subrogation lien on the uninsured motorist policy proceeds paid to plaintiff employee who was injured in an automobile accident occurring while within the scope of employment. Bailey v. Nationwide Mut. Ins. Co., 112 N.C. App. 47, 434 S.E.2d 625 (1993), overruled on other grounds, McMillian v. North Carolina Farm Bureau Mut. Ins. Co., 347 N.C. 560, 495 S.E.2d 352 (1998).

Findings Adequate on Third Party Litigation. - Trial court's order gave sufficient indication that the mandatory statutory factor regarding the cost of the third party litigation to be shared between the employee and employer was considered where it considered the amount the employee and his attorney had received, and would receive in the future, as a result of the third party litigation, took into account the court costs that had been paid, and noted that the employer intended to exclude the employee's attorney's fees from the amount of the workers' compensation subrogation lien. Dion v. Batten, 248 N.C. App. 476, 790 S.E.2d 844 (2016).

III. PARTIES AND PROCEDURE.

.

This section provides a negligent defendant with recourse against an also negligent employer by allowing defendant to: (1) allege that the employer's negligence concurred in producing plaintiff's injury and, (2) seek a reduction in damages as provided in the statute. Jackson v. Howell's Motor Freight, Inc., 126 N.C. App. 476, 485 S.E.2d 895 (1997), review denied, 347 N.C. 267, 493 S.E.2d 456 (1997).

Choice of Law. - Trial court did not abuse its discretion in applying North Carolina law and reducing the amount of a workers' compensation insurance carrier's subrogation lien pursuant to G.S. 97-10.2(j) because, although the employer and the employee were Tennessean, the accident took place in North Carolina, and remedial rights were determined by the law of the forum. Cook v. Lowe's Home Ctrs., Inc., 209 N.C. App. 364, 704 S.E.2d 567 (2011).

Standing. - Town and a state agency had standing to bring a subrogation complaint against a Chapter 13 debtor to recover workers' compensation benefits paid to an individual injured in a pre-petition automobile accident with the debtor under G.S. 97-10.2(c) because the individual did not bring a timely claim against the debtor after the accident. In re Guzman, - Bankr. - (Bankr. E.D.N.C. May 31, 2011).

UIM insurer had third-party standing under G.S. 97-10.2(j) to move for determination of the subrogation amount since the insured had properly filed for workers' compensation benefits and received approval for the disbursement of third party funds. Dion v. Batten, 248 N.C. App. 476, 790 S.E.2d 844 (2016).

Trial court did not err in concluding that an insurance carrier did not have standing to bring an action to recover workers' compensation benefits paid to an employee and dismissing the action; based upon the plain language of the statute and the legislative history, nothing shows the General Assembly intended to provide the insurance carrier with the right to bring a direct action against a third party. Key Risk Ins. Co. v. Peck, 252 N.C. App. 127, 797 S.E.2d 354 (2017).

Based upon the plain language of the statute, an insurance carrier does not have the right to bring an action against a third party in its own name, if the employee refuses to cooperate; the language of the statute explicitly states "the employer shall have the right to proceed to enforce the liability of the third party," and the insurance carrier is only mentioned once in the sections outlining the procedure for bringing an action against a third party. Key Risk Ins. Co. v. Peck, 252 N.C. App. 127, 797 S.E.2d 354 (2017).

Action Prosecuted in Behalf of Any Person Entitled to Share in Recovery. - A necessary implication of the statutory requirement respecting the disbursement of the recovery is that the action against the third party is prosecuted in behalf of any person entitled to claim a share in the recovery, regardless of whether he is a party to the action. Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886 (1953).

Ownership of Policy Irrelevant. - Under this section the distinction between an underinsured motorist policy purchased by the employee and one covering the employee but purchased by his spouse while a resident of the same household is unimportant. Creed v. R.G. Swaim & Son, 123 N.C. App. 124, 472 S.E.2d 213 (1996).

Subject Matter Jurisdiction Proper. - Trial court had subject matter jurisdiction to rule on the motion for determination of the subrogation amount where the insured had obtained a judgment against another driver, thereby triggering the authority to determine the amount under G.S. 97-10.2(j). Dion v. Batten, 248 N.C. App. 476, 790 S.E.2d 844 (2016).

Jurisdiction Over Subrogation Claim. - In a workers' compensation appeal, the North Carolina Industrial Commission did not err in denying a motion by a successor employer and a successor insurer to withdraw or to stay the effect of an award to the employee because a final award had not yet been entered in the matter due to the appeal, and thus, the Commission did not have jurisdiction over a subrogation claim pursuant to G.S. 97-10.2(f)(1). Childress v. Fluor Daniel. Inc., 162 N.C. App. 524, 590 S.E.2d 893 (2004).

Motion To Introduce Newly Discovered Evidence Properly Denied. - Trial court did not abuse its discretion in denying an employer's motion to introduce newly discovered evidence pursuant to under G.S. 1A-1-60(b)(2) because the motion could not have been proper under Rule 60(b) since the employer filed the motion to introduce newly discovered evidence after the hearing on an employee's motion to determine its workers' compensation lien under the Workers' Compensation Act, G.S. 97-10.2(j), but before any written order had been issued on his motion, and a hearing alone, without a written order, was not a final judgment or order; the employer did not seek relief from a final judgment or order, but rather attempted to put new evidence before the trial court for its consideration in rendering its final judgment or order, but Rule 60(b) did not contemplate that kind of relief. Kingston v. Lyon Constr., Inc., 207 N.C. App. 703, 701 S.E.2d 348 (2010).

Motion to Substitute Properly Denied. - Insurance carrier failed to show the trial court abused its discretion in denying its motion to substitute a party because the action was brought solely in the insurance carrier's name and not the employer's name, and no indication in the record showed the employee refused to cooperate. Key Risk Ins. Co. v. Peck, 252 N.C. App. 127, 797 S.E.2d 354 (2017).

Insurance carrier failed to show the trial court abused its discretion in denying its motion to substitute a party because the statute set out the procedures regarding who could bring a claim against a third party and when those claims could be instituted under the Workers' Compensation Act, but the insurance carrier did not follow those statutory requirements to properly bring or assert the claim against a driver. Key Risk Ins. Co. v. Peck, 252 N.C. App. 127, 797 S.E.2d 354 (2017).

Liability of Employer. - Business that employed the injured party working as an on-site supervisor for the business at the facility owner's facility could not be found concurrently liable under G.S. 97-10.2(e) for any liability stemming from injuries that the injured party sustained when an unsecured door resting against a wall at the facility owner's facility fell on the injured party. Any liability on its part was based on conjecture and, thus, the trial court did not even have to instruct jury on the issue of concurrent liability. Shelton v. Steelcase, Inc., 197 N.C. App. 404, 677 S.E.2d 485 (2009), review denied, 363 N.C. 583, 682 S.E.2d 389 (2009).

Joinder of Employer or Carrier in Action Against Third Person. - Whether the employer or insurance carrier who has paid compensation may proceed in the action which has been instituted against a third person by an injured employee or his personal representative, or must institute a new and independent action, is a question of procedure, and under the law of this State it is proper to proceed in the action which has been instituted. Betts v. Southern Ry., 71 F.2d 787 (4th Cir. 1934).

Employer's Third Party Negligence Claim Time-Barred. - In the employer and employee's third party negligence claim against the general contractor and subcontractor, where the requirements of G.S. 97-10.2(c) were not met, as the employee and employer did not settle with the general contractor or subcontractor within 12 months of the employee's injuries, and the employer did not file a written admission of liability with the industrial commission, under G.S. 97-10.2(b), the employee had the sole right to proceed after the employer did not file suit within 12 months of the injuries. Blair Concrete Servs. v. Van-Allen Steel Co., 152 N.C. App. 215, 566 S.E.2d 766 (2002).

As to appealability of order joining employer and insurance carrier, see Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886 (1953).

Defendant Not Entitled to Joinder of Employer and Insurance Carrier. - In an action instituted by the employee against the third person tortfeasor, defendant was not entitled to the joinder of the employer and the insurance carrier. Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886 (1953).

Employer Cannot Be Made Party Defendant. - The remedy under the act is exclusive, and an employer is relieved of all further liability for injury to or death of an employee, and where the administrator of a deceased employee brings an action against third persons for the employee's wrongful death, the motion of the defendants that the deceased's employer be made a party as a joint tortfeasor with them should be denied. Brown v. Southern Ry., 202 N.C. 256, 162 S.E. 613 (1932).

Court May Not Join Unnecessary Additional Parties. - Where the plaintiff is the party authorized by this section to maintain the action against the tortfeasor, he is entitled to prosecute same to final judgment, and the court may not interfere with this privilege by the joinder of wholly unnecessary additional parties. Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886 (1953).

Employee is to have the exclusive privilege to prosecute his action to a final conclusion without the presence of either the employer or the insurance carrier unless extraordinary circumstances require their joinder. Gibbs v. Carolina Power & Light Co., 265 N.C. 459, 144 S.E.2d 393 (1965).

An action by an employee against a third party shall not be encumbered by including as parties, plaintiff or defendant, the employer or insurance carrier, nor by bringing in irrelevant causes of action. Gibbs v. Carolina Power & Light Co., 265 N.C. 459, 144 S.E.2d 393 (1965).

Employer's Right of Subrogation Not Forfeited by Failure to Participate in Trial and Appeal of Wrongful Death Action. - Employer, by its failure to participate in the trial and appeal of a wrongful death action brought by the administratrix of the estate of the deceased employee, did not forfeit its subrogation right to be reimbursed out of the recovery from the third party whose negligence caused the death, since, the suit having been brought within one year from the employee's death, his personal representative had exclusive control of the proceedings against the negligent third party. Byers v. North Carolina State Hwy. Comm'n, 275 N.C. 229, 166 S.E.2d 649 (1969).

As to employee filing counterclaim in action by third person, see Rowe v. Rowe-Coward Co., 208 N.C. 484, 181 S.E. 254 (1935).

Action by Insurance Carrier Instituted After Action by Employee. - Where it appeared that an injured employee's action against third-person tortfeasor was instituted prior to the institution of an action by the compensation insurance carrier against the tortfeasor, defendant's plea in abatement in the employee's action on the ground of the pendency of a prior action could not be sustained. Thompson v. Virginia & C.S.R.R., 216 N.C. 554, 6 S.E.2d 38 (1939), commented on in 18 N.C.L. Rev. 375 (1940).

Recovery by Employee's Administrator Bars Action by Employer or Carrier. - Where the employee's administrator has recovered and collected a judgment at law against third persons for the employee's death, the employer and carrier cannot, in their own name, sue the defendants under the subrogation provisions of this section. Suits for wrongful death must be brought in the name of the personal representative, and the employee's administrator having collected, there remains no cause to which the employer or carrier can be subrogated. Whitehead & Anderson, Inc. v. Branch, 220 N.C. 507, 17 S.E.2d 637 (1941).

Action Not Governed by Code of Civil Procedure. - An action in behalf of an injured employee against a third-person tortfeasor is governed by this section and not by the Code of Civil Procedure. Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886 (1953).

Insofar as the provisions of this section are in conflict with or supersede any of the rules of civil procedure, an action against a third party by an employee or employer to recover for injury to employee caused by the alleged negligence of the third party is governed by the provisions of the act and not by the Code of Civil Procedure. Gibbs v. Carolina Power & Light Co., 265 N.C. 459, 144 S.E.2d 393 (1965).

As to action for wrongful death against third person, see Betts v. Southern Ry., 71 F.2d 787 (4th Cir. 1934); Mack v. Marshall Field & Co., 217 N.C. 55, 6 S.E.2d 889 (1940); Sayles v. Loftis, 217 N.C. 674, 9 S.E.2d 393 (1940); Taylor v. Hunt, 245 N.C. 212, 95 S.E.2d 589 (1956).

For cases holding that evidence of compensation payments was inadmissible in action by employee against third party, decided prior to the 1983 amendment to this section, see Penny v. Stone, 228 N.C. 295, 45 S.E.2d 362 (1947); Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886 (1953); Redding v. Braddy, 258 N.C. 154, 128 S.E.2d 147 (1962); Spivey v. Babcock & Wilcox Co., 264 N.C. 387, 141 S.E.2d 808 (1965); Lewis v. Barnhill, 267 N.C. 457, 148 S.E.2d 536 (1966).

Right of Employer and Carrier to Trial by Jury - Preserved by Subsection (e). - Subsection (e) of this section preserves the employer/carrier's right to trial by jury, providing that it has been demanded by a party in the pleadings and not waived by all the parties. Williams v. International Paper Co., 89 N.C. App. 256, 365 S.E.2d 724 (1988), modified on other grounds, 324 N.C. 567, 380 S.E.2d 510 (1989).

Same - Effect of Settlement of Claim Against Third Parties. - In enacting subsection (j) of this section, the legislature did not contemplate and intend to deprive the employer/carrier of its right to trial by jury by virtue of the settlement of the plaintiff 's claim against third party defendants. Williams v. International Paper Co., 89 N.C. App. 256, 365 S.E.2d 724 (1988), modified on other grounds, 324 N.C. 567, 380 S.E.2d 510 (1989).

Under G.S. 1A-1, Rule 38(d), absent a showing that employer/carrier consented to elimination of requested jury trial on the issue of employer negligence, it could not be deemed waived. Although the two original parties to the action had reached a settlement, there still remained the issue of employer negligence to be determined. Williams v. International Paper Co., 89 N.C. App. 256, 365 S.E.2d 724 (1988), modified on other grounds, 324 N.C. 567, 380 S.E.2d 510 (1989).

Subsection (j) must be read in pari materia with the rest of this section; other parts of the section provide a procedure for settling a case and the legislature did not intend this procedure to be ignored when settling a case pursuant to subsection (j). Pollard v. Smith, 324 N.C. 424, 378 S.E.2d 771 (1989).

Settlement reached by employee and third parties without the written consent of employer was void since employer did not give its written consent to the settlement between employee and the third parties; subsection (j) of this section does not supersede subsection (h) of this section and subsection (j) should be read in pari materia with the other provisions of the statute. Williams ex rel. Heidgerd v. International Paper Co., 324 N.C. 567, 380 S.E.2d 510 (1989).

A trial court's reduction of a workers' compensation subrogation lien was erroneous because the trial court based its jurisdiction upon a contingent settlement agreement containing an unfulfilled condition precedent; G.S. 97-10.2(j) only permits a superior court to adjust the amount of a subrogation lien if the agreement between the parties has been finalized so that only performance of the agreement is necessary to bind the parties. Ales v. T. A. Loving Co., 163 N.C. App. 350, 593 S.E.2d 453 (2004).

Trial court erred in concluding that employer did not have a lien on UIM benefits recovered by plaintiff from insurer; plaintiff's private settlement with the insurer, which allowed the insurance carrier to reduce the arbitration award by the amount of the employer's workers' compensation lien, did not extinguish his employer's workers' compensation lien, and the trial court was obligated to make findings and conclusions in support of its reasoned disbursement choice to provide meaningful review on appeal. Levasseur v. Lowery, 139 N.C. App. 235, 533 S.E.2d 511 (2000), cert. denied, in part, 352 N.C. 675, 545 S.E.2d 426 (2000), aff'd, 353 N.C. 358, 543 S.E.2d 476 (2001).

Workers' Compensation Paid Was Lien Against Recovery of Uninsured Motorist Benefits. - County vehicle insurance policy provision that workers' compensation paid to an injured employee would be directly set off from the policy's coverage limit was not valid because it was in direct conflict with G.S. 97-10.2. Under G.S. 97-10.2, the amount of workers' compensation paid to the employee was a lien against her recovery under the policy, and the determination of the amount of that lien was left to the sound discretion of the trial court judge. Nolan v. Cooke, 198 N.C. App. 667, 679 S.E.2d 892 (2009).

The workers' compensation benefits received by plaintiff under Virginia's Workers' Compensation Act should have been allowed into evidence pursuant to subsection (e) in plaintiff's third party personal injury action. Frugard v. Pritchard, 112 N.C. App. 84, 434 S.E.2d 620 (1993), rev'd on other grounds, 338 N.C. 508, 450 S.E.2d 744 (1994), cert. granted, 335 N.C. 554, 441 S.E.2d 113 (1994).

Employer Entitled to Jury Trial. - In a tort action brought by an injured employee against third parties who alleged that the employer was jointly and concurrently liable for the employee's injuries, the employer was entitled to a jury trial on the issue of employer negligence under subsection (e) of this section; there had been no showing that the employer consented to a waiver or withdrawal of the initial demand by third parties and employee for a jury trial since the settlement between the employee and third parties, to which the employer was not a party, neither extinguished the employer's right to trial by jury nor did it settle the issue of the employer's negligence. Williams ex rel. Heidgerd v. International Paper Co., 324 N.C. 567, 380 S.E.2d 510 (1989).

Defendants Waived Entitlement to Lien. - Where by the explicit terms of an agreement between plaintiff and third party tortfeasor - to the making of which defendants stipulated their consent - lifetime monthly payments from third party to plaintiff were plainly proceeds of the structured settlement reached in that third party action, and federal district court, after reviewing the settlement agreement and hearing extensive argument from all parties, including counsel for defendants' employer and insurer, found that defendants had agreed to waive any lien which they had as to the proceeds from this settlement and recovery, the facts fully supported the commission's determination that defendants, by virtue of their waiver, were not entitled to a lien in the lifetime monthly payments due plaintiff from the third party action. Turner v. CECO Corp., 98 N.C. App. 366, 390 S.E.2d 685 (1990).

Retroactive Application. - The trial court's application of the amended version of this section deprived employer and insurer of vested rights under lien and, thus, was unconstitutionally retroactive. Fogleman v. D & J Equip. Rental, Inc., 111 N.C. App. 228, 431 S.E.2d 849, cert. denied, 335 N.C. 172, 436 S.E.2d 374 (1993).

Trial court's order eliminating an insurance carrier's workers' compensation lien in the proceeds from the decedent's wife's negligence action against a railway company was vacated where the wife and railway company had settled the negligence claim contingent on the elimination of the lien and, as a result, the settlement was not final under the appellate court's prior judicial precedent. Wilkerson v. Norfolk S. Ry., 167 N.C. App. 607, 606 S.E.2d 187 (2004).

IV. DISBURSEMENT OF PROCEEDS.

.

Constitutionality. - G.S. 97-10.2(f)(1)(b) was constitutional as applied in a case, because the cap on attorneys' fees by the North Carolina Industrial Commission at one-third of the gross recovery in a third-party case was rationally related to a legitimate government interest in compensating the injured worker. Tinsley v. City of Charlotte, 228 N.C. App. 744, 747 S.E.2d 145 (2013).

Constitutionality of Subdivision (f)(2). - The provision in subdivision (f)(2) of this section, which directs that the attorney fee incurred by the party who effects recovery against a third- party tortfeasor be apportioned between and paid by the employee and employer in proportion to the amount which each receives from the recovery, is constitutional. It does not unjustifiably impair the freedom of the employer and its carrier to negotiate a contract on their own for representation by attorneys of their choice in the prosecution and settlement of their subrogation rights against a third-party tortfeasor. Hogan v. Johnson Motor Lines, 38 N.C. App. 288, 248 S.E.2d 61 (1978), cert. denied, 296 N.C. 411, 251 S.E.2d 469 (1979).

Legislative Intent. - It is clear from the provisions of subsection (j) that it was and is the intent of the legislature that non-negligent employers are to be reimbursed for those amounts they pay to employees who are injured by the negligence of third parties, and that employees are not intended to receive double recoveries. Johnson v. Southern Indus. Constructors, Inc., 347 N.C. 530, 495 S.E.2d 356 (1998).

Evidence of Liability Insurance. - In suit regarding automobile accident, evidence of defendant's liability insurance coverage should not have been introduced just because evidence of plaintiff's recovery in workers' compensation was introduced pursuant to subsection (e). Anderson v. Hollifield, 123 N.C. App. 426, 473 S.E.2d 399 (1996), rev'd on other grounds, 345 N.C. 480, 480 S.E.2d 661 (1997).

Coverage by Same Entity Not Required. - In order to have amounts payable under underinsured motorist coverage reduced by amounts paid under workers' compensation coverage, G.S. 20-279.21(e) does not require that the same entity provide both coverages. Brantley v. Starling, 336 N.C. 567, 444 S.E.2d 170 (1994).

Jurisdiction over Distribution with Court or Commission. - Under this section, the distribution of proceeds received from a tortfeasor between an injured employee and an employer entitled to reimbursement can be decided in some instances by either the Industrial Commission or the trial court. Buckner v. City of Asheville, 113 N.C. App. 354, 438 S.E.2d 467, cert. denied, 336 N.C. 602, 447 S.E.2d 385 (1994).

The Industrial Commission, not the superior court, had exclusive jurisdiction over distribution of the proceeds recovered from third party tortfeasor where third party judgment exceeded the subrogation claim of the worker's compensation insurance carrier even if the actual proceeds of the judgment were insufficient to compensate the subrogation claim. Hieb v. Howell's Child Care Ctr., Inc., 123 N.C. App. 61, 472 S.E.2d 208 (1996).

Although the Industrial Commission, not the superior court, had exclusive jurisdiction to disburse third party proceeds, the Commission did not have the authority to stay a superior court order, even if the order was in error. Hieb v. Howell's Child Care Ctr., Inc., 123 N.C. App. 61, 472 S.E.2d 208 (1996).

Where there had been no settlement, nor had a judgment been obtained, which was insufficient to compensate the subrogation claim of workers' compensation insurance carrier, the trial court lacked authority to direct disbursement of judgment proceeds under this section and the case would be remanded to the Industrial Commission. Hieb v. Lowery, 134 N.C. App. 1, 516 S.E.2d 621 (1999).

Subdivision (f)(1)(c) Construed in Pari Materia with G.S. 97-25. - Subdivision (f)(1)(c) and G.S. 97-25 relate to the same subject matter and must be construed in pari materia. Roberts v. ABR Assocs., 101 N.C. App. 135, 398 S.E.2d 917 (1990).

The distribution of any recovery is a matter for the Industrial Commission under subsection (f) of this section. Spivey v. Babcock & Wilcox Co., 264 N.C. 387, 141 S.E.2d 808 (1965); Byers v. North Carolina State Hwy. Comm'n, 275 N.C. 229, 166 S.E.2d 649 (1969).

Limitation on Commission; Authority. - The authority of the Industrial Commission to distribute the proceeds of the employer-employee settlement with the tortfeasor is governed by subsection (f) which does not have the authority to make a distribution pursuant to subsection (j). Buckner v. City of Asheville, 113 N.C. App. 354, 438 S.E.2d 467, cert. denied, 336 N.C. 602, 447 S.E.2d 385 (1994).

Findings of Fact Required to Be Made by Commission. - The commission must make findings of fact regarding the benefits provided for the treatment of an injured employee for which an employer is entitled to reimbursement. Buckner v. City of Asheville, 113 N.C. App. 354, 438 S.E.2d 467, cert. denied, 336 N.C. 602, 447 S.E.2d 385 (1994).

Subsection (f) provides adequate protection against double recovery by the injured employee on account of aggravation of his original injury through the physician's negligence. Bryant v. Dougherty, 267 N.C. 545, 148 S.E.2d 548 (1966).

Reimbursement Under Subdivision (f)(1)(c). - The party claiming a right to reimbursement under subsection (f)(1)(c), i.e., the employer or its insurance carrier, must show, pursuant to G.S. 97-25, (1) that the treatment provided was in the form of medical treatment, surgical treatment, hospital treatment, nursing services, medicines, sick travel, rehabilitation services, or other treatment including medical and surgical supplies, and (2) that the treatment provided was reasonably required for at least one of three purposes, namely, to effect a cure, give relief, or lessen the period of the plaintiff's disability. Roberts v. ABR Assocs., 101 N.C. App. 135, 398 S.E.2d 917 (1990).

Proceeds of any settlement or judgment must be disbursed according to the provisions of the act. Cox v. Pitt County Transp. Co., 259 N.C. 38, 129 S.E.2d 589 (1963); Byers v. North Carolina State Hwy. Comm'n, 3 N.C. App. 139, 164 S.E.2d 535 (1968), aff 'd, 275 N.C. 229, 166 S.E.2d 649 (1969).

Since the passage of the Workers' Compensation Act, the Supreme Court has held that recovery from a responsible third party must be distributed by the Industrial Commission according to the order of priority set out in the act. Byers v. North Carolina State Hwy. Comm'n, 275 N.C. 229, 166 S.E.2d 649 (1969).

Recovery by Employer of His Underinsured Motorist Benefits. - The employer's underinsured motorist benefits received in an action against the tortfeasor are subject to a subrogation claim by an employer who has paid workers' compensation benefits to its employee. Buckner v. City of Asheville, 113 N.C. App. 354, 438 S.E.2d 467, cert. denied, 336 N.C. 602, 447 S.E.2d 385 (1994).

Recovery by Personal Representative. - The net recovery from the responsible third party (except that which must be returned to the subrogee for its outlay) goes to the personal representative under subsection (f)(1)d. Byers v. North Carolina State Hwy. Comm'n, 275 N.C. 229, 166 S.E.2d 649 (1969).

For case where petitioners, who were not the administrators, lacked standing to appeal Industrial Commission's order of distribution, see Montgomery v. Bryant Supply Co., 91 N.C. App. 734, 373 S.E.2d 299 (1988), cert. denied, 324 N.C. 248, 377 S.E.2d 755 (1989).

Employer's Lien Against Settlement. - Subsection (j) permits a party to have a superior court judge determine the subrogation amount that an employer is entitled to in the event that a settlement has been agreed upon by the employee and the third party and the judge shall determine the amount, if any, of the employer's lien. United States Fid. & Guar. Co. v. Johnson, 128 N.C. App. 520, 495 S.E.2d 388 (1998).

Trial court did not abuse its discretion in extinguishing county's subrogation lien against deputy sheriff regarding a settlement that he received following an injury in the course of his employment because the county government was subject to the North Carolina Workers' Compensation Act, G.S. 97-1 et seq., regarding payment and compensation under the Act, and there was specific statutory authority authorizing the deputy sheriff to seek a determination under G.S. 97-10.2(j) of the county's authority to file a lien against his settlement proceeds. Helsius v. Robertson, 174 N.C. App. 507, 621 S.E.2d 263 (2005), appeal dismissed, review denied, 360 N.C. 363, 629 S.E.2d 851, recons. denied, 360 N.C. 533, 633 S.E.2d 815 (2006).

In a workers' compensation case, because the settlement between the claimant's uninsured motorist insurance carrier and herself did not comply with G.S. 97-10.2 in that the employer never gave written consent to the settlement, the full commission of the North Carolina Industrial Commission erred in concluding that the employer's only remedy was to apply to a trial court for a credit for amounts paid from the uninsured motorist carrier to the claimant. Instead, the employer was entitled to a lien on all corresponding uninsured motorist benefits received by the claimant, less the portion expended for the cost of replacing the claimant's left breast implant, which was determined not to have been a compensable injury. Richardson v. Maxim Healthcare/Allegis Group, - N.C. App. - , - S.E.2d - (Oct. 2, 2007).

As to whether a trial court abused its discretion by finding, in the alternative, that if respondents did have a lien against the settlement proceeds under G.S. 97-10.2(h), such lien should be struck pursuant to G.S. 97-10.2(j), a remand was necessary because there was no indication in the record to show that the trial court considered several mandated statutory factors. Parker v. C.C. Mangum Co. (In re Estate of Bullock), 188 N.C. App. 518, 655 S.E.2d 869 (2008).

Right for decedent's estate to bring an action against the third-party tortfeasors, was conferred by G.S. 28A-18-2; however, the relative rights between decedent's estate and respondent employer and its insurer were governed by G.S. 97-10.2. Parker v. C.C. Mangum Co. (In re Estate of Bullock), 188 N.C. App. 518, 655 S.E.2d 869 (2008).

Unless and until an employee who was injured in a hit-and-run automobile accident applied to a superior court for a determination of the subrogation amount on a settlement the employee received from an uninsured motorist carrier, the employer and the employer's insurer were entitled to a lien on all corresponding uninsured motorist benefits received by the employee, less the portion expended for the cost of replacing an implant for the employee for which the carrier paid. Richardson v. Maxim Healthcare/ Allegis Group, 188 N.C. App. 337, 657 S.E.2d 34 (2008), aff'd in part, rev'd in part, 362 N.C. 657, 669 S.E.2d 582 (2008).

Amounts Paid as Compensation Constitute a Lien on Wrongful Death Action Recovery. - Under the provisions of this section, the amounts paid by an employer and the employer's insurance carrier as compensation or other benefits to a decedent under the Workers' Compensation Act for disability, disfigurement, or death caused under circumstances creating a liability in some person other than the employer to pay damages therefor constitute a lien on the amount recovered in a wrongful death action; and this is a lawful claim against the estate. Long v. Coble, 11 N.C. App. 624, 182 S.E.2d 234, cert. denied, 279 N.C. 395, 183 S.E.2d 246 (1971).

In order to adjust the amount of a lien upon a recovery against a third party agreed to in a workers' compensation claim settlement approved by the Industrial Commission, the parties must apply to the commission under G.S. 97-17; a party may not use G.S. 97-10.2(j) to avoid a duly executed and commission-approved settlement agreement, and a trial court has no jurisdiction to adjust a lien amount agreed upon in such an agreement. Holden v. Boone, 153 N.C. App. 254, 569 S.E.2d 711 (2002).

General language of G.S. 97-10.2(j) is clear and unambiguous, granting a trial judge authority to use its discretion in adjusting a workers' compensation lien amount, even if the result is a double recovery for the plaintiff. Holden v. Boone, 153 N.C. App. 254, 569 S.E.2d 711 (2002).

Lien on Underinsured Motorist Benefits. - Industrial Commission properly concluded that workers' compensation carrier had a lien on the proceeds of plaintiff's underinsured motorist benefits. Creed v. R.G. Swaim & Son, 123 N.C. App. 124, 472 S.E.2d 213 (1996).

Amounts Obtained "by Settlement with, Judgment," etc. - Cash payment and value of remainder interest in real estate conveyed to widow for the death of her husband-employee by shooting constitute amounts obtained by her "by settlement with, judgment against, or otherwise" from the third party tortfeasor by reason of her husband's death so as to subject such amounts to the disbursement authority of the Industrial Commission under subsection (f). Nivens v. Firestone Tire & Rubber Co., 24 N.C. App. 473, 211 S.E.2d 505, cert. denied, 286 N.C. 723, 213 S.E.2d 722 (1975).

Authority to Order Employer to Pay Attorney's Fees. - This section does not confer any authority upon the district court to order an employer to pay attorney's fees. This action is within the exclusive province of the Industrial Commission. Westmoreland v. Safe Bus, Inc., 20 N.C. App. 632, 202 S.E.2d 605 (1974).

Cap on Attorney's Fees in Third-Party Action. - North Carolina Industrial Commission, pursuant to G.S. 97-10.2(f)(1) and G.S. 97-90(c), did not exceed its subject matter jurisdiction by capping attorneys' fees from a third-party case at one-third of the gross recovery. Tinsley v. City of Charlotte, 228 N.C. App. 744, 747 S.E.2d 145 (2013).

Illegal Agreement Between Employee's Dependents and Employer for Distribution of Recovery. - In an action by the administrator of a deceased employee against the third-party tortfeasor, allegations in defendant's answer of an illegal agreement between the dependents and the employer for the distribution of the fund are properly stricken on motion, since the administrator is an official of the court under duty to make disbursement of any recovery in conformity with statute, and could not be bound by the terms of the agreement alleged. Penny v. Stone, 228 N.C. 295, 45 S.E.2d 362 (1947).

Attorney's Fees Improperly Disbursed. - Trial court properly ruled that any determination with respect to the payment of counsel fees in a workers' compensation lien case must be made by the Industrial Commission and that court's disbursement of attorney's fees had therefore not been proper. Hieb v. Lowery, 134 N.C. App. 1, 516 S.E.2d 621 (1999).

Employer's insurance company can be subrogated for the amount of workers' compensation paid by it to the employee Manning v. Fletcher, 91 N.C. App. 393, 371 S.E.2d 770 (1988), rev'd on other grounds, 324 N.C. 513, 379 S.E.2d 854 (1989).

Amount and Distribution of Recovery in Action by Insurance Carrier. - When an action is maintained by the insurance carrier against the third-person tortfeasor causing the injury, the tortfeasor is liable for the amount ascertained by the jury as sufficient to compensate the employee for the injuries sustained, which the statute prescribes shall be first applied to the actual court costs, then to the payment of attorneys' fees, then to the reimbursement of the insurance carrier for money paid by it under the award, and any amount remaining to the injured employee, and an instruction on the issue of damages that defendant would be liable for such sum as would reimburse the insurance carrier and would fairly compensate the injured employee is error. Rogers v. Southeastern Constr. Co., 214 N.C. 269, 199 S.E. 41 (1938).

This statute clearly provides for a different standard for disbursement when the case is before the superior court than that for cases before the Industrial Commission. When the General Assembly added subsection (j), it made no reference to subsection (f). Pollard v. Smith, 90 N.C. App. 585, 369 S.E.2d 84 (1988), rev'd on other grounds, 324 N.C. 424, 378 S.E.2d 771 (1989).

Trial Court to Enter Judgment Safeguarding Rights of Persons Entitled to Share in Recovery. - In the event of a verdict for the plaintiff in the action against third party, the trial court, sitting without a jury, is to determine the amount of compensation paid or payable to the injured employee under the act on the basis either of a stipulation of the interested persons or of evidence submitted to it, and after so doing is to enter a judgment safeguarding the rights of any person entitled to share in the recovery, regardless of whether or not such person is a party to the action. Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886 (1953).

Authority of Court to Reduce Lien Amount Where Settlement Approved by Industrial Commission - G.S. 97-10.2(j) did not give a trial court the authority to reduce the amount of an employer's and insurer's lien against an employee's recovery against a third party where the employee had agreed to the amount of that lien in a settlement approved by the Industrial Commission. Holden v. Boone, 153 N.C. App. 254, 569 S.E.2d 711 (2002).

Distribution of Wrongful Death Settlement Following Disapproval of Compensation Agreement. - Where the Industrial Commission disapproved an agreement for compensation for death only because the employee's widow was a minor and the death benefits had been miscalculated, but the employer's admission of liability was not disapproved, the Commission had jurisdiction to issue an order for the distribution of a wrongful death settlement made before the Commission finally approved the compensation agreement. Williams v. Insurance Repair Specialists of N.C. Inc., 32 N.C. App. 235, 232 S.E.2d 5, cert. denied, 292 N.C. 735, 235 S.E.2d 789 (1977).

Distribution of Wrongful Death Settlement Despite Liability Carrier's Possible Loss. - Where an employee's death arose out of and in the course of his employment, the employer filed with the Industrial Commission a written admission of liability, the compensation insurance carrier notified the third-party tortfeasor's liability insurance carrier that a compensation settlement was in process and that it would expect its lien upon any settlement of a wrongful death claim by the liability carrier, the liability carrier settled the wrongful death claim for $55,000.00 and paid that amount to the deceased employee's administrator, and the Industrial Commission later approved a workers' compensation settlement awarding $28,500.00 to the widow, the Industrial Commission thereafter had authority under this section to issue an order of distribution of the $55,000.00 wrongful death settlement, including a requirement that the liability carrier pay $28,500.00 to the compensation carrier in settlement of its subrogation interest, notwithstanding that the widow may have spent her entire distributive share of the wrongful death settlement and all of the workers' compensation benefits paid to her and the liability carrier might be unable to recoup any of the amount previously paid from the widow or the decedent's administrator. Williams v. Insurance Repair Specialists of N.C. Inc., 32 N.C. App. 235, 232 S.E.2d 5, cert. denied, 292 N.C. 735, 235 S.E.2d 789 (1977).

Distribution of Sum Collected by Plaintiff from Third Party. - Where defendant employer had not previously made any payments to plaintiff, the Commission should have directed it to pay plaintiff the compensation he was entitled to under G.S. 97-61.5. Then, following the distribution scheme set out in subdivision (f)(1), the sum collected by plaintiff from the third-party recovery should have been used first to pay court costs; secondly, to pay plaintiff 's attorneys' fee; thirdly, to reimburse defendant for the compensation it paid to plaintiff, less defendant's proportionate share of plaintiff 's attorneys' fees incurred in achieving the third-party recovery; and finally, the remainder of the third-party recovery should have been disbursed to the employee. Davis v. Weyerhaeuser Co., 96 N.C. App. 584, 386 S.E.2d 740 (1989).

Payment of Prejudgment Interest to Employee Not Double Recovery. - An award to the employee of the entire amount of prejudgment interest on his jury verdict against a third party, less the amount paid to the employer and insurer to satisfy their subrogation lien, did not constitute a double recovery. Bartell v. Sawyer, 132 N.C. App. 484, 512 S.E.2d 93 (1999).

Calculation of Prejudgment Interest. - Prejudgment interest on a workers' compensation claimant's recovery in a third-party action is to be calculated based on the amount of money claimant is entitled to receive once an employer's subrogation lien for workers' compensation benefits has been satisfied. Bartell v. Sawyer, 132 N.C. App. 484, 512 S.E.2d 93 (1999).

Employer and Insurer Not Entitled to Share of Prejudgment Interest. - The employer and insurer were entitled to recover out of the proceeds of the employee's third party action the amount of all benefits paid to the employee, but not to any of the prejudgment interest awarded. Bartell v. Sawyer, 132 N.C. App. 484, 512 S.E.2d 93 (1999).

Reimbursement. - This section mandates that the payor of benefits be reimbursed with duplicative amounts received by plaintiff employee from a civil suit. Radzisz v. Harley Davidson of Metrolina, Inc., 123 N.C. App. 602, 473 S.E.2d 655 (1996), aff'd, 346 N.C. 84, 484 S.E.2d 566 (1997).

Reimbursement of Employer and Insurer from Recovery in Action by Employee's Personal Representative. - Where the suit was instituted by the personal representative of the deceased, and the employer and its insurance carrier have taken no action except to file an affidavit of interest, this in itself would not have prevented them from being reimbursed from the recovery. Essick v. City of Lexington, 233 N.C. 600, 65 S.E.2d 220 (1951).

Amount and Reasonableness of Attorneys' Fees. - Under paragraph (f)(1)b of this section, the attorneys' fee taken from the employee's share may not exceed one-third of the amount recovered, but it is not otherwise subject to the reasonableness requirement of G.S. 97-90(c); the attorneys' fee on the subrogation interest of the employer (or its carrier) is subject to the reasonableness requirement of G.S. 97-90(c) and may not exceed one-third of the amount recovered from the third party. Hardy v. Brantley Constr. Co., 87 N.C. App. 562, 361 S.E.2d 748 (1987), rev'd on other grounds, 322 N.C. 106, 366 S.E.2d 485 (1988).

Subrogation of Lien Interest. - The Industrial Commission erred in concluding that defendant employer and insurance company were not entitled to a subrogation interest or lien interest against the proceeds received by plaintiff employee in settlement of a civil action. Radzisz v. Harley Davidson of Metrolina, Inc., 123 N.C. App. 602, 473 S.E.2d 655 (1996), aff'd, 346 N.C. 84, 484 S.E.2d 566 (1997).

Trial court erred in concluding that respondents did not have a lien against the wrongful death benefits recovered by decedent's estate because, although the General Assembly expressly subrogated the rights of an employer's insurance carrier to that of an employer, there was no language in G.S. 97-10.2 subrograting the rights of an employer to that of the beneficiaries of the workers' compensation award. Parker v. C.C. Mangum Co. (In re Estate of Bullock), 188 N.C. App. 518, 655 S.E.2d 869 (2008).

Trial court did not abuse the court's discretion in determining the amount of the workers' compensation subrogation lien since the insurers contractually obligated themselves to provide the employee with UIM coverage in satisfaction of the judgment obtained against the driver, an arbitration panel decided the employee was entitled to $285,000.00 in compensation for injuries he sustained, and the trial court then excluded court costs, attorney's fees, and interest from the amount of the judgment. Dion v. Batten, 248 N.C. App. 476, 790 S.E.2d 844 (2016).

When Amount Greater than Amount Obtained from Third Party. - Court of Appeals of North Carolina holds that when the amount of workers' compensation benefits paid by the employer and their servicing agent to an employee is greater than all amounts obtained by the employee from a third party tortfeasor, the amount of the workers' compensation lien is equal to the amount of the judgment, and shall be disbursed pursuant to G.S. 97-10.2. Dion v. Batten, 248 N.C. App. 476, 790 S.E.2d 844 (2016).

Subrogation of Carrier to Employer's Right to Payment upon Employee Reimbursement. - This section provides for the subrogation of the workers' compensation insurance carrier to the employer's right, upon reimbursement of the employee, to any payment, including uninsured/underinsured motorist insurance proceeds, made to the employee by or on behalf of a third party as a result of the employee's injury. Ohio Cas. Group v. Owens, 99 N.C. App. 131, 392 S.E.2d 647 (1990), review denied, 327 N.C. 483, 396 S.E.2d 614 (1990), overruled by McMillian v. North Carolina Farm Bureau Mut. Ins. Co., 347 N.C. 560, 495 S.E.2d 352 (1998).

Subsection (j) is independent from the other subsections in this section, and the Superior Court has discretionary authority to determine the lien amount. Wiggins v. Bushranger Fence Co., 126 N.C. App. 74, 483 S.E.2d 450 (1997), cert. denied, 346 N.C. 556, 488 S.E.2d 825 (1997).

No Condition Precedent for Subrogation Rights. - The provisions of this statute cannot logically be construed as requiring establishment of a condition precedent in the nature of a written admission or a final award before a payor of workers' compensation benefits obtains subrogation rights. Radzisz v. Harley Davidson of Metrolina, Inc., 123 N.C. App. 602, 473 S.E.2d 655 (1996), aff'd, 346 N.C. 84, 484 S.E.2d 566 (1997).

Trial Court Did Not Have to Follow Distribution Priority in Subsection (f). - In distributing settlement under subsection (j) of this section, trial court did not have to follow the distribution priority set forth in subsection (f) of this section. Allen v. Rupard, 100 N.C. App. 490, 397 S.E.2d 330 (1990), appeal withdrawn, 328 N.C. 328, 404 S.E.2d 864 (1992).

Trial Court Must Make Findings of Fact and Conclusions of Law. - The trial court, in considering request for disbursement under subsection (j) of this section, must enter order with findings of fact and conclusions of law sufficient to provide for meaningful appellate review. Allen v. Rupard, 100 N.C. App. 490, 397 S.E.2d 330 (1990), appeal withdrawn, 328 N.C. 328, 404 S.E.2d 864 (1992).

Equal Division of Proceeds Proper Exercise of Trial Court's Discretion. - Trial court did not abuse its discretion in determining that it was fair, equitable and just for injured party and insurance carrier to share equally settlement proceeds which fell far short of being sufficient to reimburse injured party for his pain, suffering and other losses; or to reimburse insurance carrier for its payment of injured party's extensive medical bills. Allen v. Rupard, 100 N.C. App. 490, 397 S.E.2d 330 (1990), appeal withdrawn, 328 N.C. 328, 404 S.E.2d 864 (1992).

Commission Approval Not Necessary for Rehabilitation Services Charges. - Insurance carrier did not need the Commission's approval for charges connected with rehabilitation services in order to obtain reimbursement for those expenses under this section because G.S. 97-90(a) does not require approval of the Commission for rehabilitation services. Roberts v. ABR Assocs., 101 N.C. App. 135, 398 S.E.2d 917 (1990).

Authority of Trial Court to Reduce Workers' Compensation Lien on Proceeds of Settlement. - G.S. 97-10.2(j) allowed a trial court to reduce the amount of a lien which a company that paid workers' compensation benefits to an injured employee asserted against the proceeds of a settlement the employee received from a third party, and given the nature of the employee's injuries, the trial court did not abuse its discretion by reducing the amount of the insurance company's lien from $168,000 to $55,667 and ordering the insurance company to pay part of the employee's litigation costs. Sherman v. Home Depot U.S.A., Inc., 160 N.C. App. 404, 588 S.E.2d 478 (2003), cert. denied sub nom. Sherman v. Home Depot United States, Inc.,358 N.C. 156, 592 S.E.2d 696 (2004).

Trial Court's Discretion. - Trial court did not abuse its discretion in reducing a workers' compensation lien on the proceeds of a widow's wrongful death settlement after taking into account the testimony, the evidence presented, the court file, and the parties' arguments; the amendment to G.S. 97-10.2(j) was applicable, making the amount of the subrogation lien a matter for the trial court's discretion without a finding that the judgment obtained by the injured employee against the third party was insufficient to satisfy the carrier's subrogation interest. Wood v. Weldon, 160 N.C. App. 697, 586 S.E.2d 801 (2003), cert. denied, 358 N.C. 550, 600 S.E.2d 469 (2004).

There is no mathematical formula or set list of factors for the trial court to consider in making its determination of a subrogation amount under G.S. 97-10.2(j); the statute plainly affords the trial court discretion to determine the appropriate amount of defendant's lien, which requires that the trial court make a reasoned choice, a judicial value judgment, which is factually supported. Wood v. Weldon, 160 N.C. App. 697, 586 S.E.2d 801 (2003), cert. denied, 358 N.C. 550, 600 S.E.2d 469 (2004).

I. IN GENERAL.

Editor's Note. - For case notes on willful injuries, see also the case notes under G.S. 97-2.

Legislative Intent. - This section is an integral part of the Workers' Compensation Act and evidences the legislature's intention to relieve an employer of the obligation to pay compensation to an employee when the accident giving rise to the employee's injuries is proximately caused by his intoxication. The oft-quoted rule that the act should be liberally construed does not license either commission or the courts to disregard the manifest intention of the legislature in enacting this section. Anderson v. Century Data Sys., Inc., 71 N.C. App. 540, 322 S.E.2d 638 (1984), cert. denied, 313 N.C. 327, 327 S.E.2d 887 (1985).

Presumption from Use of Controlled Substances. - Once an employer proves employee's use of a non-prescribed controlled substance, it is presumed that the employee was impaired; once the employer presents competent evidence that the impairment was a proximate cause of the accident, the burden shifts to the employee to rebut the presumption of impairment or to show that the impairment was not a contributing proximate cause of the accident. Willey v. Williamson Produce, 149 N.C. App. 74, 562 S.E.2d 1 (2002), cert. denied, 356 N.C. 624, 575 S.E.2d 762 (2002).

Additional Award Does Not Constitute Punitive Damages. - Ten percent additional award does not constitute punitive and exemplary damages, even though the effect of the 10 percent increase might appear to penalize an insurer, since G.S. 97-12 does not explicitly mention punitive damages, but in fact says that compensation shall be increased 10 percent; although there was no North Carolina caselaw on point, the trial court followed caselaw under a similar statute, Ky. Rev. Stat. Ann. § 342.165(1). Vogler v. Branch Erections Co., 181 N.C. App. 457, 640 S.E.2d 419 (2007).

Act Eliminates Fault of Worker as Basis for Denying Recovery. - Compensation acts were intended to eliminate the fault of the worker as a basis for denying recovery. Hartley v. North Carolina Prison Dep't, 258 N.C. 287, 128 S.E.2d 598 (1962).

OSHA Regulations Applicable. - By virtue of G.S. 95-131(a), the requirements of 29 C.F.R. § 1910.22(b)(1) are a statutory requirement that brings an employee's injury and an employer's subsequent citation within the scope of G.S. 97-12. Brown v. Kroger Co., 169 N.C. App. 312, 610 S.E.2d 447 (2005).

Employee's Negligence Does Not Bar Him from Compensation. - An act of negligence by an employee while he was in the performance of his duty of waiting for his foreman did not bar the employee's right to compensation for the accident resulting from the negligence. Stubblefield v. Watson Elec. Constr. Co., 277 N.C. 444, 177 S.E.2d 882 (1970).

Not even gross negligence is a defense to a compensation claim. Hartley v. North Carolina Prison Dep't, 258 N.C. 287, 128 S.E.2d 598 (1962).

Only intoxication or injury intentionally inflicted will defeat a claim. Hartley v. North Carolina Prison Dep't, 258 N.C. 287, 128 S.E.2d 598 (1962).

The negligence of the employee does not disbar him from compensation, except only in cases where the injury is occasioned by his intoxication or willful intention to injure himself or another. Archie v. Greene Bros. Lumber Co., 222 N.C. 477, 23 S.E.2d 834 (1943).

Forfeiture for Intoxication Only If Cause of the Injury. - This statute does not provide for forfeiture of benefits if an employee was intoxicated at the time of the injury, but only if the injury or death "was occasioned by the intoxication." Lassiter v. Town of Chapel Hill, 15 N.C. App. 98, 189 S.E.2d 769 (1972); Inscoe v. DeRose Indus., Inc., 292 N.C. 210, 232 S.E.2d 449 (1977).

The employer has the burden of proof on the affirmative defense of intoxication. However, the employer is not required to come forward with evidence disproving all possible causes other than intoxication. Nor is he required to prove that intoxication was the sole proximate cause of the employee's injuries. Anderson v. Century Data Sys., Inc., 71 N.C. App. 540, 322 S.E.2d 638 (1984), cert. denied, 313 N.C. 327, 327 S.E.2d 887 (1985).

In asserting the defense of intoxication set out in this section, the employer is required to prove only that the employee's intoxication was more probably than not a cause in fact of the accident resulting in injury to the employee. Anderson v. Century Data Sys., Inc., 71 N.C. App. 540, 322 S.E.2d 638 (1984), cert. denied, 313 N.C. 327, 327 S.E.2d 887 (1985).

This section places the burden of defense based upon intoxication on the defendants, to prove intoxication and to prove that death was proximately caused thereby. Smith v. Central Transp. & Liberty Mut. Ins. Co., 51 N.C. App. 316, 276 S.E.2d 751 (1981).

The employer has the burden of proving intoxication as an affirmative defense. He must prove not only that the employee was intoxicated at the time of the accident causing the injury or death, but also that the accident was proximately caused by the employee's intoxication. Torain v. Fordham Drug Co., 79 N.C. App. 572, 340 S.E.2d 111 (1986).

The employer need not disprove all other possible causes of the accident and injury, nor need he prove that intoxication was the sole proximate cause of the accident; he is only required to prove that the employee's intoxication was more probably than not a proximate cause of the accident and resulting injury. Torain v. Fordham Drug Co., 79 N.C. App. 572, 340 S.E.2d 111 (1986).

Intoxication, willful intention and being under the influence of a controlled substance are affirmative defenses which place the burden of proof on the employer in a claim for workers' compensation. Harvey v. Raleigh Police Dep't, 85 N.C. App. 540, 355 S.E.2d 147, cert. denied, 320 N.C. 631, 360 S.E.2d 86 (1987).

Evidence of Intoxication. - The Industrial Commission had the power to determine whether physician was qualified to testify as an expert in stating his opinion as to deceased employee's intoxication at 2:50 p.m., based on a blood alcohol test administered at 5:00 p.m. Torain v. Fordham Drug Co., 79 N.C. App. 572, 340 S.E.2d 111 (1986).

North Carolina Industrial Commission's finding of fact under G.S. 97-12 that the worker's fall was caused by his intoxication was supported by competent evidence of record where there was witness testimony that he smelled of alcohol and had a blood alcohol level of 0.22 percent at the time he fell off the roof. Gratz v. Hill, 189 N.C. App. 489, 658 S.E.2d 523 (2008).

Evidence of Impairment. - Urine toxicology test that indicated the presence of cannabinoids but that did not provide a level or concentration of cannabinoid did not address an employee's impairment and could not be used to show that the employee was impaired at the time of a workplace accident so as to bar recovery of workers' compensation under G.S. 97-12(2). Moore v. Sullbark Builders, Inc., 198 N.C. App. 621, 680 S.E.2d 732 (2009).

Finding of Intoxication by Commissioner Not Required. - This statute does not require the Commissioner to find whether the employee was intoxicated or not as a matter of law. Lassiter v. Town of Chapel Hill, 15 N.C. App. 98, 189 S.E.2d 769 (1972); Inscoe v. DeRose Indus., Inc., 292 N.C. 210, 232 S.E.2d 449 (1977).

Subdivision (3) presents an affirmative defense to a claim under the Workers' Compensation Act. It requires a finding that the claimant had the willful intention to injure or kill himself or another and that this intention was the proximate cause of the claimant's injuries. Rorie v. Holly Farms Poultry Co., 306 N.C. 706, 295 S.E.2d 458 (1982).

Burden Under Subdivision (3). - Since subdivision (3) of this section is an affirmative defense, the burden of proof is on the employer to show that compensation should be denied notwithstanding the fact that the injury arose out of and in the course of the employment. Rorie v. Holly Farms Poultry Co., 306 N.C. 706, 295 S.E.2d 458 (1982).

Cause of Fact Standard Applicable to Subdivision (3). - Using a cause in fact standard, the claimant's injuries must be the result of a natural and continuous sequence of events, unbroken by a new independent cause, stemming from the claimant's willful intention to injure himself or another. It is also necessary that some injury be foreseeable from the claimant's actions, although the extent or nature of the injury suffered need not have been foreseen. Rorie v. Holly Farms Poultry Co., 306 N.C. 706, 295 S.E.2d 458 (1982).

Under subdivision (3) of this section, for the claimant's injuries to be proximately caused by her actions, the willful intention of the claimant must be more than a cause of her injuries. However, it need not be the sole cause. Rather, a cause in fact standard is required. Rorie v. Holly Farms Poultry Co., 306 N.C. 706, 295 S.E.2d 458 (1982).

Injuries Must Be Proximately Caused by Claimant's Willful Intent. - Once willful intention has been established, in order to deny recovery it is necessary to find that the claimant's injuries were "proximately caused by" an act resulting from such intent. Rorie v. Holly Farms Poultry Co., 306 N.C. 706, 295 S.E.2d 458 (1982).

But This Need Not Be the "Sole" Proximate Cause. - This section was designed to be an exception to the general rule that the employee would receive compensation for an injury arising out of and in the course of employment. To utilize a "sole" proximate cause standard would virtually vitiate the statute and defeat the express will of the General Assembly. Whenever an employee intends to injure another, that employee will usually not be injured unless the intended victim retaliates. The actions of the intended victim could always be considered a cause of the claimant's injuries, and therefore the willful intention of the claimant would rarely if ever be the sole cause. Rorie v. Holly Farms Poultry Co., 306 N.C. 706, 295 S.E.2d 458 (1982).

The sole proximate cause standard is inapplicable to this section. Rorie v. Holly Farms Poultry Co., 306 N.C. 706, 295 S.E.2d 458 (1982).

Need Not Show Intent to Inflict "Serious" Injury. - Neither acts by the claimant, nor mere words spoken by the claimant and unaccompanied by any overt act, will be sufficient to bar compensation, unless the willful intent to injure is apparent from the context and nature of the physical or verbal assault. However, no intent to inflict "serious" injury must be shown before the statutory bar to recovery will apply. The bar to recovery, set forth in subdivision (3) of this section, applies when a general willful intent to inflict some injury is established by the evidence. Rorie v. Holly Farms Poultry Co., 306 N.C. 706, 295 S.E.2d 458 (1982).

Crucial Question Is Willful Intent. - The crucial question is whether the claimant had a willful intention to injure the other employee. The fact that the other employee may have produced the knife and therefore escalated the fight is immaterial. The claimant may not have intended to kill or even seriously injure the other employee, but subdivision (3) of this section does not require that any such intent be shown before recovery will be denied. Rorie v. Holly Farms Poultry Co., 306 N.C. 706, 295 S.E.2d 458 (1982).

Suicide Induced by Injury. - In those cases where the injuries suffered by the deceased result in his becoming devoid of normal judgment and dominated by a disturbance of mind directly caused by his injury and its consequences, his suicide cannot be considered "willful" within the meaning and intent of the act. Petty v. Associated Transp., 276 N.C. 417, 173 S.E.2d 321 (1970).

Suicide cannot be intentionally self-inflicted if, in spite of the act being one of conscious volition, the employee, because of mental condition resulting from the injury, is unable to control the impulse to kill himself. Petty v. Associated Transp., 276 N.C. 417, 173 S.E.2d 321 (1970).

If the sole motivation controlling the will of the employee when he knowingly decides to kill himself is the pain and despair caused by the injury, and if his will itself is deranged and disordered by these consequences of the injury, then it seems wrong to say that this exercise of will is "independent," or that it breaks the chain of causation. Rather, it seems to be in the direct line of causation. Petty v. Associated Transp., Inc., 276 N.C. 417, 173 S.E.2d 321 (1970); Thompson v. Lenoir Transf. Co., 48 N.C. App. 47, 268 S.E.2d 534, cert. denied, 301 N.C. 405, 273 S.E.2d 450 (1980).

While suicide may be an independent intervening cause in some cases, it is certainly not so in those cases where the incontrovertible evidence shows that, without the injury, there would have been no suicide. Petty v. Associated Transp., 276 N.C. 417, 173 S.E.2d 321 (1970).

An employee who becomes mentally deranged and deprived of normal judgment as a result of a compensable accident and commits suicide in consequence does not act willfully within the meaning of this section. Elmore v. Broughton Hosp., 76 N.C. App. 582, 334 S.E.2d 231, cert. denied, 315 N.C. 390, 338 S.E.2d 879 (1985).

An employee's suicide caused by an occupational disease is compensable under the Workers' Compensation Act. This is so because G.S. 97-52 makes it clear that the death of an employee resulting from an occupational disease shall be treated as the happening of an injury by accident. Harvey v. Raleigh Police Dep't, 85 N.C. App. 540, 355 S.E.2d 147, cert. denied, 320 N.C. 631, 360 S.E.2d 86 (1987).

When suicide is the "end result" of an injury sustained in a compensable accident, it is an intervening act but not an intervening cause. An intervening cause is one occurring entirely independent of a prior cause. When a first cause produces a second cause that produces a result, the first cause is a cause of that result. Petty v. Associated Transp., 276 N.C. 417, 173 S.E.2d 321 (1970).

Compensation for Suicide. - Using the statute to deny compensation for suicides arising out of the employment is anomalous, because to do so produces a narrower basis for recovery under the remedial workers' compensation acts than would have been possible under common-law tort doctrine. Petty v. Associated Transp., 276 N.C. 417, 173 S.E.2d 321 (1970).

A ruling prohibiting compensation to the dependents of an employee who intentionally killed himself is not compatible with the objective of the Workers' Compensation Act, which is to provide for the injured worker, or his dependents in the event of his death, at the cost of the industry which he was serving. To this end, the rule is that benefits under the act should not be denied by a technical, narrow, and strict construction. Petty v. Associated Transp., 276 N.C. 417, 173 S.E.2d 321 (1970).

Failure to Use Safety Appliances or Observe Rules. - This section does not deny compensation when it appears that an injury was caused by the willful failure of an employee to use a safety appliance, or by the willful breach of a rule or regulation adopted by the employer and approved by the Industrial Commission, but only subjects the injured employee to the penalty of a reduction in the compensation to be awarded. Archie v. Greene Bros. Lumber Co., 222 N.C. 477, 23 S.E.2d 834 (1943).

An intentional violation of an approved safety rule of which the employee had prior notice will not defeat, but will only reduce the amount of an award. Hartley v. North Carolina Prison Dep't, 258 N.C. 287, 128 S.E.2d 598 (1962).

Negligence Standard Improperly Applied. - Industrial Commission's denial of benefits was vacated because the Commission's findings characterizing the speed and manner in which an employee operated a forklift did not address if the employee operated the forklift in furtherance of, or incidental to, the employee's job duties and the employer's interest and appeared to impute negligence to the employee, showing the Commission reached the decision under a misapprehension of law. Weaver v. Dedmon, 253 N.C. App. 622, 801 S.E.2d 131 (2017).

Legal Standard of Causation Correctly Applied. - Competent evidence supported commission's findings that although plaintiff was under the influence of alcohol at the time of the accident, other factors caused the accident; therefore, intoxication was not a proximate cause of accident, and commission correctly applied the legal standard of causation required under subdivision (1) of this section. Suggs v Snow Hill Milling Co., 100 N.C. App. 527, 397 S.E.2d 240 (1990), cert. denied, 329 N.C. 276, 407 S.E.2d 851 (1991).

Proximate Cause Is Question for Finder of Fact. - The determination of the proximate cause of the claimant's injuries is a question for the finder of fact. Rorie v. Holly Farms Poultry Co., 306 N.C. 706, 295 S.E.2d 458 (1982).

Insurer Obligated to Pay An Additional Award Did Not Constitute Punitive Damages. - North Carolina Insurance Guaranty Association (NCIGA) was obligated to pay a 10 percent additional award as the additional award did not constitute punitive and exemplary damages, even though the effect of the 10 percent increase might appear to penalize NCIGA, since G.S. 97-12 did not explicitly mention punitive damages, but in fact said that compensation would be increased 10 percent; further, the language of an insurance policy did not preclude NCIGA's liability for the increase. Vogler v. Branch Erections Co., 181 N.C. App. 457, 640 S.E.2d 419 (2007).

Applied in Yates v. Hajoca Corp., 1 N.C. App. 553, 162 S.E.2d 119 (1968); Petty v. Associated Transp., 4 N.C. App. 361, 167 S.E.2d 38 (1969); McCuiston v. Addressograph-Multigraph Corp., 59 N.C. App. 76, 295 S.E.2d 490 (1982); Pittman v. Twin City Laundry & Cleaners, 61 N.C. App. 468, 300 S.E.2d 899 (1983); Patterson v. Gaston County, 62 N.C. App. 544, 303 S.E.2d 182 (1983).

Cited in Thomason v. Red Bird Cab Co., 235 N.C. 602, 70 S.E.2d 706 (1952); Brewer v. Powers Trucking Co., 256 N.C. 175, 123 S.E.2d 608 (1962); Hoyle v. Isenhour Prick & Tile Co., 306 N.C. 248, 293 S.E.2d 196 (1982); Coleman v. City of Winston-Salem, 57 N.C. App. 137, 291 S.E.2d 155 (1982); Diaz v. United States Textile Corp., 60 N.C. App. 712, 299 S.E.2d 843 (1983); Prevette v. Clark Equip. Co., 62 N.C. App. 272, 302 S.E.2d 639 (1983); Barrino v. Radiator Specialty Co., 315 N.C. 500, 340 S.E.2d 295 (1986); Harrelson v. Soles, 94 N.C. App. 557, 380 S.E.2d 528 (1989); Hassell v. Onslow County Bd. of Educ., 362 N.C. 299, 661 S.E.2d 709 (2008); Reaves v. Indus. Pump Serv., 195 N.C. App. 31, 671 S.E.2d 14 (2009); Willard v. VP Builders, Inc., 233 N.C. App. 773, 757 S.E.2d 682 (2014).

II. ILLUSTRATIVE CASES.

"Psychological Autopsy" Properly Admitted. - "Psychological autopsy" on decedent, involving interviewing family members and reviewing records to determine the probable cause of death or the decedent's state of mind at the time of his death, was competent and properly admitted for the purpose of determining the mental state of the deceased at the time of his suicide in a workers' compensation proceeding wherein plaintiff alleged that decedent's suicide was caused by a dysthymic disorder (depression) caused by his employment as a police officer. Harvey v. Raleigh Police Dep't, 85 N.C. App. 540, 355 S.E.2d 147, cert. denied, 320 N.C. 631, 360 S.E.2d 86 (1987).

Where it was shown that police chief 's death resulted from a bullet wound, such showing raised a prima facie case only of death by accident, placing upon the employer the burden of going forward with evidence to show that the employee killed himself within the exemption or forfeiture under this section. McGill v. Town of Lumberton, 215 N.C. 752, 3 S.E.2d 324 (1939), in which police chief was found dead in town building, his gun by his side; compensation was denied by the Commission, reversed and remanded by the Supreme Court, three justices dissenting; a subsequent award of compensation was affirmed in McGill v. Town of Lumberton, 218 N.C. 586, 11 S.E.2d 873 (1940).

Where a department store manager was found dead in his store early in the morning, a pistol by his side, with no other evidence of how he met his death, the court held that while there might be a presumption of injury by accident, the award of compensation was defeated because there was no presumption or evidence to support a conclusion that the injury arose out of the employment. The causal connection between the injury and the employment was not apparent as was the case in McGill v. Lumberton. Bolling v. Belk-White Co., 228 N.C. 749, 46 S.E.2d 838 (1948).

Employer's Failure to Meet Burden. - Given the presence of competent evidence on both sides of the issue of whether intoxication was a proximate cause of death, the employer did not carry its burden on this issue. Strickland v. Carolina Classics Catfish, Inc., 119 N.C. App. 97, 458 S.E.2d 10 (1995), aff'd, 342 N.C. 640, 466 S.E.2d 276 (1996).

All of the competent evidence supported the Commission's finding that defendants did not meet their burden of showing that plaintiff's use of controlled substances was a proximate cause of his injury. Bursey v. Kewaunee Scientific Equip. Corp., 119 N.C. App. 522, 459 S.E.2d 40 (1995).

Injury Held Result of Intoxication. - When considered together, the evidence with respect to the manner in which deceased employee was driving, the presence of an odor of alcohol about his person, his statement that he had been drinking, and the level of alcohol found in his blood supported the Commission's finding of fact that he was intoxicated at the time of the accident, and that his intoxication was a proximate cause of the accident and his resulting injuries and death, as did evidence negating brake failure as a cause of the accident. Torain v. Fordham Drug Co., 79 N.C. App. 572, 340 S.E.2d 111 (1986).

There was competent evidence in the record to support a finding that the deceased was intoxicated where decedent's blood alcohol level of .202, would have rendered her borderline between simple impairment and extreme excitement and confusion. Sidney ex rel. Sidney v. Raleigh Paving & Patching, Inc., 109 N.C. App. 254, 426 S.E.2d 424 (1993).

Injury Held Not Result of Intoxication. - In Brooks v. Carolina Rim & Wheel Co., 213 N.C. 518, 196 S.E. 835 (1938), it was held that the evidence was sufficient to support the finding of the Industrial Commission that the accident causing injury was not the result of the employee's intoxication, although defendants introduced evidence in conflict therewith. See Gant v. Crouch, 243 N.C. 604, 91 S.E.2d 705 (1956).

Despite fact that employee's blood alcohol level was 387 milligrams per liter (.387) when measured following his accident, the Industrial Commission found that the employee's intoxication was not the proximate cause of his injury sustained when employee's hand got stuck in a lumber conveyor. Gaddy v. Anson Wood Prods., 92 N.C. App. 483, 374 S.E.2d 477 (1988).

Where the Commission's finding plaintiff was injured because he was attempting to help a fellow employee was substantially supported by the evidence and sufficient to explain the cause of plaintiff 's injury, that plaintiff may have erred in judgment did not mandate the conclusion that the error was the result of his intoxication. Gaddy v. Anson Wood Prods., 92 N.C. App. 483, 374 S.E.2d 477 (1988).

Commission's finding that claimant's intoxication was not a proximate cause of accident was supported by evidence, even though claimant's blood alcohol level was .11 to .13 in terms of breathalyzer test at time of accident, where evidence showed that claimant had pre-existing mental and visual handicap and that equipment provided by employer malfunctioned, and his supervisor testified that he did not smell alcohol on claimant's breath and felt perfectly safe in having claimant operate equipment. Suggs v Snow Hill Milling Co., 100 N.C. App. 527, 397 S.E.2d 240 (1990), cert. denied, 329 N.C. 276, 407 S.E.2d 851 (1991).

Injury Held Not Result of Alcohol Withdrawal Seizure. - Where doctor stated that it would not be normal to have an alcohol withdrawal seizure after more than three days and that an alcohol withdrawal seizure probably would not happen five days after consuming alcohol and plaintiff's blood alcohol level was 0.000 at the time of the incident, the Industrial Commission did not err in finding that plaintiff's injury was not approximately caused by an alcohol withdrawal seizure. Tharp v. Southern Gables, Inc., 125 N.C. App. 364, 481 S.E.2d 339 (1997), cert. denied, 346 N.C. 184, 486 S.E.2d 219 (1997).

Where there was insufficient evidence to establish that the blood alcohol test was scientifically reliable or correctly administered, it could not be used to deny plaintiff's claim pursuant to the intoxication defense in subdivision (1). Johnson v. Charles Keck Logging, 121 N.C. App. 598, 468 S.E.2d 420 (1996).

Impairment by Cocaine. - As the employer produced substantial competent evidence to show that its employee was impaired by cocaine before his fatal truck crash, the Commission's award of workers' compensation death benefits to the employee's dependant would be reversed. Willey v. Williamson Produce, 149 N.C. App. 74, 562 S.E.2d 1 (2002), cert. denied, 356 N.C. 624, 575 S.E.2d 762 (2002).

Substance Abuse as Intervening Cause of Disabling Psychosis. - Finding of the Commission that although plaintiff 's on the job hand injury, for which he was compensated, was a contributing factor in his subsequent disabling psychosis, his willful substance abuse was an intervening cause which prohibited an award of benefits was supported by the evidence and would not be disturbed. Wagoner v. Douglas Battery Mfg. Co., 89 N.C. App. 67, 365 S.E.2d 298, cert. denied, 322 N.C. 486, 371 S.E.2d 274 (1988).

Death Occasioned by Violation of Safety Statute and Intoxication. - Findings, supported by evidence, that in overtaking a truck preceding him on the highway, employee's car left skid marks for 75 feet straight in a line forward and then skid marks sideways across the center of the highway to his left, and that his car was struck by a car approaching from the opposite direction, together with evidence that his blood contained .20 percent of alcohol, were held sufficient to show that the accident resulted from the employee's violation of a safety statute and to support the finding of the Industrial Commission that the employee's death was occasioned by his intoxication, and judgment denying compensation was affirmed. Osborne v. Colonial Ice Co., 249 N.C. 387, 106 S.E.2d 573 (1959).

Employer's Willful Failure to Comply With Safety Standards. - When an injury or death is caused by the willful failure of an employer to comply with any statutory requirement or any lawful order of the North Carolina Industrial Commission, compensation shall be increased 10 percent. An act is considered willful when there exists a deliberate purpose not to discharge some duty necessary to the safety of the person or property of another, a duty assumed by contract or imposed by law. Jenkins v. Easco Aluminum, 165 N.C. App. 86, 598 S.E.2d 252 (2004).

Suicide Induced by Insanity. - Evidence was sufficient to support a finding that by reason of insanity a suicide was the result of an uncontrollable impulse, or in a delirium of frenzy without conscious volition to cause death. Painter v. Mead Corp., 258 N.C. 741, 129 S.E.2d 482 (1963).

Rejoining Course of Employment. - Where employee traveled to New York, slept in a motel and ate at restaurants at the direction of his employer, and at the time of the accident resulting in his death, he was returning to his motel from the place where he had eaten dinner, even if his remaining at the restaurant to drink alcohol and watch a ball game constituted a personal endeavor, intoxication was not a cause of his death, and sufficient evidence existed to support the Industrial Commission's finding that he had rejoined his course of employment at the time of the accident. Cauble v. Soft-Play, Inc., 124 N.C. App. 526, 477 S.E.2d 678 (1996).

Unsafe Press Brake Machine. - The Commission did not make sufficient findings of fact to support its conclusion that plaintiff employee was not entitled to a 10% increase in compensation for defendant's alleged violation of statutory safety requirements; additionally, it inexplicably failed to make any findings based on the testimony of plaintiff's coworker regarding the facts that (1) the press brake machine operated by plaintiff was not "guarded," as defined by the North Carolina OSHA manual, and (2) the machine did not prevent entry of the hands and fingers into the point of operation. Jenkins v. Easco Aluminum Corp., 142 N.C. App. 71, 541 S.E.2d 510 (2001).

Reversal by the North Carolina Industrial Commission of a previous award was upheld on appeal where sufficient evidence existed entitling an injured employee to temporary disability payments and prosthetic fingers at the employer's expense. Increase in the employee's compensation award of 10 percent was upheld where the employer had violated OSHA standards by failing to have a guard on a brake press machine and the employee established that the failure to have the guard was the proximate cause of her injury. Jenkins v. Easco Aluminum, 165 N.C. App. 86, 598 S.E.2d 252 (2004).

Employee who injured himself when a crane he was improperly operating toppled over was not barred from workers' compensation award because there was no evidence that his injuries were the result of a willful intention to injure himself, or a willful breach of a safety rule or procedure adopted by his employer. Harris v. Thompson Contrs., Inc., 148 N.C. App. 472, 558 S.E.2d 894 (2002), aff'd, 356 N.C. 664, 576 S.E.2d 323 (2003).

Employer Liability Based on OSHA Regulation. - Full Commission of the North Carolina Industrial Commission did not err by awarding an injured employee a 10 percent increase in compensation, after the employee tripped and fell over an extension cord in a hallway at work, because the presence of the extension cord in the hallway violated a federal regulation that was adopted by the State of North Carolina pursuant to G.S. 95-131(a) of the North Carolina Occupational Safety and Health Act, G.S. 95-126 et seq., and the employer was put on sufficient notice regarding the duties, consequences, and application of the North Carolina Workers' Compensation Act, G.S. 91-1 et seq., and its relevant safety standards. Brown v. Kroger Co., 169 N.C. App. 312, 610 S.E.2d 447 (2005).

Insurance Guaranty Association Obligated to Pay Additional Award. - Employee's workers' compensation claim, including a 10 percent increase in compensation awarded pursuant to G.S. 97-12, was a "covered claim" as defined by G.S. 58-48-20 since, inter alia, the employer's policy with its insurer provided that the insurer would pay promptly when due the benefits required of the insured by the workers' compensation law, and the policy stated that the terms of the insurance policy that conflicted with the workers' compensation law were changed by to conform to that law. Vogler v. Branch Erections Co., 181 N.C. App. 457, 640 S.E.2d 419 (2007).

I. IN GENERAL.

Editor's Note. - See also the case notes under G.S. 97-2.

Purchase of Insurance Subjects Employer and Employees to Act. - By purchasing a workers' compensation insurance policy, the employer and his employees become subject to the act and continue to be "so bound unless waived as provided in this Article." Crawford v. Pressley, 6 N.C. App. 641, 171 S.E.2d 197 (1969).

Failure of Third-Party Insurance Agent to Renew Policy Does Not Constitute Waiver. - By purchasing a workers' compensation insurance policy, the employer and his employees become subject to the act and continue to be "so bound unless waived as provided in this Article." The failure of a third party, such as the insurance agent, to fulfill his agreement to see that other insurance was obtained upon the cancellation of the insurance policy does not constitute a waiver "as provided in this Article." Crawford v. Pressley, 6 N.C. App. 641, 171 S.E.2d 197 (1969). But see Wiggins v. Rufus Tart Trucking Co., 63 N.C. App. 542, 305 S.E.2d 749 (1983).

A self-insured employer is presumptively subjected to the provisions of the Act only for the life of the policy. Once the policy ends, this presumption ends. Wiggins v. Rufus Tart Trucking Co., 63 N.C. App. 542, 305 S.E.2d 749 (1983).

For case as to former provisions of subsection (b) of this section that proof that the employer obtained insurance and filed claim should be prima facie evidence that the employer and employee had elected to be bound by the act, see Gassaway v. Gassaway & Owens, Inc., 220 N.C. 694, 18 S.E.2d 120 (1942).

Applied in Rape v. Town of Huntersville, 214 N.C. 505, 199 S.E. 736 (1938); Bennett v. Hertford County Bd. of Educ., 69 N.C. App. 615, 317 S.E.2d 912 (1984).

Cited in Borders v. Cline, 212 N.C. 472, 193 S.E. 826 (1937); Horney v. Meredith Swimming Pool Co., 267 N.C. 521, 148 S.E.2d 554 (1966); Crawford v. General Ins. & Realty Co., 266 N.C. 615, 146 S.E.2d 651 (1966); Patterson v. L.M. Parker & Co., 2 N.C. App. 43, 162 S.E.2d 571 (1968); Hicks v. Brown Shoe Co., 64 N.C. App. 144, 306 S.E.2d 543 (1983); State v. Frazier, 142 N.C. App. 207, 541 S.E.2d 800 (2001); Burgess v. Smith, 260 N.C. App. 504, 818 S.E.2d 164 (2018).

II. CASUAL EMPLOYEES.

Employment in Employer's Regular Course of Business Not Casual. - Two employees were hired by a fertilizer dealer "whenever a carload of fertilizer arrived, to unload and deliver the fertilizer." This was held not to be "casual" employment, but "work pertaining to the regular course of defendant's business." Hunter v. Peirson, 229 N.C. 356, 49 S.E.2d 653 (1948).

Employment continuously for five or six weeks in construction of facilities for handling material in defendant's plant could not be held to be either casual or not in the course of defendant's business. Smith v. Southern Wastepaper Co., 226 N.C. 47, 36 S.E.2d 730 (1946).

Plaintiff who had been employed full-time for three months prior to accident, and who also worked on Saturdays by choice and with the agreement of his employer, was not merely a casual employee. Murray v. Biggerstaff, 81 N.C. App. 377, 344 S.E.2d 550, cert. denied, 318 N.C. 696, 350 S.E.2d 858 (1986).

Civilian Summoned by Forest Warden to Help Extinguish Fire. - A civilian who had been summoned by a forest warden to assist in extinguishing a fire was held to be not a casual employee. Moore v. State, 200 N.C. 300, 156 S.E. 806 (1930).

III. FARM LABORERS.

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Nearness to Planting, Cultivation, etc. - Whether an employee is a farm laborer depends, in a large degree, upon the nearness of his occupation to the planting, cultivation, and harvesting of crops. Hinson v. Creech, 286 N.C. 156, 209 S.E.2d 471 (1974).

Emphasis upon Nature of Employee's Tasks. - In considering the question of whether an employee is a farm laborer, a majority of the jurisdictions have placed emphasis upon the nature of the employee's work rather than upon the nature of the employer's business. Hinson v. Creech, 286 N.C. 156, 209 S.E.2d 471 (1974).

Although the character of the "employment" of an employee must be determined from the "whole character" of his employment and not upon the particular work he is performing at the time of his injury, nevertheless the coverage of an employee under the act is dependent upon the character of the work he is hired to perform and not upon the nature and scope of his employer's business. Hinson v. Creech, 286 N.C. 156, 209 S.E.2d 471 (1974).

Employee of State Engaged in Farm Labor Is Covered by Act. - An employee of the State engaged in farm labor was covered by the act, as the exemption was intended for the protection of farmers as an occupational class and G.S. 97-2(2) includes all State "officers and employees" except those elected or appointed by the Governor or General Assembly. Barbour v. State Hosp., 213 N.C. 515, 196 S.E. 812 (1938).

Plaintiff, who was employed to process oats, soybeans and barley through the gin process, and to do other work incidental to the ginning operation, was not a farm laborer under subsection (b) of this section, and the fact that plaintiff was operating a tractor in a field in which crops were eventually to be planted when he was injured, during a one-time excursion out of the ginning process and into an activity more akin to farming or agricultural labor, did not interrupt his compensation coverage. Murray v. Biggerstaff, 81 N.C. App. 377, 344 S.E.2d 550, cert. denied, 318 N.C. 696, 350 S.E.2d 858 (1986).

Laborer in Large-Scale Commercial Production, etc., of Chicken Eggs. - The duties of employee, consisting of cleaning, grading, packaging and delivering eggs, keeping records of sales and collecting the eggs delivered, were sufficiently removed from the normal process of agriculture to prevent her exclusion from coverage under the Workers' Compensation Act as a "farm laborer." Hinson v. Creech, 286 N.C. 156, 209 S.E.2d 471 (1974).

Insurance carrier was estopped from denying the plaintiff 's status as an employee when he was injured, even though the plaintiff was a working partner in a farming operation, where the carrier had treated the plaintiff as an employee before the injury, and had accepted the benefits of that status. Garrett v. Garrett & Garrett Farms, 39 N.C. App. 210, 249 S.E.2d 808 (1978), cert. denied, 296 N.C. 736, 254 S.E.2d 178 (1979).

IV. DOMESTIC SERVANTS.

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Dual Employment. - Plaintiff was employed for a single wage to do janitorial, window cleaning, and delivery work at defendant's paint store and also to do janitor and garden work at defendant's home. He was paid at the store. His injuries arose from an accident connected with lawn mowing at the employer's home. An award by the Commission was affirmed in the superior court but reversed on the insurance carrier's appeal. The personal work done for the employer was not within the coverage of the act. Burnett v. Palmer-Lipe Paint Co., 216 N.C. 204, 4 S.E.2d 507 (1939).

V. NUMBER OF EMPLOYEES.

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Editor's Note. - The cases cited below were decided prior to the 1987 amendment to subsection (b) of this section, which changed the regular employment requirement to three employees.

Whether or not the minimum number of persons are regularly employed in one business is a jurisdictional matter that cannot be waived. Dependents of Thompson v. Johnson Funeral Home, 205 N.C. 801, 172 S.E. 500 (1934), where the jurisdiction of the Industrial Commission was first challenged in an appeal from the Commission to the superior court. See same case on rehearing, 208 N.C. 178, 179 S.E. 801 (1935), noted critically in 14 N.C.L. Rev. 76 (1936).

The requirement that five (now three) or more employees be regularly employed in the same business or establishment is jurisdictional. Cain v. Guyton, 79 N.C. App. 696, 340 S.E.2d 501, aff'd, 318 N.C. 410, 348 S.E.2d 595 (1986).

The plaintiff has the burden of proving that the employer regularly employed five (now three) or more employees. Cain v. Guyton, 79 N.C. App. 696, 340 S.E.2d 501, aff'd, 318 N.C. 410, 348 S.E.2d 595 (1986).

Employment of the Minimum Number of Persons or More Must Affirmatively Appear. - It must appear affirmatively by evidence or by admission of record that a defendant sought to be held liable under this Chapter had in his employ five (now three) or more employees in order to sustain the jurisdiction of the Commission. Chadwick v. North Carolina Dep't of Conservation & Dev., 219 N.C. 766, 14 S.E.2d 842 (1941). See also Hanks v. Southern Pub. Utils. Co., 204 N.C. 155, 167 S.E. 560 (1933).

To sustain the jurisdiction of the Commission, it must affirmatively appear that the employer which it undertakes to bind by its award had as many as five (now three) men in his or its employment. Letterlough v. Atkins, 258 N.C. 166, 128 S.E.2d 215 (1962).

Evidence showing that a defendant had in his employ five (now three) or more employees must affirmatively appear in the record to sustain the jurisdiction of the Industrial Commission over the claim. Durham v. McLamb, 59 N.C. App. 165, 296 S.E.2d 3 (1982).

Number of workers on job site on date of injury, standing alone, is not determinative of the issue. If the defendant had four (now three) or more "regularly employed" employees, the fact that he fell below the minimum requirement on the actual date of injury would not preclude coverage. Durham v. McLamb, 59 N.C. App. 165, 296 S.E.2d 3 (1982).

Where Number of Employees Varies. - Defendant employed three employees regularly. Two additional employees had been hired for at least a part of each week for two preceding months. It was held that the jurisdictional requirement of five (now three) regular employees was met. Hunter v. Peirson, 229 N.C. 356, 49 S.E.2d 653 (1948).

Where Employer Conducts Several Distinct Businesses. - Where the employer conducts several distinct businesses and in each employs less than the requisite number required to bring himself within the act, he is not subject to the act. This is true even though the businesses are under the same roof. Aycock v. Cooper, 202 N.C. 500, 163 S.E. 569 (1932).

Reviewing Court Must Make Independent Determination. - Whether the employer had the number of employees required to subject him to the Workers' Compensation Act is a question of jurisdictional fact, and the reviewing court is required to review and consider the evidence and make an independent determination. Durham v. McLamb, 59 N.C. App. 165, 296 S.E.2d 3 (1982).

Reversal of Commission's Award Where Number of Employees Not Affirmatively Shown. - When it is not made to affirmatively appear that the defendant sought to be held liable under this Chapter had in his employ five (now three) or more employees, the Commission's award of compensation against him must be reversed. Chadwick v. North Carolina Dep't of Conservation & Dev., 219 N.C. 766, 14 S.E.2d 842 (1941).

Where the findings of facts of the Industrial Commission that the deceased was an employee of the defendant and that the defendant employed more than five (now three) workers are not supported by any evidence in the hearing before it, upon appeal to the superior court the award should be set aside and vacated. Poole v. Signom, 202 N.C. 172, 162 S.E. 198 (1932).

Remand to Determine Number of Employees. - It is not error for the superior court to remand a proceeding in order that the facts with respect to the number of employees in the employ of the defendant at the time the employee was injured might be ascertained by the Industrial Commission. Letterlough v. Atkins, 258 N.C. 166, 128 S.E.2d 215 (1962).

Demurrer Properly Overruled. - A demurrer to an action for death of an employee, on the ground that the action was cognizable only by the Industrial Commission, was properly overruled when it did not appear on the face of the complaint that the defendant employed more than five (now three) men in this State. Hanks v. Southern Pub. Utils. Co., 204 N.C. 155, 167 S.E. 560 (1933). See Southerland v. Harrell, 204 N.C. 675, 169 S.E. 423 (1933); Allen v. American Cotton Mills, Inc., 206 N.C. 704, 175 S.E. 98 (1934).

Where a corporate employer with less than the minimum number of employees procures a policy of compensation insurance, such employer is presumed to have accepted the provisions of the act, and such policy covers its executive officers notwithstanding the premium on the policy is based on the compensation of a single nonexecutive employee and the parties intended to cover him only, unless notice of nonacceptance by the executive officers is duly filed with the Industrial Commission. Laughridge v. South Mt. Pulpwood Co., 266 N.C. 769, 147 S.E.2d 213 (1966).

Ordinarily, an employer with less than five employees is exempt from the act. However, when such employer at his election voluntarily purchases workers' compensation insurance, he accepts all provisions of the act. In such case, the policy he purchases both creates and protects his compensation liability; and thereafter such employer and his employees are bound by the provisions of the act unless, prior to any accident resulting in injury or death, notice to the contrary is given. Crawford v. Pressley, 6 N.C. App. 641, 171 S.E.2d 197 (1969).

VI. PRISONERS.

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Suspension of Workers' Compensation Benefits During Incarceration. - Imprisonment of a person already receiving worker's compensation disability payments cuts off the employer's duty to make payments during the period of confinement. Parker v. Union Camp Corp., 107 N.C. App. 505, 422 S.E.2d 585 (1992).

Action for Wrongful Death. - Where decedent was a prisoner who suffered an accidental death arising out of and in the course of his assigned employment, plaintiff was entitled to workers' compensation benefits under subsection (c). Blackmon v. N.C. Dept. Of Correction, 343 N.C. 259, 470 S.E.2d 8 (1996).

Action for Wrongful Death Under Tort Claims Act. - Subsection (c) of this section was held not to be a bar in an action for wrongful death of a prisoner brought under the Tort Claims Act. Ivey v. North Carolina Prison Dep't, 252 N.C. 615, 114 S.E.2d 812 (1960).

The second 1957 amendment to this section, which made former G.S. 97-10 applicable to certain prisoners, did not deny to prisoners on assigned tasks rights conferred by the Tort Claims Act. Ivey v. North Carolina Prison Dep't, 252 N.C. 615, 114 S.E.2d 812 (1960). See also note to G.S. 143-291.

Where a prisoner who suffered accidental death arising out of and in the course of the employment to which he had been assigned, his dependents or next of kin were entitled to specific benefits under the Act; therefore, inmate's mother could not maintain a wrongful death action against defendants under the Tort Claims Act. Blackmon v. North Carolina Dep't of Cors., 118 N.C. App. 666, 457 S.E.2d 306 (1995), aff'd, 343 N.C. 259, 470 S.E.2d 8 (1996).

Where the plaintiff was permanently injured while working on a silage harvesting machine operated by the Department of Correction (now Division of Adult Correction of the Department of Public Safety), and he filed a claim with the Industrial Commission under the Tort Claims Act, his claim was properly dismissed on the grounds that workers' compensation was plaintiff's exclusive remedy. Richardson v. North Carolina Dep't of Correction, 118 N.C. App. 704, 457 S.E.2d 325 (1995), cert. granted, 341 N.C. 652, 461 S.E.2d 772 (1995), aff'd, 345 N.C. 128, 478 S.E.2d 501 (1996).

Where deceased was a prisoner who suffered "accidental death arising out of and in the course of the employment to which he had been assigned," his dependents or next of kin were statutorily "entitled" to specific benefits under the exclusive remedy provisions of G.S. 97-10.1, and could not maintain a wrongful death action against defendants under the Tort Claims Act. Blackmon v. North Carolina Dep't of Cors., 118 N.C. App. 666, 457 S.E.2d 306 (1995), aff'd, 343 N.C. 259, 470 S.E.2d 8 (1996).

Working prisoners are excluded from suing in tort for work-related injuries. Richardson v. North Carolina Dep't of Correction, 345 N.C. 128, 478 S.E.2d 501 (1996).

Workers' Compensation Act Sole Remedy. - A prisoner's exclusive remedy for "accidental injury ... arising out of and in the course of the employment to which he had been assigned," whether he is incarcerated or released, as with other employees, arises under the provisions of the Workers' Compensation Act and is the plaintiff's sole remedy. Richardson v. North Carolina Dep't of Correction, 118 N.C. App. 704, 457 S.E.2d 325 (1995), cert. granted, 341 N.C. 652, 461 S.E.2d 772 (1995), aff'd, 345 N.C. 128, 478 S.E.2d 501 (1996).

The monetary benefit afforded to plaintiff by subsection (c) entitled her to compensation and G.S. 97-10.1 applied to bar plaintiff's wrongful death action under the Tort Claims Act. Blackmon v. N.C. Dept. Of Correction, 343 N.C. 259, 470 S.E.2d 8 (1996).

Workers' compensation is the exclusive remedy for prisoners injured while working on prison jobs. Richardson v. North Carolina Dep't of Correction, 345 N.C. 128, 478 S.E.2d 501 (1996).

When an inmate is injured while working at his prison job, his exclusive remedy for any injury is a workers' compensation claim, but he must wait until release for a determination of entitlement to such compensation. Vereen v. N.C. Dep't of Corr., 168 N.C. App. 588, 608 S.E.2d 412 (2005).

Work Release Injury. - Workers' compensation claim by prison inmate who was injured while working for a private employer on work release was not barred by statute. Harris v. Thompson Contrs., Inc., 148 N.C. App. 472, 558 S.E.2d 894 (2002), aff'd, 356 N.C. 664, 576 S.E.2d 323 (2003).

Burial Expenses. - It was assumed, for the purpose of the case, that this section permits the establishment of a claim for the burial expenses of a prisoner whose death occurred while a prisoner. Lawson v. North Carolina State Hwy. & Pub. Works Comm'n, 248 N.C. 276, 103 S.E.2d 366 (1958).

The payment of burial expenses was not payment of "compensation" under the Workers' Compensation Act so as to make the remedy of the personal representative of such a prisoner under subsection (c) of this section exclusive by virtue of former G.S. 97-10. Ivey v. North Carolina Prison Dep't, 252 N.C. 615, 114 S.E.2d 812 (1960).

§§ 97-14 through 97-16: Repealed by Session Laws 1973, c. 1291, ss. 7-9.

I. IN GENERAL.

Application of 1973 Amendment. - The 1973 amendment to this section, which eliminated the 10-week limitation for the recovery of medical expenses for an employee's treatments which are necessary "to effect a cure or give relief," will not be applied retroactively to a case in which the claimant arose out of an accident occurring prior to the effective date of the amendment. Peeler v. State Hwy. Comm'n, 302 N.C. 183, 273 S.E.2d 705 (1981).

Effect of 1991 amendment. - Although the North Carolina Industrial Commission had previously been required to find that a plaintiff's chosen physician was reasonably required to effect a cure or give relief in order for the care to be compensable, the 1991 amendment to G.S. 97-25 deleted the language supporting such a requirement; a finding that medical care by a plaintiff's chosen physician was reasonably required to effect a cure or give relief was not necessarily required in cases post-dating the 1991 amendment. Craven v. VF Corp., 167 N.C. App. 612, 606 S.E.2d 160 (2004), cert. denied, 359 N.C. 320, 611 S.E.2d 172 (2005).

The legislature intended (1) that medical compensation, including hospital services provided by the employer, ordered by the Industrial Commission, provided pursuant to emergencies, or chosen by the employee, subject to the approval of the Commission, be limited by the terms and conditions contained in this section; (2) that such medical compensation be reasonably required to effect a cure or give relief or tend to lessen the period of disability; and (3) that the employer not be charged more than his employee would have been had the employee paid for the services. Charlotte-Mecklenburg Hosp. Auth. v. North Carolina Indus. Comm'n, 336 N.C. 200, 443 S.E.2d 716 (1994).

The legislature intended that the Industrial Commission's authority under this section be limited to review and approval of hospital charges to ensure, first, that the employer is charged only for those reasonably required services, and, second, that the employer is not charged more for such services than the prevailing charge for the same or similar hospital service in the same community. Charlotte-Mecklenburg Hosp. Auth. v. North Carolina Indus. Comm'n, 336 N.C. 200, 443 S.E.2d 716 (1994).

Implicit in the authority accorded the Commission to order additional compensation under this section and further medical treatment is the requirement that the supplemental compensation and future treatment be directly related to the original compensable injury. Peeler v. Piedmont Elastic, Inc., 132 N.C. App. 713, 514 S.E.2d 108 (1999).

Findings Required. - Where the order of the Commission lacked any finding as to the reasonableness of the time frame within which plaintiff requested approval for his medical treatment, the case was remanded. Larramore v. Richardson Sports, Ltd., 141 N.C. App. 250, 540 S.E.2d 768 (2000), aff'd, 353 N.C. 520, 546 S.E.2d 87 (2001).

Presumption. - North Carolina Industrial Commission erred by failing to apply to plaintiff's request for additional medical treatment and compensation for his complaints of anxiety and depression the presumption that additional medical treatment was directly related to the compensable injury once plaintiff met the initial burden of demonstrating that the injury suffered was causally related to the work-related accident; the Commission instead kept the burden on plaintiff to demonstrate causation despite defendant's prior admission of compensability, and doing so was a misapplication of the law. Wilkes v. City of Greenville, 243 N.C. App. 491, 777 S.E.2d 282 (2015).

Continually placing the burden on an employee to prove that his or her symptoms are causally related to his or her admittedly compensable injury before he or she can receive further medical treatment ignores the prior award; accordingly, an admission of compensability approved under the Workers' Compensation Act entitles an employee to a presumption that additional medical treatment is causally related to his or her compensable injury. Wilkes v. City of Greenville, 369 N.C. 730, 799 S.E.2d 838 (2017).

Court of appeals properly vacated the North Carolina Industrial Commission's finding that an employee failed to establish that his anxiety and depression were a result of his work-related accident because the employee was entitled to a presumption that additional medical treatment was related to his compensable conditions; the Commission did not apply any presumption, and instead placed the initial burden on the employee to prove causation for any medical compensation he sought. Wilkes v. City of Greenville, 369 N.C. 730, 799 S.E.2d 838 (2017).

Parents' Travel Expenses. - Workers' compensation claimant was entitled to reimbursement for the travel expenses of the claimant's parents as the claimant's mother held the claimant down or washed the claimant's wounds, changed the claimant's dressings, and helped the claimant stretch and work the claimant's muscles in the hospital and after the claimant was released, and the psychological benefits to the claimant from having the claimant's parents' support while the claimant was in the hospital with devastating burns constituted relief under G.S. 97-25. Price v. Piggy Palace, 205 N.C. App. 381, 696 S.E.2d 716 (2010).

No "Change of Condition" Requirement. - Nothing in the language of this section implies that the "change of condition" requirement of G.S. 97-47 applies to any request by an employee for the payment of his medical expenses by his employer. Hyler v. GTE Prods. Co., 333 N.C. 258, 425 S.E.2d 698 (1993).

The complete absence of an express or implied reference in this section to any "change of condition" requirement, in addition to this section's clear language permitting the Industrial Commission to review medical treatment an employee is receiving and order further treatment at any time if an employee requests such a review, indicated that the legislature did not intend for an injured employee to make any showing of a change in condition before his employer would be required to pay for further medical services or treatment needed as a result of his compensable injury. Hyler v. GTE Prods. Co., 333 N.C. 258, 425 S.E.2d 698 (1993).

The provisions of this section are in pari materia and must be construed together as a whole. Schofield v. Great Atl. & Pac. Tea Co., 299 N.C. 582, 264 S.E.2d 56 (1980).

Section 97-10.2 Construed In Pari Materia. - Section 97-10.2 and this section relate to the same subject matter and must be construed in pari materia. Roberts v. ABR Assocs., 101 N.C. App. 135, 398 S.E.2d 917 (1990).

Construction with § 97-47. - Because "compensation" does not include the payment of medical expenses, the provisions of § 97-47 do not affect the Commission's grant or denial of an employee's request for payments of those expenses. The Commission's authority for requiring an employer to pay the medical expenses of an injured employee is established by the terms of this section. Hyler v. GTE Prods. Co., 333 N.C. 258, 425 S.E.2d 698 (1993).

Where employee's refusal to cooperate with employer's physician resulted in litigation, the plaintiff's claim for further compensation, filed 2 years after her last compensation check, was not time-barred because her claim was not a change-of-condition case under G.S. 97-47, but a case still pending under this section, and defendants' filing of a Form 28B had no effect on employee's right to further compensation. Scurlock v. Durham County Gen. Hosp., 136 N.C. App. 144, 523 S.E.2d 439 (1999).

Construction with G.S. 97-2(19). - Inherent in a North Carolina Industrial Commission's award granted pursuant to G.S. 97-25 (1999) is that the compensation will incorporate the parameters of G.S. 97-2(19). Johnson v. S. Tire Sales & Serv., 152 N.C. App. 323, 567 S.E.2d 773 (2002), cert. denied, 356 N.C. 437, 572 S.E.2d 784 (2002).

Jurisdiction of Industrial Commission. - An employee brought action against the insurance carrier and its agent, alleging that after his injury the agent, on behalf of the insurer, induced him to dispense with the services of his physician and to consult physicians selected by insurer, and that the insurer promised to provide hospitalization and surgical service recommended by insurer's physicians, but failed to do so to plaintiff 's permanent injury. It was held that the insurer's obligation to furnish medical attention necessary to plaintiff 's complete recovery was founded on this section, and that the Industrial Commission had exclusive jurisdiction of plaintiff 's claim. Hedgepeth v. Lumbermen's Mut. Cas. Co., 209 N.C. 45, 182 S.E. 704 (1935).

Appeal of Award Does Not Suspend Jurisdiction of Commission. - An appeal of an award of the Industrial Commission does not suspend that agency's authority to accept notification of an employee's decision to select his own doctor; neither does an appeal deprive the Commission of its jurisdiction to accept the submission of a claim. It may well be that the determination of the particular claim will be delayed until the outcome of the appeal. Nevertheless, the Commission has jurisdiction to receive the claim and is, in fact, the only agency vested with that jurisdiction. Schofield v. Great Atl. & Pac. Tea Co., 299 N.C. 582, 264 S.E.2d 56 (1980).

Employer's Motion to Designate Treating Physician. - The fact that this section expressly grants employees the power to request a change in their treating physician, but does not make a similar grant to employers, does not mean that employers cannot make motions to designate a treating physician. Matthews v. Charlotte-Mecklenburg Hosp. Auth., 132 N.C. App. 11, 510 S.E.2d 388 (1999).

Medical, etc., expenses are not included in the maximum amount recoverable for one injury. See Morris v. Laughlin Chevrolet Co., 217 N.C. 428, 8 S.E.2d 484 (1940).

Payment of Medical Expenses Does Not Constitute Admission or Waiver by Employer. - The Workers' Compensation Act, by this section, requires or permits an employer to pay bills for medical and other treatment of an employee, and the payment of such bills, approved by the Commission, even without formal denial of liability, cannot have the effect of an admission of liability by the employer or constitute a waiver of the requirement of filing a timely claim by the employee as provided in G.S. 97-24. Such facts are insufficient to invoke the doctrine of estoppel. Biddix v. Rex Mills, Inc., 237 N.C. 660, 75 S.E.2d 777 (1953).

Payment of Full Wages Does Not Determine Liability for Treatment. - The act of an employer in paying an injured employee's wages in full from the date of the injury should not be determinative of the employee's disability and thereby relieve the employer or insurance carrier from liability for hospital and medical care designed to improve his capacity to earn wages. Ashley v. Rent-A-Car Co., 271 N.C. 76, 155 S.E.2d 755 (1967).

The rule that denies compensation to an injured employee who has lost no wages is necessarily applied in some cases growing out of G.S. 97-30 in order to determine the amount of compensation due, but it is not applicable to medical, surgical, hospital, and nursing services under this section, as medical and hospital expenses are not a part of, and are not included in, determining recoverable compensation. Ashley v. Rent-A-Car Co., 271 N.C. 76, 155 S.E.2d 755 (1967).

Employer's Failure to Rebut Evidence of Causal Connection. - Employee was entitled to additional medical compensation under G.S. 97-25 where the employer offered no evidence to rebut the employee's evidence showing that the herniated disc was directly related to the compensable injury she suffered when she slipped and fell while working as a flight attendant for the employer. Perez v. Am. Airlines/AMR Corp., 174 N.C. App. 128, 620 S.E.2d 288 (2005).

Relaxation of Rule as to Fees for Practical Nursing. - Industrial Commission was not entitled to relax its rule that fees for practical nursing would not be allowed unless written authority was obtained from Commission in advance, so as to award mother of injured employee an amount for practical nursing services rendered to injured employee, where record showed that Commission never gave its written or oral permission for rendition of services. Hatchett v. Hitchcock Corp., 240 N.C. 591, 83 S.E.2d 539 (1954).

Cost of Treatment of Veteran. - The Administrator of Veterans Affairs (now Department of Military and Veterans Affairs) may recover from the employer and its insurance carrier the cost of treatment in a veterans hospital for compensable injuries received by an indigent ex-serviceman in the course of his employment. Marshall v. Robert's Poultry Ranch & Egg Sales, 268 N.C. 223, 150 S.E.2d 423 (1966).

Appeal from Approval of Medical Bills. - When the Commission approves claimant's medical, etc., bills, defendant then has a right on appeal to challenge the action of the Commission in respect to the bills approved by it, in whole or in part, if it deems it advisable to do so. Bass v. Mecklenburg County, 258 N.C. 226, 128 S.E.2d 570 (1962).

Controlling Effect of § 97-59 in Cases Involving Occupational Disease. - Section 97-59, which is a more recent and specific statute dealing with awards of medical benefits in cases involving occupational disease, controls over this section in such cases. Smith v. American & Efird Mills, 305 N.C. 507, 290 S.E.2d 634 (1982).

Where insurance company agreed to pay all necessary medical expenses incurred by plaintiff through May 31, 1983, while plaintiff waived any and all rights to reopen a claim for further compensation, and insurer was notified on May 16, 1983, that plaintiff urgently needed medical attention relating to his industrial injury, but took no action and did not authorize the urgently needed hospitalization, defendant breached its duty of good faith and fair dealing by acting to delay the treatment until after May 31, 1983, and the case would be remanded to determine how soon after notification the insurance company could have reasonably granted the authorization and to determine what portion of the costs would have then occurred prior to May 31, 1983, for which defendant was liable. Gallimore v. Daniels Constr. Co., 78 N.C. App. 747, 338 S.E.2d 317 (1986).

Refusal of Insurers to Provide Chiropractic Treatment as Workers' Compensation Coverage. - Plaintiff chiropractors alleging that defendant insurance companies had interfered with their contractual rights by refusing to honor employers' choices of chiropractors as providers of health care treatment to employees under the Workers' Compensation Act, that defendants had misrepresented to employer insureds that their workers' compensation policies did not provide coverage for chiropractic treatment, that said misrepresentations were unfair and deceptive trade practices in violation of G.S. 75-1.1, and that defendants had conspired among themselves and with members of the medical profession to deprive plaintiffs of business opportunities by refusing to pay for chiropractic services provided in compliance with the act, an illegal restraint of trade in violation of G.S. 75-1 and 15 U.S.C. § 1, could not maintain their action in superior court without first seeking relief from the Industrial Commission. North Carolina Chiropractic Ass'n v. Aetna Cas. & Sur. Co., 89 N.C. App. 1, 365 S.E.2d 312 (1988), remanding case to the trial court for entry of an order staying plaintiffs' action pending a determination of the underlying workers' compensation issues by the Commission.

Chronic Fatigue Syndrome. - Evidence that an employee of a waste company whose job was to collect and dispose of raw sewage developed chronic fatigue syndrome and other ailments after being accidentally sprayed with raw sewage and that the employee's illnesses were most probably the result of the accident supported a ruling of the North Carolina Industrial Commission awarding the employee permanent workers' compensation disability benefits. Norton v. Waste Mgmt., 146 N.C. App. 409, 552 S.E.2d 702 (2001).

Reimbursement Under § 97-10.2 (f)(1)(c). - The party claiming a right to reimbursement under G.S. 97-10.2 (f)(1)(c), i.e., the employer or its insurance carrier, must show, pursuant to this section, (1) that the treatment provided was in the form of medical treatment, surgical treatment, hospital treatment, nursing services, medicines, sick travel, rehabilitation services, or other treatment including medical and surgical supplies, and (2) that the treatment provided was reasonably required for at least one of three purposes, namely, to effect a cure, give relief, or lessen the period of the plaintiff's disability. Roberts v. ABR Assocs., 101 N.C. App. 135, 398 S.E.2d 917 (1990).

Accounting Fees. - North Carolina Industrial Commission did not err in denying reimbursement of an employee's accounting fees because there was no evidence presented that the accounting fees were part of any life care plan nor was there testimony or evidence from a medical or rehabilitative specialist stating that the expense was medically necessary because of the employee's specific injuries. Silva v. Lowes Home Improvement, 239 N.C. App. 175, 768 S.E.2d 180 (2015).

Attorney's Fees. - Even though the Industrial Commission found the functional capacity evaluation (FCE) was not medical compensation, the Commission properly concluded that defendants'; motion to compel a FCE was not unreasonable as defendants reasonably acted within their statutory rights after treatments and claims of lack of pain to determine the status of the claimant's compensable shoulder injury; thus, the Commission properly concluded an award of attorney's fees in favor of the claimant was not allowed. Richardson v. Goodyear Tire & Rubber Co., - N.C. App. - , - S.E.2d - (June 1, 2021).

Reimbursement for Rehabilitation Services. - Insurance carrier did not need the Commission's approval for the charges connected with rehabilitation services in order to obtain reimbursement for those expenses because G.S. 97-90(a) does not require approval of the Commission for rehabilitation services. Roberts v. ABR Assocs., 101 N.C. App. 135, 398 S.E.2d 917 (1990).

Since G.S. 97-25 required the State industrial commission to find as fact that services were rehabilitative in nature and were reasonably required to effect a cure or give relief in order to find that a workers' compensation carrier was entitled to a lien against payments made for rehabilitative services, those services were not a benefit as a matter of law to an injured motorist who received worker's compensation benefits from an auto accident that occurred during the course of employment; since a specific determination was required as to whether the services conferred a benefit to the motorist, and since an underinsured motorist carrier did not provide any proof of such a benefit, a credit to the carrier for payments made through workers' compensation to a rehabilitative center were properly excluded from the calculation of how much credit the carrier was entitled to against the underinsured motorist benefits that the motorist was entitled to. Walker v. Penn Nat'l Sec. Ins. Co., 168 N.C. App. 555, 608 S.E.2d 107 (2005).

Employee Not Required to Undergo Rehabilitation When Not Beneficial. - Competent evidence in the form of testimony by doctors and psychologists supported the Commission's decision that an employee who suffered psychological disorders as a result of encephalitis from surgery to correct a back injury from work did not have to undergo rehabilitation, because he would not be able to become employable again in spite of the rehabilitation. Shoemaker v. Creative Builders, 150 N.C. App. 523, 563 S.E.2d 622 (2002).

Return to College for Vocational Rehabilitation. - The Commission did not err in approving of employee's return to college as a proper form of vocational rehabilitation under G.S. 97-25 where the evidence showed that further schooling was the employee's only hope of securing wages comparable to the employee's pre-injury flight attendant wages. Foster v. U.S. Airways, Inc., 149 N.C. App. 913, 563 S.E.2d 235 (2002), cert. denied, 356 N.C. 299, 570 S.E.2d 505 (2002).

Education Expenses. - North Carolina Industrial Commission did not abuse its discretion in denying reimbursement of an employee's educational expenses because there were no findings or evidence in the record showing that any medical or rehabilitative professional recommended the employee's educational pursuits as part of a rehabilitation plan or that those educational pursuits were reasonably necessary to effect a cure, give relief, or will lessen a claimant's period of disability. Silva v. Lowes Home Improvement, 239 N.C. App. 175, 768 S.E.2d 180 (2015).

Burden of Proof. - The Industrial Commission committed legal error by placing the burden on plaintiff/employee to prove causation of her headaches where she met this burden in prior proceeding. Parsons v. Pantry, Inc., 126 N.C. App. 540, 485 S.E.2d 867 (1997).

The Commission erroneously placed on the plaintiff the burden of proving the medical treatment he sought was causally related to a past compensable injury, and the case was remanded for a new determination of causation. Reinninger v. Prestige Fabricators, Inc., 136 N.C. App. 255, 523 S.E.2d 720 (1999).

The Commission's failure to make sufficient findings to support its denial of a seamstress's claim, based her refusal to see an authorized physician under this section or because she was not due any compensation for the first seven days of her injury under G.S. 97-28, resulted in remand. Kanipe v. Lane Upholstery, 141 N.C. App. 620, 540 S.E.2d 785 (2000).

Exclusion of Evidence. - Exclusion of written response from a treating physician, which was in response to a facsimile sent by defense counsel that detailed three questions regarding causation of an employee's alleged work-related injury and subsequent disability, was proper since the communication was ex parte and consisted of interrogatories to a non-party, which were not authorized by any caselaw precedent nor any rule of evidence. Mayfield v. Parker Hannifin, 174 N.C. App. 386, 621 S.E.2d 243 (2005).

The Industrial Commission was required to state reasons for its denial of authorization of the medical treatment related to plaintiff's stomach reduction procedure, sought pursuant to this section. Clark v. Sanger Clinic, P.A., 142 N.C. App. 350, 542 S.E.2d 668, cert. denied, 353 N.C. 450, 548 S.E.2d 524 (2001).

Further Injury While En Route to Doctor's Appointment. - Where employee sustained an injury to his back as a direct result of a specific traumatic incident arising out of and in the course of employment, a subsequent car accident while en route to a doctor's appointment was not an intervening cause that precluded compensation for aggravation of the employee's work-related injury since the accident was not the fault of the employee. Cannon v. Goodyear Tire & Rubber Co., 171 N.C. App. 254, 614 S.E.2d 440 (2005).

North Carolina Industrial Commission found that no medical evidence existed that showed that the employee either required any additional medical treatment after the date of maximum medical improvement (MMI) or that the employee suffered any permanent injury; since the evidence indicated that the employee had reached MMI, there could be no medical treatment that would lessen the period of the employee's disability, effect a cure or otherwise give the employee relief. Therefore, the Commission correctly concluded that the employee did not need and was not entitled to any additional medical treatment under G.S. 97-25 and there was nothing in the Commission's conclusion that would foreclose the employee from requesting additional treatment pursuant to G.S. 97-25.1. Fonville v. GMC, 200 N.C. App. 267, 683 S.E.2d 445 (2009).

Evidence Insufficient to Support Award of Medical Benefits. - Because there was no evidence a claimant had leg injuries or pain due to a work-related accident, and given a doctor's statement that any such pain was not causally related to the accident, the North Carolina Industrial Commission's finding that the claimant sustained injuries to her legs due to the accident, and thus was entitled to temporary total disability benefits, including past and future medical expenses, was without evidentiary support. Williams v. Law Cos. Group, Inc., 188 N.C. App. 235, 654 S.E.2d 725 (2008), rev'd, remanded, 362 N.C. 506, 666 S.E.2d 750 (2008).

Evidence Sufficient to Support Award of Medical Benefits. - North Carolina Industrial Commission properly concluded that, pursuant to G.S. 97-25, a claimant was entitled to additional medical treatment reasonably related to his compensable hand injury as the evidence showed that the claimant's hand was x-rayed immediately after the accident and revealed fractures and that the claimant's hand had not been "fixed" because the insurer would not pay for an orthopedic surgeon to evaluate the claimant's hand. Heatherly v. Hollingsworth Co., 211 N.C. App. 282, 712 S.E.2d 345 (2011).

Applied in Godwin v. Swift & Co., 270 N.C. 690, 155 S.E.2d 157 (1967); Schofield v. Great Atl. & Pac. Tea Co., 32 N.C. App. 508, 232 S.E.2d 874 (1977); Perkins v. Broughton Hosp., 71 N.C. App. 275, 321 S.E.2d 495 (1984); Haponski v. Constructor's, Inc., 71 N.C. App. 786, 323 S.E.2d 46 (1984); Braswell v. Pitt County Mem. Hosp., 106 N.C. App. 1, 415 S.E.2d 86 (1992); Maynor v. Sayles Biltmore Bleacheries, 116 N.C. App. 485, 448 S.E.2d 382 (1994); Brown v. Family Dollar Distribution Ctr., 129 N.C. App. 361, 499 S.E.2d 197 (1998); Ruggery v. North Carolina Dep't of Corrs., 135 N.C. App. 270, 520 S.E.2d 77 (1999); Arnold v. Wal-Mart Stores, 154 N.C. App. 482, 571 S.E.2d 888 (2002); Johnson v. Southern Tire Sales & Serv., 233 N.C. App. 659, 758 S.E.2d 19 (2014).

Cited in Daughtry v. Metric Constr. Co., 115 N.C. App. 354, 446 S.E.2d 590, cert. denied, 338 N.C. 515, 452 S.E.2d 808 (1994); Worley v. Pipes, 229 N.C. 465, 50 S.E.2d 504 (1948); Matros v. Owen, 229 N.C. 472, 50 S.E.2d 509 (1948); Morgan v. Thomasville Furn. Indus., Inc., 2 N.C. App. 126, 162 S.E.2d 619 (1968); Gantt v. Hickory Motor Sales, Inc., 8 N.C. App. 559, 174 S.E.2d 624 (1970); Shuler v. Talon Div. of Textron, 30 N.C. App. 570, 227 S.E.2d 627 (1976); Robinson v. J.P. Stevens & Co., 57 N.C. App. 619, 292 S.E.2d 144 (1982); McDonald v. Brunswick Elec. Membership Corp., 77 N.C. App. 753, 336 S.E.2d 407 (1985); Sawyer v. Ferebee & Son, 78 N.C. App. 212, 336 S.E.2d 643 (1985); Derebery v. Pitt County Fire Marshall, 318 N.C. 192, 347 S.E.2d 814 (1986); Turner v. CECO Corp., 98 N.C. App. 366, 390 S.E.2d 685 (1990); Bowden v. Boling Co., 110 N.C. App. 226, 429 S.E.2d 394 (1993); Setzer v. Boise Cascade Corp., 123 N.C. App. 441, 473 S.E.2d 431 (1996); Swain v. C & N Evans Trucking Co., 126 N.C. App. 332, 484 S.E.2d 845 (1997); Cummings v. Burroughs Wellcome Co., 130 N.C. App. 88, 502 S.E.2d 26 (1998), cert. denied, 349 N.C. 355, 517 S.E.2d 890 (1998); Davis v. Weyerhaeuser Co., 132 N.C. App. 771, 514 S.E.2d 91 (1999); Pomeroy v. Tanner Masonry, 151 N.C. App. 171, 565 S.E.2d 209 (2002); Skillin v. Magna Corp., 152 N.C. App. 41, 566 S.E.2d 717 (2002); Gordon v. City of Durham, 153 N.C. App. 782, 571 S.E.2d 48 (2002); Cialino v. Wal-Mart Stores, 156 N.C. App. 463, 577 S.E.2d 345 (2003); Taylor v. Bridgestone/Firestone, Inc., 157 N.C. App. 453, 579 S.E.2d 413 (2003); Dial v. Cozy Corner Rest., Inc., 161 N.C. App. 694, 589 S.E.2d 146 (2003); Graham v. Masonry Reinforcing Corp. of Am., 188 N.C. App. 755, 656 S.E.2d 676 (2008); Cross v. Falk Integrated Techs., Inc., 190 N.C. App. 274, 661 S.E.2d 249 (2008); Alphin v. Tart L.P. Gas Co., 192 N.C. App. 576, 666 S.E.2d 160 (2008), review denied, 363 N.C. 257, 676 S.E.2d 899 (2009); McLaughlin v. Staffing Solutions, 206 N.C. App. 137, 696 S.E.2d 839 (2010); Javorsky v. New Hanover Reg'l Med. Ctr., 208 N.C. App. 644, 703 S.E.2d 761 (2010); McLeod v. Wal-Mart Stores, Inc., 208 N.C. App. 555, 703 S.E.2d 471 (2010); Shackleton v. Southern Flooring & Acoustical Co., 211 N.C. App. 233, 712 S.E.2d 289 (2011); Mauldin v. A.C. Corp., 217 N.C. App. 36, 719 S.E.2d 110 (2011), rev'd in part 366 N.C. 140, 727 S.E.2d 874, 2012 N.C. LEXIS 415 (N.C. 2012); Adcox v. Clarkson Bros. Constr. Co., 236 N.C. App. 248, 763 S.E.2d 792 (2014), superseded 2015 N.C. App. LEXIS 439 (N.C. Ct. App. 2015); Adcox v. Clarkson Bros. Constr. Co., 241 N.C. App. 178, 773 S.E.2d 511 (2015), review denied 780 S.E.2d 557, 2015 N.C. LEXIS 1209 (2015); Chandler v. Atl. Scrap & Processing, 244 N.C. App. 155, 780 S.E.2d 575 (2015); Reed v. Carolina Holdings, Wolseley Mgmt., 251 N.C. App. 782, 796 S.E.2d 102 (2017), appeal dismissed, 2019 N.C. App. LEXIS 332 (2019); Anders v. Universal Leaf North Am., 253 N.C. App. 241, 800 S.E.2d 99 (2017), superseded, 803 S.E.2d 463, 2017 N.C. App. LEXIS 642 (N.C. Ct. App. 2017).