              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-1208

                                 Filed: 15 May 2018

North Carolina Industrial Commission, I.C. No. 15-056517

LARRY BROOKS, Employee, Plaintiff

             v.

CITY OF WINSTON-SALEM, Employer, SELF-INSURED, Defendant.


       Appeal by plaintiff from opinion and award entered 19 July 2017 by the North

Carolina Industrial Commission. Heard in the Court of Appeals 5 April 2018.


       Oxner + Permar, PLLC, by Kathy Stewart, for plaintiff-appellant.

       Spilman Thomas & Battle, PLLC, by Kevin B. Cartledge, for defendant-
       appellee.


       DAVIS, Judge.


       In this appeal, we revisit the issue of when an employee’s injury is deemed to

have arisen out of his employment under the North Carolina Workers’ Compensation

Act.   Larry Brooks appeals from an opinion and award of the North Carolina

Industrial Commission denying his claim for workers’ compensation benefits.

Because we conclude that Brooks’ injury occurred solely as a result of his own

idiopathic condition rather than due to conduct traceable to his employer, we affirm.

                       Factual and Procedural Background
                         BROOKS V. CITY OF WINSTON-SALEM

                                   Opinion of the Court



       In October 2015, Brooks was employed by the City of Winston-Salem (the

“City”) as a Senior Crew Coordinator in the Utilities Department. He supervised a

team of four employees who were performing water and sewer line repairs throughout

Winston-Salem. The City allowed Brooks and the other employees on his team to

take two 15-minute breaks and one 30-minute lunch break each day.               As the

supervisor of the group, Brooks was “responsible for deciding whether and when

breaks would be taken, and [was] responsible for the crew during breaks.”

       On 22 October 2015, Brooks was with his crew working at a jobsite. At some

point during the day, Brooks and the other employees decided to take a lunch break

at a nearby Sheetz gas station. Brooks ate his lunch in the City’s truck while the

other employees sat at a table outside the gas station. After he finished eating his

meal, Brooks briefly joined the group at the table and then entered the gas station

for the purpose of purchasing cigarettes.

       Inside the gas station, Brooks decided to buy an e-cigarette, a type of cigarette

he had never previously smoked. He returned to the City’s truck after making the

purchase and began smoking the e-cigarette while sitting inside the vehicle. At all

relevant times, the City maintained a “[t]obacco [f]ree” policy, which provided that

“[s]moking cigarettes or e-cigarettes inside City vehicles or on City property [wa]s

prohibited . . . .”




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                         BROOKS V. CITY OF WINSTON-SALEM

                                  Opinion of the Court



      As Brooks “ignited and inhaled the e-cigarette,” he began coughing

“uncontrollably.” In order to get some fresh air, he opened the vehicle’s door and

stepped out of the truck while continuing to cough. Brooks then “passed out and fell

to the ground.” He landed on the cement curb, causing injury to his right hip, back,

and head.

      Brooks was diagnosed by Dr. Dahari Brooks, a board-certified orthopedist,

with “L3, L4 transverse process fractures.” Due to these injuries, he was assigned

light duty work restrictions, which prevented him from returning to work in his prior

position.

      The City filed a Form 19 (Employer’s Report of Employee’s Injury) on 29

October 2015 and a Form 61 (Denial of Workers’ Compensation Claim) on 19

November 2015. On 28 December 2015, Brooks filed a Form 18 (Notice of Accident),

alleging that “[w]hen [he] stepped out of his truck he passed out (from e-cig) causing

him to fall to the ground injuring his back.”

      On 13 July 2016, a hearing was held before Deputy Commissioner Michael T.

Silver. Brooks and Julie Carter, a risk manager working for the City, each provided

testimony.   Depositions were later taken of Dr. Brooks and Phillip Kelley, a

physician’s assistant who had treated Brooks following his injury.

      On 21 November 2016, the deputy commissioner issued an opinion and award

determining that “[Brooks’] injuries were not the result of an injury by accident



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                         BROOKS V. CITY OF WINSTON-SALEM

                                   Opinion of the Court



arising out of and in the course of employment . . . .” Brooks appealed to the Full

Commission.

      On 19 July 2017, the Full Commission issued an opinion and award affirming

the deputy commissioner’s decision and denying Brooks’ claim for benefits. On 31

July 2017, Brooks filed a timely notice of appeal.

                                        Analysis

      Appellate review of an opinion and award of the Industrial Commission is

typically “limited to consideration of whether competent evidence supports the

Commission’s findings of fact and whether the findings support the Commission’s

conclusions of law.” Philbeck v. Univ. of Mich., 235 N.C. App. 124, 127, 761 S.E.2d

668, 671 (2014) (citation and quotation marks omitted). “The findings of fact made

by the Commission are conclusive on appeal if supported by competent evidence even

if there is also evidence that would support a contrary finding. The Commission’s

conclusions of law, however, are reviewed de novo.” Morgan v. Morgan Motor Co. of

Albemarle, 231 N.C. App. 377, 380, 752 S.E.2d 677, 680 (2013) (internal citations

omitted), aff’d per curiam, 368 N.C. 69, 772 S.E.2d 238 (2015).

      In its opinion and award in the present case, the Commission made the

following pertinent findings of fact:

                   1. On October 22, 2015, [Brooks] was employed by
              [the City] as a Senior Crew Coordinator in the Utilities
              Department. In that capacity, [Brooks] was a working
              supervisor over a crew of five, including himself, which


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            BROOKS V. CITY OF WINSTON-SALEM

                     Opinion of the Court



performed water and sewer line repairs throughout the
city.

      2. [Brooks’] work day started at 7:30 a.m. and was
scheduled to end at 4:00 p.m., although he ‘‘worked over a
lot.” [Brooks] and his crew were entitled to take two 15-
minute breaks and one 30-minute lunch break each day.
While it is unclear from the record whether these were paid
or unpaid breaks, [Brooks] was, as the supervisor,
responsible for deciding whether and when breaks would
be taken, and responsible for the crew during breaks.

       3. On October 22, 2015, [Brooks] reported to work
at 7:30 a.m., spoke to his supervisor to get his daily
assignment, and then left out at approximately 8:00 a.m.
with his crew in one of [the City]’s trucks to travel to that
day’s job site. Later that day, [Brooks] and his crew
decided to take their lunch break at a Sheetz gas station
which was located in close proximity to where they were
working. [Brooks] ate his lunch in the truck, while his co-
workers sat at a table outside the gas station. [Brooks]
testified that they probably took more than 30 minutes for
lunch, but they had not taken their 15-minute break that
morning. [Brooks] finished eating his meal in the truck,
joined his crew briefly, and then went into the gas station
to purchase cigarettes. [Brooks] purchased an electronic
cigarette (or e-cigarette) which he usually does not smoke.
[Brooks] then walked back to [the City]’s truck, got inside,
and began to smoke the e-cigarette. Smoking cigarettes or
e-cigarettes inside City vehicles or on City property is
prohibited by [the City]’s Tobacco Free Policy. When
[Brooks] ignited and inhaled the e-cigarette, “it just cut off
[his ]wind,” and he began coughing uncontrollably. “Out of
instinct,” he opened the door and stepped out of the truck
to get some air, all the while continuing to cough. After he
had stepped out of the truck and while he was standing on
the ground, coughing uncontrollably, [Brooks] passed out
and fell to the ground. [Brooks] did not fall from the truck
onto the ground.



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           BROOKS V. CITY OF WINSTON-SALEM

                     Opinion of the Court



      4. EMS was called to the scene and [Brooks’] vital
signs were taken. According to EMS records, [Brooks] had
a blood pressure of 194/120 and a blood sugar level of 312,
both of which are extremely elevated readings.

      5. [Brooks] declined EMS transport to the
emergency room and, instead, a co-worker took him to
Novant Health Urgent Care & Occupational Medicine,
where he was seen by Phillip Kelley, P.A. for injury to his
right hip, back and head. [Brooks] informed Mr. Kelley
that he had passed out after smoking an e-cigarette.
[Brooks’] blood pressure remained elevated at 182/112,
which Mr. Kelley testified is “very, very high” and
constitutes “grade three hypertension,” the highest grade
there is. [Brooks] also informed Mr. Kelley that he was a
known diabetic, but that he had been out of his medication
since April. Mr. Kelley advised [Brooks] that he should be
seen at the emergency room for further work-up regarding
his syncope and extremely elevated blood pressure and
blood sugar readings. [Brooks] refused, telling Mr. Kelley
that he thought he had been off his diabetes medication for
too long and that he would be ok once he started taking
them again.     Mr. Kelley renewed [Brooks’] diabetes
medication and discharged him against medical advice
with the following diagnoses: “syncope, unspecified
syncope type; contusion, back, right, initial encounter;
diabetes type 2, uncontrolled; acute post-traumatic
headache, not intractable; shortness of breath; glucosuria;
elevated blood pressure reading without diagnosis of
hypertension.”

      6. On October 22, 2015, [Brooks] completed a City
of Winston-Salem Accident/Incident Report in which he
described the accident as follows: “I developed a cough so
hard I pass (sic) out standing. Free fell backwards onto a
curb hurting backside back and head. More so my back
cause it landed on curb.” In his answers to interrogatories,
[Brooks] described his injury as follows: “While sitting in
the truck smoking an E-cig I started to choke. I got out to
get air but I was coughing so much I passed out. I fell


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            BROOKS V. CITY OF WINSTON-SALEM

                     Opinion of the Court



backwards on the cement curb causing my lower back and
head to strike the ground.”

      7. On December 28, 2015, after [the City] had
denied [Brooks’] claim, [Brooks] filed a Form 18 Notice of
Accident to Employer and Claim of Employee,
Representative, or Dependent in which he described the
accident as follows: “When Employee stepped out of his
truck he passed out (from e-cig) causing him to fall to the
ground injuring his back.”

       8. [Brooks] was diagnosed with L3, L4 transverse
process fractures and came under the care of Dr. Dahari
Brooks, a board-certified orthopedist, who assigned light
duty work restrictions which preclude [Brooks] from
returning to work in the position he was performing on the
date of the injury. As of the date of the hearing before the
Deputy Commissioner, [Brooks] remained out of work but
still employed by [the City].

      9. Extremely elevated blood sugar levels and blood
pressure readings, such as those exhibited by [Brooks] at
the time of his injury, can cause someone to pass out. In
addition, when someone coughs so much that they become
light-headed, they can pass out from a vasovagal response.
Dr. Brooks testified that he thought it was a combination
of these three things, and that “they probably all
contributed to it.”

      10. [Brooks’] fall on October 22, 2015 was an
unexpected and unforeseen occurrence. However, based
upon a preponderance of the evidence in view of the entire
record, the Full Commission finds that [Brooks’] fall on
October 22, 2015 was caused by idiopathic conditions, to
wit: extremely elevated blood pressure and blood sugar
levels and vasovagal response triggered by uncontrolled
coughing, and that no risk attributable to his employment
combined with the idiopathic conditions to cause [Brooks’]
accident. [Brooks] did not fall from a height or hit his head
on a piece of work equipment. There is no evidence that


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                        BROOKS V. CITY OF WINSTON-SALEM

                                 Opinion of the Court



            [Brooks’] working conditions contributed to his fall and
            injury. Moreover, there is nothing in the record to suggest
            that [Brooks] would not have fallen because of his
            idiopathic conditions had he been standing in his back yard
            or leaving a convenience store on the weekend. Therefore,
            while [Brooks’] accident occurred in the course of his
            employment, it did not arise out of his employment.

      Based on these findings of fact, the Commission concluded that “because no

risk or hazard incident to [Brooks’] employment duties combined with his idiopathic

conditions to contribute to his injuries, his accident did not arise out of his

employment and is therefore not compensable.”

      Brooks does not challenge the portions of the Commission’s findings explaining

how the 22 October 2015 accident occurred. Therefore, these findings are binding on

appeal. See Allred v. Exceptional Landscapes, Inc., 227 N.C. App. 229, 232, 743

S.E.2d 48, 51 (2013) (“Unchallenged findings of fact are presumed to be supported by

competent evidence and are binding on appeal.” (citation omitted)).

      Brooks’ primary argument is that the Commission erred as a matter of law by

failing to conclude that his fall arose out of his employment. Under the Workers’

Compensation Act, an injury is compensable if the claimant proves three elements:

“(1) that the injury was caused by an accident; (2) that the injury was sustained in

the course of the employment; and (3) that the injury arose out of the employment.”

Hedges v. Wake Cty. Pub. Sch. Sys., 206 N.C. App. 732, 734, 699 S.E.2d 124, 126




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                         BROOKS V. CITY OF WINSTON-SALEM

                                  Opinion of the Court



(2010) (citation and quotation marks omitted), disc. review denied, 365 N.C. 77, 705

S.E.2d 746 (2011).

      Our Supreme Court has held that “[a]n injury is said to arise 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.” Taylor v. Twin

City Club, 260 N.C. 435, 438, 132 S.E.2d 865, 868 (1963) (citation omitted). “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, we are bound by those findings.” Roberts v. Burlington Indus., Inc., 321 N.C.

350, 354, 364 S.E.2d 417, 420 (1988) (citation and quotation marks omitted).

      “An idiopathic condition is one arising spontaneously from the mental or

physical condition of the particular employee.” Philbeck, 235 N.C. App. at 128, 761

S.E.2d at 672. We have consistently held that “[w]hen the employee’s idiopathic

condition is the sole cause of the injury, the injury does not arise out of the

employment.” Mills v. City of New Bern, 122 N.C. App. 283, 285, 468 S.E.2d 587, 589

(1996) (citation omitted). However, “[t]he injury does arise out of the employment if

the idiopathic condition of the employee combines with risks attributable to the

employment to cause the injury.” Billings v. Gen. Parts, Inc., 187 N.C. App. 580, 586,




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                                  Opinion of the Court



654 S.E.2d 254, 259 (2007) (citation, quotation marks, brackets, and emphasis

omitted), disc. review denied, 362 N.C. 233, 659 S.E.2d 435 (2008).

      Brooks argues that this case is similar to those in which our courts have upheld

an award of workers’ compensation benefits to an employee who suffers an injury

from an idiopathic condition while operating a vehicle for work-related purposes. See,

e.g., Allred v. Allred-Gardner, Inc., 253 N.C. 554, 556, 117 S.E.2d 476, 478 (1960)

(plaintiff blacked out and crashed into pole while driving vehicle to run errand for

employer); Billings, 187 N.C. App. at 587, 654 S.E.2d at 259 (plaintiff suffered

“syncopal episode (i.e., blackout) while operating defendant-employer’s truck, after

which time the truck ran off the road, hit a light pole, and flipped over”); Chavis v.

TLC Home Health Care, 172 N.C. App. 366, 373, 616 S.E.2d 403, 410 (2005) (plaintiff

was traveling for job-related purposes and blacked out while driving vehicle), appeal

dismissed, 360 N.C. 288, 627 S.E.2d 464 (2006). These cases, however, are materially

distinguishable on their facts from the present case.

      Where the relationship between a plaintiff’s employment and his injury is too

attenuated, our Supreme Court has held that the injury does not arise out of the

plaintiff’s employment.    We find particularly instructive our Supreme Court’s

decision in Vause v. Vause Farm Equipment Company, 233 N.C. 88, 63 S.E.2d 173

(1951). In Vause, the plaintiff had previously suffered from epileptic convulsions for

many years and could “feel one of these seizures when it was coming on.” Id. at 93,



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                                    Opinion of the Court



63 S.E.2d at 177. The plaintiff realized he was about to have a seizure “while driving

a pick-up truck in the course of his employment to the home of a customer for the

purpose of servicing a tractor . . . .” Id. at 89, 63 S.E.2d at 173.

       Upon feeling “faint and ill[,]” the plaintiff “pulled the truck over to the side of

the road and parked, then opened the door on his left, threw his feet outside, and lay

down on the seat of the truck with his head on the side opposite from the steering

wheel, and immediately suffered an epileptic seizure that caused him to lose

consciousness.” Id. When he regained consciousness, the plaintiff was “hanging to

the steering wheel with his hands; his body was outside of the truck with one foot on

the running board and the other dangling [to the] side of it.” Id. at 89-90, 63 S.E.2d

at 173. The plaintiff suffered various injuries as a result of the incident. Id. at 90,

63 S.E.2d at 173.

       The plaintiff filed a workers’ compensation claim, and the Commission

determined that his injury had arisen out of his employment. Id. On appeal, our

Supreme Court reversed the Commission’s award of benefits, ruling that the injury

was not caused by the plaintiff’s employment. Id. at 98, 63 S.E.2d at 181. In so

holding, the Court stated as follows:

              Conceding that, as found by the Commission, the plaintiff
              in being required to drive the truck to perform his work,
              was (thereby) subjected to a peculiar hazard, even so the
              evidence here discloses no causal connection between the
              operation of the truck and the injury. The evidence here
              shows that the plaintiff felt the epileptic seizure coming on.


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                         BROOKS V. CITY OF WINSTON-SALEM

                                  Opinion of the Court



             He pulled the truck off the road, parked it, and lay down
             on the seat in a place of apparent safety, with all of the
             ordinary dangers of his employment suspended and in
             repose. We perceive in this evidence no showing that any
             hazard of the employment contributed in any degree to the
             unfortunate occurrence. The evidence affirmatively shows
             that it was solely the force of his unfortunate seizure that
             moved him from his position of safety to his injury. The
             cause of the fall is not in doubt. It is not subject to dual
             inferences. All of the evidence shows that the cause of the
             plaintiff’s fall was independent of, unrelated to, and apart
             from the employment. . . . The chain of cause and effect
             clearly leads in unbroken sequence from the plaintiff’s
             unfortunate physical seizure, brought on by a pre-existing
             infirmity, to his injury. The award below can be sustained
             only by disregarding the epileptic seizure as a cause of the
             injury and by starting in the chain of causation at the point
             of the fall. To say that the injury was caused by the fall,
             and thus eliminate from consideration the epileptic seizure
             as the cause of the fall is not in accord with the
             fundamental principles by which the law fixes and
             determines the cause and effect of events. Any such
             process of reasoning, in effect, would strike out of the
             Workmen’s Compensation Act the provision which requires
             that an injury to be compensable shall arise out of the
             employment.

Id. at 98, 63 S.E.2d at 180-81 (internal citation and quotation marks omitted).

      We are further guided by the Supreme Court’s decision in Bartlett v. Duke

University, 284 N.C. 230, 200 S.E.2d 193 (1973), which involved a decedent who had

been employed by Duke University as a construction administrator and was traveling

to Washington, D.C. in order to recruit a maintenance engineer. Id. at 231, 200

S.E.2d at 194. During his trip, he had dinner with a friend at a restaurant in a nearby

town. Id. While eating shish kebab at the restaurant, the decedent “aspirated a


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                                   Opinion of the Court



chunk of meat and immediately became unconscious.”            Id.   He never regained

consciousness and died two months later. Id. at 231, 200 S.E.2d at 194.

      The decedent’s widow filed for workers’ compensation benefits.                The

Commission awarded benefits, concluding that the decedent’s death “resulted from

an injury by accident arising out of and in the course of his employment . . . .” Id.

Our Supreme Court reversed the award, holding that the death did not arise out of

the employment because “[t]here [wa]s no causal relationship between choking on a

piece of steak and the employment of decedent, even though he was eating while he

was on the job.” Id. at 235, 200 S.E.2d at 196 (citation and quotation marks omitted).

The Court held that

             the conditions of his employment had no bearing on the fact
             he choked to death. His injury resulted entirely from an
             unintentional but self-inflicted mishap. There is no
             evidence whatever that the choking was induced by any
             business activity.

Id. at 235, 200 S.E.2d at 196 (citations and quotation marks omitted).

      These same principles apply to the present case. Brooks was on his lunch

break at a gas station. After parking his employer’s truck, he ate his meal in the

truck and then went into the gas station to purchase cigarettes. When he returned

to the truck, he inhaled an e-cigarette, began coughing, stepped out of his truck,

passed out, and fell on the cement curb. While admittedly Brooks would not have

been at the gas station but for his job, his fall was not traceable to the conditions of



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                                   BROOKS V. CITY OF WINSTON-SALEM

                                              Opinion of the Court



his employment. Rather, Brooks’ own actions and his idiopathic condition were the

sole forces causing his injuries. He chose to purchase an e-cigarette, return to the

truck, smoke the cigarette, and ultimately step outside of the truck to get fresh air.

None of these actions were required by his employment or served to benefit his

employer.1 Thus, no hazard related to Brooks’ employment with the City contributed

to his injury. See Vause, 233 N.C. at 98, 63 S.E.2d at 180.

           In his final argument, Brooks contends that the Commission should have

employed the “unexplained fall” doctrine based on these facts.                             “Unexplained

falls . . . are differentiated in our case law from falls associated with an idiopathic

condition of the employee.” Philbeck, 235 N.C. App. at 128, 761 S.E.2d at 672. Brooks

contends that it is unknown whether his injury was actually caused by his idiopathic

condition or, alternatively, whether it was attributable to his employment. See id.

(“When a fall is unexplained, and the Commission has made no finding that any force

or condition independent of the employment caused the fall, then an inference arises

that the fall arose out of the employment.” (citation and quotation marks omitted)).

Here, however, the Commission did expressly find that Brooks’ idiopathic condition

was the sole cause of his fall. Thus, the “unexplained fall” doctrine is inapplicable on

these facts. See id. (“Unlike a fall with an unknown cause — where an inference that

the fall had its origin in the employment is permitted — a fall connected to an


           1   Indeed, as noted earlier, the City’s policies prohibited its employees from smoking in a City
vehicle.

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                        BROOKS V. CITY OF WINSTON-SALEM

                                 Opinion of the Court



idiopathic condition is not presumed to arise out of the employment.” (citation and

quotation marks omitted)).

      Because Brooks’ fall resulted from his own idiopathic condition and was not

caused by a hazard of his employment, the Commission properly concluded that the

injury did not arise out of his employment. Thus, his injury was not compensable

under the Workers’ Compensation Act.

                                   Conclusion

      For the reasons stated above, we affirm the Commission’s 19 July 2017 opinion

and award.

      AFFIRMED.

      Judges INMAN and MURPHY concur.




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