An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-910
                       NORTH CAROLINA COURT OF APPEALS

                                Filed:    6 May 2014


CHRISTIAN MURILLO PAREDONES and
GISELL GUADALUPE MURILLO
PAREDONES, Minor Children of
Decedent-Employee FELIPE PACHECO
FLORES a/k/a MURILLO ARELLANO
GUMERCINDO,
     Plaintiffs

      v.                                      North Carolina
                                              Industrial Commission
                                              I.C. No. W60905
WRENN BROTHERS, Employer, and
CONTINENTAL INDEMNITY COMPANY,
Carrier,
     Defendants


      Appeal by plaintiffs from opinion and award entered 9 April

2013 by the North Carolina Industrial Commission.                   Heard in the

Court of Appeals 8 January 2014.


      Moody, Williams, Roper & Lee, LLP, by C. Todd Roper, for
      plaintiff-appellants.

      Hedrick Gardner Kincheloe & Garofalo, LLP, by M. Duane
      Jones and Vachelle D. Willis, for defendant-appellees.


      CALABRIA, Judge.


      Christian Murillo Paredones and Gisell Guadalupe                     Murillo

Paredones     (collectively      “plaintiffs”),       the   minor    children     of
                                                -2-
Felipe       Pacheco        Flores       a/k/a        Murillo          Arellano          Gumercindo

(“Flores”), appeal from an opinion and award entered by the Full

Commission      of     the    North      Carolina        Industrial           Commission         (“the

Commission”)         which        denied        plaintiffs’            claim       for      workers’

compensation death benefits.                    The Full Commission concluded that

Flores’s death did not arise out of his employment with Wrenn

Brothers (“defendant-employer”).                      We affirm.

       Flores    came        to   the    United       States          from    Mexico      and    used

falsified       documentation            to     obtain       employment            in    defendant-

employer’s lumber mill in Siler City, North Carolina in 1996.

On 8 September 2008, Flores was working in the planer room of

defendant-employer’s              plant       when     one       of     his    fellow       workers

indicated       that     the      plant        was    about       to     be    raided       by    the

Immigration      and        Naturalization           Service      (“INS”).              Flores     and

others       attempted       to    run    away,       but     after          100    yards      Flores

collapsed and died.               An autopsy later determined that Flores had

suffered a fatal heart attack.

       On 18 December 2009, the administrator of Flores’s estate

filed    a    Form     18    seeking          workers’      compensation            benefits       for

Flores’s death.             Defendant-employer denied the claim, which was

then     assigned       for       hearing.            On     8    October          2012,       Deputy

Commissioner         Philip       A.    Baddour       filed       an     opinion         and     award
                                          -3-
denying plaintiffs’ claim because Flores’s death did not arise

out of his employment with defendant-employer.                     Plaintiffs then

appealed     to    the   Full    Commission,     which     affirmed      the   deputy

commissioner’s opinion and award on 9 April 2013.                           Plaintiffs

appeal.

      Review of an opinion and award of the Industrial Commission

“is   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.   This

‘court’s duty goes no further than to determine whether the

record contains any evidence tending to support the finding.’”

Richardson v. Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660,

669 S.E.2d 582, 584 (2008) (citation omitted) (quoting Anderson

v. Lincoln Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274

(1965)).

      Plaintiffs argue that the Commission erred by concluding

that Flores’s death was not compensable.               We disagree.

      “For    an    injury      to   be   compensable      under      the    Worker’s

Compensation Act, the claimant must prove 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.” Hollar v. Furniture Co., 48
                                      -4-
N.C. App. 489, 490, 269 S.E.2d 667, 669 (1980).                In the instant

case, the Commission concluded that plaintiffs were not entitled

to death benefits because they failed to prove that Flores’s

death arose out of his employment.

            The words “arising out of the employment”
            refer to the origin or cause of the
            accidental    injury.    [A]    contributing
            proximate cause of the injury must be a risk
            inherent or incidental to the employment,
            and must be one to which the employee would
            not have been equally exposed apart from the
            employment.    Under this “increased risk”
            analysis, the causative danger must be
            peculiar to the work and not common to the
            neighborhood.

Chavis v. TLC Home Health Care, 172 N.C. App. 366, 372, 616

S.E.2d   403,      409   (2005)(internal      quotations       and    citations

omitted).     In its opinion and award denying plaintiffs’ claim,

the   Commission    found   that    Flores   “died    as   a   result    of   his

attempt to evade what he believed to be an imminent raid by

immigration     officials.”        The   Commission    further       found    that

Flores “was equally exposed to the risks associated with being

an illegal immigrant, including being apprehended due to his

illegal status, apart from his employment.”                Based upon these

findings, the Commission concluded that Flores’s death did not

arise from his employment.
                                          -5-
    Plaintiffs argue that the Commission’s findings were not

supported by the evidence.                Specifically, plaintiffs point to

evidence       that    defendant-employer            had    twenty-five        to    thirty

Hispanic employees, that there were chicken plants in the area

which    had    recently    been       raided   by     INS,      and    that   defendant-

employer       had     increased        awareness          of    immigration         raids.

Plaintiffs       contend        that    this     evidence         demonstrated            that

defendant-employer         was    subject       to    a    heightened      risk      of    an

immigration raid and that this heightened risk was inherent to

Flores’s employment.

    However, the Commission specifically determined that this

evidence was insufficient to support plaintiffs’ theory, finding

that there was no direct evidence that the racial makeup of

defendant-employer’s            workforce       increased         the     risk       of     an

immigration raid.          This finding is supported by the evidence

presented during the hearing.                   Defendant-employer’s secretary

Robert    Wrenn       specifically      testified         that   there     had      been   no

immigration       raids    in    Siler    City,       where      defendant-employer’s

plant was located.          Moreover, the fact that defendant-employer

had many Hispanic employees proves nothing in and of itself.

There was no evidence that these Hispanic employees were not

legal workers or that defendant-employer sought to hire illegal
                                         -6-
workers.      There was also no evidence presented that defendant-

employer had any knowledge that Flores had falsified documents

in order to obtain employment from defendant-employer.                 In the

absence of any direct connection between defendant-employer and

undocumented workers, the Commission was free as the finder of

fact to reject the inference that plaintiffs attempted to draw

between defendant-employer’s Hispanic employees and a possible

immigration raid.       See Cooper v. Cooper Enters., Inc., 168 N.C.

App.   562,    564,    608   S.E.2d      104,   106   (2005)(“The   Industrial

Commission is the sole judge of the weight and credibility of

the evidence[.]” (internal quotations and citation omitted)).

       Ultimately, the Commission’s findings (1) that Flores died

while fleeing from an apparent immigration raid and (2) that

there was no evidence of an increased risk to Flores of an

immigration     raid   as    part   of    his   employment   with   defendant-

employer were supported by competent evidence.                These findings

adequately demonstrated that Flores’s death was caused by a risk

which was neither “inherent or incidental to the employment” nor

a risk to which Flores “would not have been equally exposed

apart from the employment.”           Chavis, 172 N.C. App. at 372, 616

S.E.2d at 409.         Thus, the Commission properly concluded that

Flores’s death did not arise out of his employment and that, as
                                 -7-
a result, plaintiffs were not entitled to workers’ compensation

benefits.       The   Commission’s     opinion   and   award   denying

plaintiffs’ claim is affirmed.

    Affirmed.

    Judges BRYANT and GEER concur.

    Report per Rule 30(e).
