Jackson Ex Rel. Jackson v. North Carolina State Highway Commission , 272 N.C. 697 ( 1968 )

158 S.E.2d 865 (1968) 272 N.C. 697

Rachel D. JACKSON, Widow and Next Friend of Kenon Elton Jackson, Carlton Edsell Jackson and Karen Elaco Jackson, Kenon Jackson, Deceased, Employee, Plaintiffs,
v.
NORTH CAROLINA STATE HIGHWAY COMMISSION, Employer, Self-Insurer, Defendant.

No. 605.

Supreme Court of North Carolina.

February 2, 1968.

Thomas Wade Bruton, Atty. Gen., Harrison Lewis, Deputy Atty. Gen., Henry T. Rosser, Asst. Atty. Gen., Fred P. Parker, III, Staff Attorney, Raleigh, for defendant appellee.

Teague, Johnson, Patterson, Dilthey & Clay, by G. S. Patterson, Jr., Raleigh, for plaintiff appellants.

HIGGINS, Justice:

Under the Workmen's Compensation Act, the North Carolina Industrial Commission is constituted the agency to hear evidence, resolve conflicts therein, make findings of fact, and state its conclusions. If the findings are supported by competent evidence, they are conclusive on the courts. Osborne v. Colonial Ice Co., 249 N.C. 387, 106 S.E.2d 573; Vause v. Farm Equipment Co., 233 N.C. 88, 63 S.E.2d 173; Riddick v. Richmond Cedar Works, 227 N.C. 647, 43 S.E.2d 850. However, the Commission's legal conclusions are subject to court review. Ballenger Paving Co. v. North Carolina State Highway Comm., 258 N.C. 691, 129 S.E.2d 245; Brice v. Robertson House Moving, Wrecking and Salvage Co., 249 N.C. 74, 105 S.E.2d 439. In order to support the claim, the death must result from accident. "``Death from injury by accident implies a result produced by fortuitous cause. * * * There must be an accident followed by an injury by such accident which results in harm to the employee before it is compensable under our statute.' Absent accident (fortuitous event), 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; Slade v. Willis Hosiery Mills, 209 N.C. 823, 184 S.E. 844. "The language used as well as the conclusions reached have supported the interpretation that an injury and accident are separate and that there must be an accident which produces the injury before the employee can be awarded compensation." Hensley v. Farmers Federation Cooperative, 246 N.C. 274, 98 S.E.2d 289; Buchanan v. State Highway & Public Works Comm., 217 N.C. 173, 73 S.E.2d 382.

This Court has held that extra exertion by the employee, resulting in injury, may qualify as an injury by accident. Gabriel v. Town of Newton, 227 N.C. 314, 42 S.E.2d 96. But this holding allowed compensation because the extra and unusual exertion was accidental and had produced the original heart attack by placing an extra strain on the heart. Some of the cases in which the unusual strain theory was determinative are: Wyatt v. Sharp, 239 N.C. 655, 80 S.E.2d 762; Anderson v. Northwestern Motor Co., 233 N.C. 372, 64 S.E.2d 265; Gabriel v. Town of Newton, supra; Doggett v. South Atlantic Warehouse Co., 212 N.C. 599, 194 S.E. 111. These cases on which the claimants rely do not fit the condition of Mr. Jackson as shown by the evidence and as found by the Commission. The controlling cases hold that death from heart attacks which occur in the usual course of employment are not compensable. Andrews v. County of Pitt, 269 N.C. 577, 153 S.E.2d 67; Ferrell v. Montgomery & Aldridge Sales Co., 262 N.C. 76, 136 S.E.2d 227; Bellamy v. Morace Stevedoring Co., 258 N.C. 327, 128 S.E.2d 395; Lewter v. Abercrombie Enterprises, Inc., 240 N.C. 399, 82 S.E.2d 410.

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. In this case, Mr. Jackson was operating a motor grader removing snow from the highway. The evidence and findings are that he was by himself; that the motor grader stopped and a considerable time thereafter he was found slumped over in the cab of the grader. Death had resulted from what proved to be a massive coronary occlusion. He was on call for extra hours, but had had periods of rest. The extra hours on call were customary when, by weather conditions, there was need for the use of the machine he operated. The operation of the machine was not exacting physically. The hours during which Mr. Jackson was on duty were usual and customary when the conditions required the use of the scraper to open the section of the highway assigned to him. Mr. Jackson had been performing this same service for 18 years except for the time he was recovering from a prior heart attack.

The evidence in this case was sufficient to justify the Commission in findings of fact and concluding therefrom that Mr. Jackson's death was not caused by accident arising out of and in the course of his employment. The judgment entered in the Superior Court is

Affirmed.

PARKER, C. J., dissents.