IN THE COURT OF APPEALS OF NORTH CAROLINA
2022

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- 623 No. COA 22

- 188 Filed 20 September 2022
North Carolina Industrial Commission , I.C. No. 17

- 030792 JAMES FR Y E, ANTHONY FRYE , a nd APRIL FRYE, Next of Kin of TONEY A. FRYE, Deceased Employee , Plaintiff s,

v. HAMROCK, LLC, Employer, CAROLINA MUTUAL INS. CO., Carrier , Defendant s . Appeal by defendants from opinion and award entered 8 November 2021 by
t he North Carolina Industrial Commission

. Heard in the Court of Appeals 10 August
2022.
Sigmon, Clark, Mackie, Hanvey & Ferrell, P.A., by Andrew J. Howell, for plaintiff s - appellee s . Orbock Ruark & Dillard, PC, by Barbara E. Ruark, for defendants

- appellants.

ZACHARY , Judge.

¶ 1 Defendants Hamrock, LLC and Carolina Mutual Insurance Company appeal from an Opinion and Award entered on 8 November 2021 by the f ull North Carolina Industrial Commission “determin[ing] that the Employee’s death was compensable under the Workers’ Compensat ion Act

. ” After careful review, we affirm. I. Background ¶ 2 On 18 July 2017, Toney A. Frye (“Decedent”) was driving a “ dump truck filledF RYE V
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with a load of asphalt ” for his employer, Defendant Hamrock , LLC

. As Decedent drove southbound down Coxes Creek Mountain on a stretch of U.S. Highway 226 in Marion that “ is steeply graded, curvy, and notorious for motor vehicle accidents [ , ] ” the dump truck crossed the double yellow lines and collided head

- on with an oncoming vehicle

. The dump truck then crashed into an embankment before coming to rest on its side

. ¶ 3 Multiple witnesses observed Decedent’s truck prior to the accident. Among these witnesses was Special Agent Jennifer Trantham , who was traveling northbound on Highway 226 when she not iced Decedent’s truck traveling southbound “at an unsafe speed.” She reported that she saw Decedent immediately prior to the accident with “what appeared to be, a cigarette in his left hand with his left arm resting on the window sill [sic]” and “[h]eavy s moke . . . billowing from the rear axles of the truck.” Later, at her deposition in this matter, Special Agent Trantham added that Decedent was “very conscious” and appeared “very calm” when she saw him, and that he did not appear “s lumped over the wheel o r down in the cab.”
¶ 4 Decedent and the front

- seat passenger of the oncoming vehicle were declared dead at the scene. The EMS Narrative from the scene state d that Decedent was “pinned in pulseless and not breathing [,] ” having suffered a “crush injury

. . . due to the weight applied to [ Decedent ] from the truck.” The EMS Narrative also report ed that the extrication process was “exten ded [ , ] ” exceed ing twenty minutes , because of “the metal wrapped around the driver compartment [.]” Decedent’s death certifica teF RYE V
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state d that his “immediate cause” of death was “multi

- system trauma” and “motor vehicle collision.”
¶ 5 Eugene R. Edwards, a paramedic who responded to the accident, reported that the roof of the dump truck appear ed to have “ collapsed on to [Decedent ] ’s head and back pinning him between the roof and steering wheel.” Edwards and the McDowell County Medical Examiner later “ examined Decedent at the funeral home , ” a t which time Edwards noted “a hematoma to the back of the head . . . [approximately] 2.5 inches in diameter protruding outward [approximately] 1” in height [ , ] ” as well as, inter alia , multiple lacerations to the head and bruising to the shoulder and back

. Edward s also reported that “an autopsy was initially ‘ refused ’ as the physician

. . . fel t [it] would not benefit the outcome[.]”
¶ 6 On 19 July 2017, Defendants filed a Form 19 Employer’s Report of Employee’s Injury or Occupation al Disease to the Industrial Commission, as well as a motion for

an autopsy

. S ee N.C. Gen. Stat. § 97

- 27 (2021)

. D efendants’ motion was granted that same day. On 20 July 2017, Dr. Brent Hall conducted an autopsy and concluded that

“ [ t]he cause of death in this case was ischemic heart disease secondary to coronary heart disease.” He also noted “multiple fresh abrasions of the head, trunk, and extremities” but did not identify any “significant trauma.”
¶ 7 On 9 October 2017, Defendants filed a Form 61 Denial of Workers’ Compensation Claim . T he stated reason for the denial was : “ N o injury by accidentF RYE V
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during the normal course and scop [ e ] of employment. The employee ’ s cause of death was related to an idiopathic health condition and not related to any trauma or work incident. ” On 24 August 2018, Plaintiffs’ counsel filed a Form 33 Request tha t Claim b e Assigned for Hearing . On 23 October 2018, Defendants filed a Form 33R Response to Request that Claim be Assigned for Hearing, asserting that:

[ Decedent]’s accident and death were caused by an underlying heart condition

. Defendants contend that [ Decedent] had a heart condition that precipitated both the accident and resulting in his death. Defendants contend that the autopsy report confirms that [ Decedent] did not die of any cause that would have been due to the work

related accident. ¶ 8 This ma tter came on for hearing, via deposition testimony only, before the D eputy C ommissioner. Among the witnesses who provided deposition testimony were Special Agent Trantham and Dr. Hall. On 8 April 2020, the Deputy Commissioner entered an Opinion and Award d enying the claim. Plaintiffs ’ counsel timely filed notice of appeal to the f ull North Carolina Industrial Commission

. ¶ 9 On 13 August 2020, the matter came before the Full Commission, and on 8 November 2021, the Full Commission entered its Opinion and Award. The Full Commission concluded that Plaintiffs were entitled to the Pickrell presumption

— that, “where the circumstances bearing on work

- relatedness are unknown and the death occurs within the course of employment, claimants should be able to rely on a presumption that death was work

- related, and therefore compensable, whether theF RYE V
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medical reason for death is known or unknow n[,]” Pickrell v. Motor Convoy, Inc. , 322 N.C. 363, 370, 368 S.E.2d 582, 586 (1988)

— and that Defendants ha d not provided sufficient evidence to rebut the presumption. Alternatively, the Full Commission concluded that Plaintiffs had shown that “Decedent was exposed to a special hazard” because “ Decedent ’ s position in attempting to control a dump truck loaded with asphalt careening down the mountainside [ ] subjected him to unusually stressful and extreme conditions of his employment. ”
¶ 10 Accordingly, the Full Commission entered an award of 500 weeks of death benefits, beginning from Decedent’s date of death , to Plaintiffs James Frye, Anthony Frye, and April Frye , Decedent’s children and next of kin. The Full Commission also ordered that Defendants pay Dece dent’s burial and funeral costs, not to exceed $10,000.00, as well as “all medical bills for Decedent that were incurred as a result of his death.” Defendants timely filed notice of appeal. II. Discussion ¶ 11 On appeal, Defendants argue (1) that the Full Com mission erred by concluding that the Pickrell presumption applies in this case; (2) that, even if the Pickrell presumption does apply, Defendants have successfully rebutted it; and (3) that the Full Commission erred by concluding, in the alternative, that Decedent’s heart attack was the result of a work

- related accident. A. Standard of ReviewF RYE V
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¶ 12 “Appellate review of an award from the Industrial Commission is generally limited to two issues: (i) whether the findings of fact are supported by competent eviden ce, and (ii) whether the conclusions of law are justified by the findings of fact.” Chambers v. Transit Mgmt. , 360 N.C. 609, 611, 636 S.E.2d 553, 555 (2006) , reh’g denied , 361 N.C. 227, 641 S.E.2d 801 (2007)

. Because the Commission “is the sole judge of the weight and credibility of the evidence,” its “ findings of fact are conclusive on appeal if supported by competent evidence [.]” Blackwell v. N. C. Dep ’ t of Pub. Instruction , 282 N.C. App. 24, 2022

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- 123, ¶ 5 (citation omitted). Th us , in reviewing an opinion and award of the Industrial Commission, “our function is not to weigh the evidence but is to determine whether the record contains any competent evidence tending to support the findings.” Strickland v. Cent. Serv. Motor Co. , 94 N.C. App. 79, 82, 379 S.E.2d 645, 647 , disc. review denied , 325 N.C. 276, 384 S.E.2d 530 (1989).
¶ 13 “Findings not supported by competent evidence are not conclusive and will be set aside on appeal. But findings supported by com petent evidence are conclusive, even when there is evidence to support contrary findings. ” Johnson v. Covil Corp. , 212 N.C. App. 407, 408

– 09, 711 S.E.2d 500, 502 (2011) (citations and internal quotation marks omitted). “Unchallenged findings of fact are pr esumed to be supported by competent evidence and are binding on appeal.” Fields v. H&E Equip. Servs., LLC , 240 N.C. App. 483, 485

– 86, 771 S.E.2d 791, 793 (2015) (citation omitted).F RYE V
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¶ 14 The Commission’s conclusions of law are reviewed de novo. Blackwell , 282 N.C. App. 24, 2022

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- 123, ¶ 5. Under de novo review, th is C ourt “ considers the matter anew and freely substitutes its own judgment for that of the lower tribunal.” Fields , 240 N.C. App. at 486, 771 S.E.2d at 793

– 94 (citation omitted). B. Analysis ¶ 15 Defendants first argue that the Full Commission erred by concluding that the Pickrell presumption is applicable to this case , and that if it does apply, they have successfully rebutted the presumption

. We disagree.
¶ 16 “In order for a claimant to recover workers ’ compensation benefits for death, ” the claimant bears the burden of proving “ that death resulted from an injury (1) by accident; (2) arising out of his employment; and (3) in the course of the employment.” Pickrell , 322 N.C. at 366, 368 S.E .2d at 584 ; see N.C. Gen. Stat. § 97

- 2(6), (10). In Pickrell , our Supreme Court examined the question of “what mode of proof ” a claimant may use to meet this burden “ where the evidence shows [the] decedent died in the course and scope of his employment, bu t there is no evidence as to whether the cause of death was work

- related, i.e. , from an injury by accident arising out of employment.” 322 N.C. at 366, 368 S.E.2d at 584.
¶ 17 Our Supreme Court explained that “[t]he general rule is that a claimant under

s uch circumstances may rely upon a presumption that the death resulted proximately from a work

- related injury[.]” Id. at 367, 368 S.E.2d at 584. Thus, our Supreme CourtF RYE V
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articulated what is commonly known as the Pickrell presumption:

In cases

. . . where the circumstances bearing on work

relatedness are unknown and the death occurs within the course of employment, claimants should be able to rely on a presumption that death was work

- related, and therefore compensable, whether the medical reason for death is k nown or unknown. Id. at 370, 368 S.E.2d at 586

. This presumption “may be used to help a claimant carry [the claimant’s ] burden of proving that death was caused by accident, or that it arose out of the decedent’s employment, or both.” Id. at 368, 368 S.E.2d at 585.
¶ 18 “The first step in the analysis is whether the presumption applies, based upon the facts of the case.” Gray v. United Parcel Servs., Inc. , 212 N.C. App. 674, 678, 713 S.E.2d 126, 129, disc. review and cert. denied , 365 N.C . 351, 717 S.E.2d 743 (2011). O nce the Commission determine s that a claimant is entitled to rely upon th e Pickrell presumption , “ t he defendant must come forward with some evidence that death occurred as a result of a non

- compensable cause; otherwise, the c laimant prevails. ” Pickrell , 322 N.C. at 371, 368 S.E.2d at 586. However,

[i] n 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 add uced, 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. Id.F RYE V
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¶ 19 Defendants contend that the Full Commission erred by concluding that the Pickrell presumption applie s in the instant case for two reasons. First, Defendants argue that the Pickrell presumption should only apply when the claimant is “found dead” and that the presumption “sho uld not be broadened to encompass the facts of the current case.” Second, Defendants argue that the Pickrell presumption should not apply because there is evidence that Decedent died as a result of a non

- compensable

cause. 1. “Found Dead” ¶ 20 Defendants fi rst argue that the Full Commission erred in applying the Pickrell presumption because it failed to consider

— or even acknowledge

— the requirement that a claimant be “ found dead” in order for the Pickrell presumption to apply. However, Defendants’ argument co nstrues Pickrell too narrowly.
¶ 21 Defendants ’ argument is primarily predicated on our Supreme Court ’s justif ication of the Pickrell presumption, in part, on th e basis that “[ i ] n unexplained death cases where the medical reason for death is known , . . . the circumstances bearing on work

- relatedness remain unknown. It is these circumstances, not the medical reasons for death, which are critical in determining whether a claimant is entitled to workers’ compensation benefits. ” Id. at 369

– 70, 368 S.E.2d at 58 6. Our Supreme Court reasoned that a presumption of compensability would be appropriate in these cases because , inter alia , “[e]mployers may be in a better position than theF RYE V
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family of the decedent to offer evidence on the circumstances of the death. Their employees ordinarily are the last to see the decedent alive, and the first to discover the body. ” Id. at 370, 368 S.E.2d at 586.
¶ 22 Defendants rely on this language to support their argument that the Pickrell presumption should not apply in the case at bar because Decedent’s “coworkers were not the last individuals to see him alive and were not the individuals to discover [his] body.” Defendants further argue that Decedent “was not found dead, as there were several individuals who witnessed t he events leading up to the motor vehicle accident” and “no one contends that a passerby happened upon [Decedent]’s wrecked vehicle and found him dead inside.” As such, Defendants maintain that the Full Commission erred by expanding the scope of the Pickre ll presumption “beyond what [our Supreme Court] originally intended.”
¶ 23 However, careful review of Pickrell and subsequent case law shows that being “found dead” is not, in and of itself, a necessary condition for application of the presumption as art iculated by our Supreme Court. Defendants acknowledge as much, noting that “[a]s time has passed,” our appellate courts have, “without explanation,

. . . sometimes failed to apply the requirement” that the deceased employee be “found dead.” Indeed, as our Supreme Court articulated in Pickrell , the presumption applies in cases “where the circumstances bearing on work

- relatedness are unknown and the death occurs within the course of employment,

. . . whether the medical reason forF RYE V
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death is known or unknown.” Id. A decedent being “found dead” may naturally inform the application of the Pickrell presumption, given that it is a fact

- dependent analysis,

see Gray , 212 N.C. App. at 678, 713 S.E.2d at 129, and it is the “circumstances bearing on work

- relatedness ” that “ are critical in determining whether a claimant is entitled to workers’ compensation benefits [,] ” Pickrell , 322 N.C. at 370, 368 S.E.2d at 586.
¶ 24 Accordingly , Defendants’ argument is overruled.

2. Compensab le Cause of Death ¶ 25 Defendants next arg ue that the Pickrell presumption does not apply in this case because “there is evidence that [Decedent] died from a cause other than a compensable cause [.]” Defendants contend that Dr. Hall’s autopsy “confirmed that [D]ecedent died from a heart attack and that he was dead prior to the time of any impact [ , ] ” and that this Court has held that the Pickrell presumption “is applicable

. . . only where there is no evidence that [the] decedent died other than by a compensable cause.” Gilbert v. Entenmann ’ s, Inc. , 113 N.C. App. 619, 623, 440 S.E.2d 115, 118 (1994)

. However, as Defendants candidly acknowledge in their brief, this Court has previously distinguished Gilbert with respect to deaths attributable to heart attacks.
¶ 26 In Wooten v. Newcon Transp ortation , Inc. , the defendants relied upon Gilbert for the same principle as do Defendants in the present case

. 178 N.C. App. 698, 702, 632 S.E.2d 525, 528 (2006) , disc. review denied , 361 N.C. 704, 655 S.E.2d 405 (2007)

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T he Wooten Court explained that

in Gilbert , the Court concluded that [the] plaintiff was not entitled to the Pickrell presumption because [the] decedent died from a subarachnoid hemorrhage, which is not a compensable cause. In contrast, an injury caused by a heart attack may be compensable if the heart attack is due to an accident, such as when the heart attack is due to unusual or extraordinary exertion or extreme conditions. Id. (citation and internal quotation marks omitte d); see also Pickrell , 322 N.C. at 370, 368 S.E.2d at 586 (“ A

. . . heart attack may, or may not, be compensable, depending on the manner in which the event occurred .” (emphasis added) ). Further, the Wooten Court “note[d] that there was no evidence

. . . t hat [the] decedent died by other than a compensable cause ” because the Full Commission concluded in the opinion and award on review in that case that “ t he evidence fail [ed] to show whether [the] decedent had a heart attack that caused the motor vehicle acc ident or whether the circumstances of the accident caused [the] decedent ’ s heart arrhythmia.” 178 N.C. App. at 703, 632 S.E.2d at 528.
¶ 27 Here, as in Wooten , the Full Commission found that “ the exact cause of [Decedent]’s heart attack remains unknown. ” Notably, t he Full Commission expressly gave weight to the deposition testimony of Defendants’ expert, Dr. Hall, in which he “ admitted that he could not, to a reasonable degree of medical certainty, give an opinion as to ‘ whether [Decedent] had this acciden t because of a heart attack or whether he had a heart attack because of the circumstances of this accident. ’ ” ThisF RYE V
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last finding is significantly similar to the dispositive finding in Wooten that “ t he evidence fail [ed] to show whether [the] decedent had a heart attack that caused the motor vehicle accident or whether the circumstances of the accident caused [the] decedent ’ s heart arrhythmia.” Id. A s “our function is not to weigh the evidence but is to determine whether the record contains any competent evid ence tending to support the findings[,]” Strickland , 94 N.C. App. at 82, 379 S.E.2d at 647, and the record contain s competent evidence in the form of Defendants’ expert’s testimony, we are bound by the Full Commission’s weighing of this evidence.
¶ 28 Def

endants do not challenge the finding of fact that recites relevant portions of Special Agent Trantham’s testimony:

Special Agent Trantham testified that [Decedent] “was traveling at a high rate of speed” and appeared “very calm.” She further testified that [Decedent] “traveled over into her lane” as he was “coming out of a curve.” She recalled that [Decedent]’s “head was tu rn ed to be able to see her” and “he had his arm hanging out of the window . . . and it appeared that he had a cigarette in his . . . left hand.” According to Special Agent Trantham, [Decedent] was “very conscious” and did not appear “slumped over the wheel or down in the cab.” (Ellipses in original). ¶ 29 Nevertheless, Defendants challenge the Full Commission’s related finding that , in pertinent part, “ the Full Commission gives weight to the testimony of Special Agent Trantham who saw [Decedent] moments before his death, driving his vehicleF RYE V
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while ‘ very conscious, ’ but also not in complete control of his l o aded dump truck, traveling at an unsafe speed down a curvy, steep mountain road. ” However, as stated above, the Full Commission “is the sole judge of the weight and credibility of the evidence,” and its “ findings of fact are conclusive on appeal if supported by competent evidence [.] ” Blackwell , 282 N.C. App. 24, 2022

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- 123, ¶ 5 (citation omitted). We are similarly bound by the Full Commission’s determination to “give[ ] weight to the testimony of Special Agent Trantham” and, as the Full Commission’s findings are supported by her testimony, this challenged finding of fact is conclusive on appeal. See id.
¶ 30 Accordingly, the Full Commission’s findings of fact support its conclusion that “[t] he greater weight of the evidence indicates that the circumstances regarding the work

- rela tedness of Decedent’s heart attack a r e unknown and that the death occurred as the result of an injury by accident sustained in the course and scope of Decedent’s employment. ” I n that “the circumstances [of Decedent’s death] bearing on work

- relatedness are unknown and the death occur[red] within the course of employment[,]” Pickrell , 322 N.C. at 370, 368 S.E.2d at 586, the Full Commission appropriately conclude d that the Pickrell presumption applies in this case and th erefore “the burden shift[ed] to Defendants to rebut this presumption and show that the heart attack did not arise out of the employment. ”
3. Rebuttal of the Pickrell PresumptionF RYE V
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¶ 31 Defendants next argue that “they have rebutted the [ Pickrell ] presumption and it no longer exists.” “In order to rebut the presumption, the defendant has the burden of producing credible evidence that the death was not accidental or did not arise out of employment.” Wooten , 178 N.C. App. at 703, 632 S.E.2d at 528 (ci tation and internal quotation marks omitted).
¶ 32 In its Opinion and Award, the Full Commission “conclude[d] that Defendants have shown that Decedent died from a heart attack but have not provided sufficient evidence that the death occurred as a result o f a non

- compensable cause. ” M uch of Defendants’ argument to the contrary is a rehash of their assertions regarding the weight of the evidence in the record. However, the “ Commission is the sole judge of the weight and credibility of the evidence , ” Blackwel l , 282 N.C. App. 24, 2022

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- 123, ¶ 5 (citation omitted) , and thus this Court will not reweigh the evidence on appeal. ¶ 33 Defendants also argue that th is case i s distinguishable from Wooten , in which this Court held that “ the Commission correctly concluded that [the] defendant s did
not rebut the [ Pickrell ] presumption of compensability ” where it was “undisputed that [the] decedent was involved in an accident,” 178 N.C. App. at 703, 632 S.E.2d at 529, and where “[t]he eviden ce fail[ed] to show whether [the] decedent had a heart attack that caused the motor vehicle accident or whether the circumstances of the accident caused [the] decedent’s heart arrhythmia[,]” id. at 70 3 , 632 S.E.2d at 528. DefendantsF RYE V
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argue that “the compete nt evidence in this case is that the heart attack precipitated [Decedent]’s loss of control of the vehicle. The only credible evidence in this case establishes that [Decedent] was already deceased at the time of the actual collision.”
¶ 34 In fact, there is competent evidence in the record to support the inference that losing control of the truck precipitated Decedent’s heart attack. In his deposition, Dr

. Hall testified that a “ stressful event ” such as losing control of a speeding truck “ could predispose one to a heart attack.” In addition, North Carolina Highway Patrol Trooper Justin Sanders, who oversaw the investigation of the accident , testified in his deposition that , based upon his measur e ments and analysis of the tire impressions made by Decedent’s truck leading up to the accident, it was his opinion that Deceden t “was operating the vehicle” and was “ applying the brake [ s ] ” on the dump truck prior to the collision. Indeed, Trooper Sanders further testified that it was “obvious that [Decedent was] trying to control [the truck] and keep it in the road.”
¶ 35 Neither the record in this case nor the binding findings of fact support Defendants’ argument that “[t]he only credible evidence in this case establishes that [Decedent] was alrea dy deceased at the time of the actual collision” or that “the heart attack precipitated [Decedent]’s loss of control of the vehicle

. ” (Emphasis added).

“ Therefore, [D] efendants have failed to meet their burden of showing that [Decedent’s heart attack] occu rred prior to and caused [his] injury by accident [ , ] ” i d. at 702, 632 S.E.2d at 528 , and Defendants’ argument must be overruled.F RYE V
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¶ 36 As we conclude that the Full Commission properly concluded that the Pickrell presumption applied in this case and Defendants have not successfully rebutted the presumption , we need not address Defendants’ final argument that the Full Commission erred by concluding, in the alternative, that Decedent’s heart attack was the result of a work

- related accident. III. Conclusion ¶ 37 For the foregoing reasons, the Opinion and Award of the Full Commission is affirmed. AFFIRMED

. Judges WOOD and GRIFFIN concur.