“It is difficult to refute Becquerel’s assumption in North Carolina,” said Barbara Rourke, an attorney in Winston-Salem, who represented Carolina Mutual Insurance on the appeal.
Rourke was referring to the 1988 North Carolina Supreme Court decision, Becquerel v. Motor Convoy Inc., in which the court established the rule that if death occurred on the job, the worker’s death is compensable in most circumstances.
This week, in Frey v. Hammrock and Carolina Mutual, the North Carolina Court of Appeals relied on Becquerel and found that the employer/carrier must pay the maximum amount allowed by the state’s workers account law: 500 weeks of death benefits for the family of deceased dump truck driver Tony Fry , plus $10,000 in funeral expenses and payment of some medical bills incurred at the scene. North Carolina law allows two-thirds of a worker’s average weekly wage to go to dependents, up to a maximum of $1,184.
“We were hoping for a different outcome, but we will abide by the decision of the Court of Appeals,” Roark said Thursday.
The insurance company’s expert, Dr Brent Hall, performed an autopsy after the accident and concluded that the cause of death was heart disease, which is not usually a compensable condition for the truck driver. But the state Industrial Commission and the Court of Appeals said the evidence indicated that losing control of the asphalt-packed truck on a steep mountain curve led to Frey’s heart attack.
In his testimony, Dr. Hall testified that a “stressful event” such as losing control of a speeding truck “could prepare one for a heart attack,” states the September 20 court opinion, written by Judge Valerie Zachary.
The court noted that Becquerel’s assumption could apply, whether the medical cause was known or unknown.
The tragedy occurred in 2017. The court said Frey, 55, was driving a dump truck on Highway 226 in western North Carolina, a road notorious for accidents. News reports in recent years show multiple accidents along the road. Frye’s truck crossed into the other lane and collided with an oncoming vehicle, killing one of the passengers in the vehicle.
A State Bureau of Investigation special agent happened to see Frey take off from the mountain and testified that he looked sober with a cigarette in hand. Thick smoke was billowing from the rear brake, indicating that at that moment, Frye hadn’t had a heart attack and was trying to slow the truck. A police officer also testified that tire tracks at the scene showed Frey was trying to control the truck and was using the brakes.
An emergency worker and a medical examiner said the truck landed on its side and stuck the top of the driver’s cab onto the steering wheel, leaving him with major trauma to his head and back. The death certificate indicated that the direct cause of death was trauma caused by the collision.
Despite this, the insurance company argued, Dr. Hall’s autopsy request refuted the assumption. The carrier also noted that case law has some nuances. First, Becquerel’s decision states that the assumption applies when a worker is “found dead” by his colleagues. It is not clear the exact moment of Frey’s death. Carolina Mutual explained in court filings that emergency crews worked for more than 20 minutes to free him of the wreckage, and it wasn’t co-workers who found him.
The appeals court said the insurance company was interpreting Becquerel too narrowly on this point.
The court also clarified, yes, a 2006 state Supreme Court ruling that the plaintiff had no right to presume Becquerel because the worker died of a brain hemorrhage, a noncompensable condition. But a heart attack is different, especially if the cardiac arrest was caused by an accident or “unusual exertion or extreme circumstances,” such as Tony Fry being exposed inside the getaway truck, the court said.
Neither the record in this case nor the binding findings of the facts support the defendants’ argument that “the only credible evidence in this case proves that [decedent] He had already died at the time of the actual collision” or had the heart attack precipitated [decedent]”Loss of control of the vehicle,” Frye’s opinion noted. Therefore, the defendants failed to bear the burden of proving it [decedent’s heart attack] occurred before and caused [his] Injury by accident.
Rourke said that at this time Carolina Mutual has no plans to appeal.
North Carolina Auto Personal Auto
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