Larson's workers compensation desk edition

Workers’ Compensation Research Paper

WORKPLACE VIOLENCE CASE REVIEWS:

MARTIN v. J. LICHTMAN & SONS

42 N.J. 81, 199 A.2d 241 (1964)

On appeal from a judgment of the Superior Court, Appellate Division, where the following opinion was filed.

‘Martin was awarded workmen’s compensation by the Division, the County Court reversed, and Martin appeals.

Martin was having his lunch in a room in the Lichtman plant customarily used by its employees for that purpose. There were about 18 employees in the room, and Martin was seated between Bradford and Taylor. Martin interpreted a remark made by Bradford to Taylor as meaning that Bradford had a job in addition to his employment with Lichtman, and he said to Bradford ‘You got two jobs? How can you take care of both jobs?’ Bradford did not answer but went to his locker, took out a bottle of soda water, returned to his seat alongside Martin and, a minute or two later and still without saying anything, struck Martin with the bottle, causing the injuries for which Martin seeks compensation. There had been no previous words or difficulties between Bradford and Martin. There is nothing in the record to indicate that they saw each other outside of working hours.

The County Court said ‘Petitioner’s observation or inquiry brought no verbal response. There was an hiatus of some minutes, then the attack. Conceding that the assailant did take umbrage at petitioner’s query, and that a period of silent fermentation ensued which produced the attack, how can it be said that the employment had anything to do with it? Apparently, the same query, had it been made off the job, would have produced the same violent result.’

That may be true, but the fact of the matter is that it was on the job that Martin ate and talked with Bradford, and Bradford became enraged and struck him. But for the fact that Martin was on the job, he would have had no contact with Bradford and would not have been assaulted by him. As the court said in Sanders v. Jarka Corp., 1 N.J. 36, 41, 61 A.2d 641 (1948), ‘The employment * * * was the cause in the sense that, but for the employment, the accident would not have happened. * * *’

Lichtman argues that an assault is compensable if it grows out of a quarrel whose subject matter is related to the work, but not when the assault is due only to personal animosity, even though it arose out of the enforced contact of the factory. We hold that there is no longer room for such a distinction under our cases, and that ‘even if the subject of the dispute is unrelated to the work, the assault is compensable if ‘the work of the participants brought them together and created the relations and conditions which resulted in the clash.‘‘ 1 Larson, Workmen’s Compensation Law, p. 130 (1952).

In Crotty v. Driver Harris Co., 49 N.J.Super. 60, 72, 139 A.2d 126, 133 (1958), we said:

‘The ‘positional’ or ‘but-for’ test has been adopted in this jurisdiction. Sanders v. Jarka Corp., * * * 1 N.J. (36) at page 41, 61 A.2d (641) at page 643; Gargiulo v. Gargiulo, * * * 13 N.J. (8) at page 13, 97 A.2d (593) at page 595; Howard v. Harwood’s Restaurant Co., * * * 25 N.J. (72), at page 82 et seq., 135 A.2d (161) at page 166, where the doctrine is fully explored by Justice Burling. See, also, Larson ‘Legal Aspects of Causation in Workmen’s Compensation,’ 8 Rutgers L.Rev. 423, 427. As observed in the Howard cases:

‘* * * ‘But-for’ connotes a standard of reasonable probability. Thus stated, the question is whether it is more probably true than not that the injury would have occurred during the time and place of employment rather than elsewhere. * * *‘ (25 N.J. at page 83, 135 A.2d at page 166).

* * * Under the ‘but-for’ test, assaults by co-workers are compensable as long as they are not motivated by personal vengeance stemming from Contact with the employee outside of the employment. Howard v. Harwood’s Restaurant Co. * * * 25 N.J. at page 84, 135 A.2d at page 167; Larson, op. cit., s 11.16(c), 11.21, pp. 135, 136.’ (Emphasis ours.)

In Leonbruno v. Champlain Silk Mills, 229 N.Y. 470, 128 N.E. 711, 13 A.L.R. 522 (Ct.App.1920), Judge Cardozo said: ‘The claimant was injured not merely while he was in a factory but because he was in a factory, in touch with associations and conditions inseparable from factory life.’ And see Larson, supra, p. 132.

The assault upon Martin was not motivated by personal vengeance stemming from contact with Bradford outside of the employment, nor did it arise from a purely private relationship entered into by them during the course of their employment, as, for example, if they had embarked on a joint enterprise on the side and fought over it during working hours. Cf. Larson, op. cit., supra, p. 139. When friction and strain arises between employees because of the enforced contact resulting from the employment and leads to an unjustified assault, the victim’s injuries are compensable. Martin’s injuries resulted from such an assault. Crotty v. Driver Harris Co., supra; Diaz v. Newark Industrial Spraying Co., 35 N.J. 588, 591, 174 A.2d 478 (1961); Larson, op. cit., supra, ss 11.16(a)(c), 11.22. Cf. Lester v. Elliott Bros. Trucking Co., 18 N.J. 434, 114 A.2d 8 (1955).

In Hartford Accident & Indemnity Co. v. Cardillo, 72 App.D.C. 52, 112 F.2d 11, 15 (C.A.D.C.1940), cert. denied310 U.S. 649, 60 S.Ct. 1100, 84 L.Ed. 1415 (1940), cited with approval in Diaz v. Newark Industrial Spraying, Inc., supra, at 35 N.J. 591, 174 A.2d at 479, the court said:

‘The risks of injury incurred in the crowded contacts of the factory through the acts of fellow workmen are not measured by the tendency of such acts to serve the master’s business. * * *

* * * The shift (to compensability) involved recognition that the environment includes associations as well as conditions, and that associations include the faults and derelictions of human beings as well as their virtues and obediences. Men do not discard their personal qualities when they go to work. Into the job they carry their intelligence, skill, habits of care and rectitude. Just as inevitably they take along also their tendencies to carelessness and camaraderie, as well as emotional makeup. In bringing men together, work brings these qualities together, causes frictions between them, creates occasions for lapses into carelessness, and for fun-making and emotional flare-up. * * * These expressions of human nature are incidents inseparable from working together. They involve risks of injury and these risks are inherent in the working environment. * * *.’(122 F.2d at p. 15)

After reviewing the conflicting views as to the compensability of injuries arising out of on-the-job quarrels, Justice Rutledge said that he considered the better view to be the one which:

‘* * * rejects the test of immediate relevancy of the culminating incident. That is regarded, not as an isolated event, but as part and parcel of the working environment, whether related directly to the job or to something which is a by-product of the associations. This view recognizes that work places men under strains and fatigue from human and mechanical impacts, creating frictions which explode in myriads of ways, only some of which are immediately relevant to their tasks. Personal animosities are created by working together on the assembly line or in traffic * * * No worker is immune to these pressures and impacts upon temperament. They accumulate and explode over incidents trivial and important, personal and official. But the explosion point is merely the culmination of the antecedent pressures. That it is not relevant to the immediate task, involves a lapse from duty, or contains an element of volition or illegality does not disconnect it from them nor nullify their causal effect in producing its injurious consequences. Any other view would reintroduce the conceptions of contributory fault, action in the line of duty, nonaccidental character of voluntary conduct, and independent, intervening cause as applied in tort law, which it was the purpose of the statute to discard. * * *.’(112 F.2d, at pp. 16—17)

Commenting favorably upon the rule that the friction and strain of employment itself makes a resulting ‘neutral’ assault work-connected, Larson says (p. 131): ‘* * * men carry their personal qualities, weaknesses, emotions and tempers with them to work, and the risk of shattered human tempers is comparable to the risk of overtrained machinery.’ When his book was published, in 1952, Larson anticipated that New Jersey would follow the ‘friction and strain’ rule, for he said (p. 136), after quoting from Sanders v. Jarka Corporation, supra:

‘While this latter case involves a work dispute, the reasoning is significant, since any jurisdiction which accepts the but-for or positional doctrine generally would have no difficulty applying it to disputes induced by the irritations of compulsory human contact and so reaching the same result as that in the Hartford Accident case.’

And see Larson’s definition and discussion of ‘neutral’ risks, in s 7.30 of his book, cited and followed in Howard v. Harwood’s Restaurant Co., supra, 25 N.J. at p. 84, 135 A.2d 161.

Lichtman points out that in De Nardis v. Stevens Construction Co., 72 N.J.Super. 395, 178 A.2d 354 (1962), aff’d38 N.J. 300, 184 A.2d 417 (1962), we stressed the fact that De Nardis was struck with a tool supplied by the employer and that the attack was triggered by the injured workman’s statement to the attacker that he had no time to argue and had to get back to work. This, argues Lichtman, proves that our law still requires some such work-connection. We disagree. Those facts were mentioned in the De Nardis case because they existed in that case, but that does not establish that similar facts must always be present to justify compensation. As was pointed out in the Crotty case, supra, we have adopted the ‘but-for’ and ‘positional risk’ doctrines. Since then, our ‘horseplay’ cases have recognized the right not only of the victim but of the aggressor to compensation. Diaz v. Newark Industrial Spraying, Inc.. supra. We see no basis for distinguishing an angry assault, such as here, from a playful one (such as in Diaz), a murderous one (such as in Crotty), or an insane one (such as in Howard). See also McKenzie v. Brixite Mfg. Co., 34 N.J. 1, 166 A.2d 753 (1961).

For the foregoing reasons, the judgment of the County Court is reversed and the judgment of the Division is reinstated.’

Opinion

PER CURIAM.

The judgment is affirmed for the reasons expressed in the opinion of Judge Gaulkin in the Appellate Division.

For affirmance: Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR and SCHETTINO—5.

For reversal: Justices HALL and HANEMAN—2.

_____________________________________________________________________________________________

DODSON v. DUBOSE STEEL, INC.

159 N.C. App. 1, 582 S.E.2d 389 (2003)

Opinion

HUDSON, Judge.

Defendants Dubose Steel, Inc. (Dubose) and American Manufacturers Mutual appeal an opinion and award entered 18 January 2002 by the North Carolina Industrial Commission that awarded plaintiff medical expenses, death benefits and the statutory $2,000 toward burial expenses, for the injury that led to the death of her husband. For the reasons that follow, we affirm.

BACKGROUND

Plaintiff’s decedent John Dodson (Dodson), was employed by defendant Dubose as a truck driver, and was driving a load of steel to Virginia for his employer on 27 September 1999. As a result of the events at issue here, Dodson was struck by a vehicle while outside of his truck, and fell to the pavement on his head. After several days without regaining consciousness, Dodson died. His widow Shelby Dodson, the plaintiff, filed claims for workers’ compensation benefits due while Dodson was still alive, and for death benefits.

The claims were consolidated and heard 27 September 2000, and, in an opinion and award filed on 30 November 2000, Deputy Commissioner William C. Bost found and concluded that Dodson’s injury and death arose out of and in the course of his employment, and awarded benefits to plaintiff.

In an opinion and award filed 18 January 2002 by Commissioner Bernadine Ballance, the Full Commission essentially re-wrote the findings of fact and conclusions of law, but awarded the same benefits. Defendants now appeal.

ANALYSIS

A. The Standard of Review

On appeal of a worker’s compensation decision, we are “limited to reviewing whether any competent evidence supports the Commission’s findings of fact and whether the findings of fact support the Commission’s conclusions of law.” Deese v. Champion Int’l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). An appellate court reviewing a worker’s compensation claim “does not have the right to weigh the evidence and decide the issue on the basis of its weight. The court’s duty goes no further than to determine whether the record contains any evidence tending to support the finding.” Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (citation and quotation marks omitted), reh’g denied, 350 N.C. 108, 532 S.E.2d 522 (1999). In reviewing the evidence, we are required, in accordance with the Supreme Court’s mandate to construe the Workers’ Compensation Act in favor of awarding benefits, to take the evidence “in the light most favorable to plaintiff.” Id.

The Full Commission is the “sole judge of the weight and credibility of the evidence.” Deese, 352 N.C. at 116, 530 S.E.2d at 553. Furthermore,

the Commission does not have to explain its findings of fact by attempting to distinguish which evidence or witnesses it finds credible. Requiring the Commission to explain its credibility determination and allowing the Court of Appeals to review the Commission’s explanation of those credibility determinations would be inconsistent with our legal system’s tradition of not requiring the fact finder to explain why he or she believes one witness or another or believes one piece of evidence is more credible than another.

Id. at 116-17, 530 S.E.2d at 553.

B. Appellants’ Arguments

Defendants bring forward three questions presented, organized into two arguments in their brief. In the heading of Argument I, defendants refer to all but one of the nineteen assignments of error. In the body of the argument, however, defendants do not mention any specific findings by number, but argue generally that the evidence does not support that the Commission “found that [Dodson’s] injury and subsequent death arose out of his employment.” In identically worded assignments of error 1 though 12, defendants challenge findings of fact 5 through 17 as not being supported by the “competent evidence of record.” Similarly, assignments of error 13 through 18 challenge, in identical language, conclusions of law 1 through 4, 6 and 7 as not supported by the evidence and as “contrary to law.” Assignment of error 19 challenges the award. We do not believe that this argument complies with the Rules of Appellate Procedure sufficiently to bring forward challenges to any of the specific findings of fact, with the possible exceptions of numbers 11, 12 and 14 and conclusions 1, 2 and 4, which read as follows:

11. The root cause of the confrontation between Dodson and Campbell originated when Dodson, while moving with the traffic, merged into Campbell’s lane of traffic forcing Campbell out of his lane. Neither Dodson nor Campbell knew each other prior to this incident. There is no evidence that Dodson intended to force Campbell out of his lane of travel. At the time that the root cause incident occurred, Dodson was driving his truck in the ordinary course of his business for defendant-employer, Dubose Steel, Inc. which was the basic nature of his work as a truck driver. Defendants admit that at the time Dodson was struck by Campbell’s vehicle he was an employee of Dubose Steel, Inc.

12. John Dodson’s injuries and death resulted from an assault upon his person by a vehicle operated by Troy Campbell. Although there had been gestures and verbal exchanges between Campbell and Dodson(which neither of them could hear), based on the greater weight of the evidence, Dodson did not have a wilful intent to injure or kill Campbell when he exited his vehicle and walked toward the driver’s side of Campbell’s vehicle. Dodson appeared to have acted spontaneously.

* * * * * *

14. Dodson’s injury and death arose out of his employment. As a result of his injury and subsequent death, Dodson and now his estate have incurred ambulance and medical bills for treatment for the time that he lived prior to death, as well as burial expenses in excess of $2,000 ...

* * * * * *

CONCLUSIONS OF LAW

1. The injury to John Dodson occurring on September 27, 1999 and the resulting death occurring on October 4, 1999 constituted a compensable injury by accident arising out of and in the course of Dodson’s employment with Dubose Steel, Inc. N.C. Gen Stat. §§ 97-2(6); 97-38.

2. John Dodson died as a result of an assault on his person by a vehicle driven by Troy Campbell. The assault originated from an argument based on the manner in which Dodson drove his truck in the course of his employment. Hegler v. Cannon Mills, 224 N.C. 669, 31 S.E.2d 918 (1944).

* * * * * *

4. Decedent’s employment as a long distance truck driver caused him to spend the majority of his working hours traveling on highways and streets. Due to the nature of decedent’s work, the risk of driver error causing tempers to flare among strangers on the busy highways was increased. Dodson and Campbell did not know each other so the inciting incident was not due to personal reasons. “Assaults arise out of the employment either if the risk of assault is increased because of the nature or setting of the work, or if the reason for the assault was a quarrel having its origin in the work.” A truck driver’s risk of being struck by a vehicle is a risk greater than that of the general public. 1 Arthur Larson and Lex K. Larson, Larson’s Workers’ Compensation, Desk Edition, § 8 Scope (2000).

Thus, we will first discuss whether the evidence supports these findings and conclusions.

After a careful review according to the standard articulated by the Supreme Court, we conclude that evidence in the record supports the Commission’s findings 11, 12, and 14. First, Troy Campbell, the motorist who hit Dodson, testified that his vehicle and Dodson’s tractor-trailer were trying to merge into one lane of travel from the two in which they were traveling, when Dodson’s truck forced Campbell off the road, while Campbell was “laying on the horn when he [Dodson] was coming over.” At the next stoplight, according to Campbell and witnesses Scott Cash and Mark Davis, Dodson got out of his truck and started walking toward Campbell, banging his fist onto the hood of Campbell’s vehicle, at which point Campbell drove forward, striking Dodson. Several days later Dodson died from his injuries. Campbell could not hear what, if anything, Dodson said while walking toward Campbell’s vehicle, and Campbell testified that Dodson “really didn’t have any kind of facial expression.” We believe that this evidence, among much more, fully supports the above findings of fact to the effect that Dodson’s injury and death were rooted in the driving incident.

The Full Commission chose to accept certain testimony as credible, which is within its authority, even though there may be evidence from which one could draw a contrary inference. Deese, 352 N.C. at 116, 530 S.E.2d at 553. As we indicated earlier, the Full Commission is the “sole judge of the weight and credibility of the evidence” and need not explain its findings of fact to justify which evidence or witnesses it finds credible. Id. We conclude that ample evidence in the record supported the Commission’s findings of fact.

Next, we examine whether the findings of fact support the Commission’s conclusions of law. We believe that they do. Findings of fact numbers 11, 12, and 14, among others, support the Commission’s legal conclusions and award regarding the root cause of Dodson’s injury.

In their second “Question Presented,” briefed as part B of Argument I, the defendants contend that the Commission erroneously analyzed this case according to the law pertaining to workplace assaults. Defendant’s argue that the Commission’s conclusions and award are contrary to applicable law, for three reasons. They contend that (1) the assault cases do not apply; (2) the employer received no “appreciable benefit” from Dodson’s actions at the time of the injury according to the so-called Good Samaritan cases; and (3) that Dodson’s work did not place him at increased risk of the type of incident in which he was injured.

We conclude, however, that the Commission properly analyzed this case according to the assault cases, because the incident was, we believe, more closely analogous to a workplace assault than to any of the factual scenarios underpinning defendants’ proposed alternative theories. In reaching this conclusion we are guided, not only by the standard of review, but also by the clear and oft-articulated mandate of the Supreme Court that, in workers’ compensation cases, the statute is to be broadly construed in favor of awarding benefits, in view of the remedial purpose of the Act. Hoyle v. Isenhour Brick and Tile Co., 306 N.C. 248, 293 S.E.2d 196 (1982). “Since the terms of the Act should be liberally construed in favor of compensation, deficiencies in one factor are sometimes allowed to be made up by strength in the other.” Id, 306 N.C. at 252, 293 S.E.2d at 199. Although we are mindful that the Worker’s Compensation Act was not intended to provide a general insurance policy, our Courts have repeatedly held that “[t]he Workers’ Compensation Act ‘should be liberally construed to the end that benefits thereof should not be denied upon technical, narrow and strict interpretation.’ ” Dildy v. MBW Invs., Inc., 152 N.C.App. 65, 73, 566 S.E.2d 759, 765 (2002), citing Roberts v. Burlington Indus., 321 N.C. 350, 359, 364 S.E.2d 417, 423 (1988)(additional citations omitted).

In the assault cases the analysis of “arising out of” turns on whether the assault “originated in” something related to the job. In the opinion and award, the Commission cites Hegler v. Cannon Mills Co., 224 N.C. 669, 31 S.E.2d 918 (1944), as a basis for its conclusion. There, the Supreme Court upheld an award of compensation where the injury and death resulted from an assault that followed a dispute between two cotton mill workers over one’s attempt to supervise the other. The Court there pointed out:

Where men are working together at the same work disagreements may be expected to arise about the work, the manner of doing it, as to the use of tools, interference with one another, and many other details which may be trifling or unimportant. Infirmity of temper, or worse, may be expected, and occasionally blows and fighting. Where ... as a result of it one injures the other, it may be inferred that the injury arose out of the employment.

Id., 224 N.C. at 671, 31 S.E.2d at 920 (citations omitted). Plaintiff cites a number of cases in which this Court and the Supreme Court have held that an accidental injury is compensable where it results from an assault rooted in the performance of workplace duties. See Wake County Hosp. System, Inc. v. Safety Nat’l Casualty Corp., 127 N.C.App. 33, 487 S.E.2d 789, disc. review denied 347 N.C. 410, 494 S.E.2d 600 (1997) (holding that death covered by workers’ compensation where hospital social worker was abducted by hospital laundry worker, who took her to another location where he raped and murdered her, where record does not reflect whether decedent knew assailant.); Pittman v. Twin City Laundry & Cleaners, 61 N.C.App. 468, 300 S.E.2d 899 (1983) (upholding award of compensation where decedent was shot after an argument over whether another worker had been fired or not.)

We believe that the findings of the Commission support the conclusion that Dodson’s injury and death originated in the traffic merging incident, which was clearly a dispute about Dodson’s driving. Since Dodson’s work primarily consisted of driving, and his workplace comprised public roads and highways, including the one upon which he was driving at the time of the merging incident, the findings also support the conclusion that the “assault upon Dodson [by Campbell’s vehicle] was rooted in and grew out of his employment,” and occurred in his workplace. This case is not similar to those in which a worker has been assaulted because of a personal relationship, unconnected to the employment. See Hemric v. Reed and Prince Mfg. Co., 54 N.C.App. 314, 283 S.E.2d 436 (1981), disc. review denied, 304 N.C. 726, 288 S.E.2d 806 (1982) (employee was shot during assault on co-worker by violent boyfriend); Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972) (employee was assaulted at workplace by estranged husband); Dildy, 152 N.C.App. 65, 566 S.E.2d 759 (2002) (employee was assaulted at work by violent boyfriend.) Here the Commission has found as fact that the dispute had as its “root cause” the merging incident, which was related to driving and to “the basic nature of his work as a truck driver.” Thus, according to the applicable case law, the Commission properly concluded that Dodson’s injury and death resulted from an injury by accident arising out of and in the course of his employment.

Defendants argue that the Commission and the Court should analyze this case according to the cases in which an employee on a business trip interrupts his work to engage in personal conduct unrelated to the employer’s business, such as the Good Samaritan cases, and that we should employ an “appreciable benefits” or “increased risk” test. See Roman v. Southland Transp., 350 N.C. 549, 515 S.E.2d 214 (1999); Roberts v. Burlington Indus., 321 N.C. 350, 364 S.E.2d 417 (1988). Because we have held that the evidence supports the Commission’s findings, which in turn support its conclusions to the effect that Dodson’s injury and death resulted from a dispute related to his business of driving, we do not believe that these cases apply. In so concluding, we again refer to the standard of review, according to which we are bound by the findings and conclusions of the Commission if there is any evidence to support them.

In Roberts, the employee was injured while on a business trip, during a stop to render aid to a third party. The Supreme Court affirmed the denial of benefits, holding that the employer received no “appreciable benefits” from the employee’s stop. Here, however, the Commission found and concluded that at the time the “root cause” incident began, Dodson “was driving his truck in the course of his business for defendant-employer.” Thus, we do not believe that either the “appreciable benefits” or “increased risk” analysis-applicable to cases in which the employee was not engaged in the employer’s business, such as Roberts-applies here. In addition, although the Court in Roman also affirmed the denial of benefits where the decedent was shot while pursuing a robber, it did so in a three-to-three opinion, in which the Court noted that “the decision of the Court of Appeals is affirmed without precedential value.” As such, we decline to treat Roman as authority.

In Argument II (Question presented 3), defendants contend that the plaintiff is barred from any compensation because Dodson’s injury and death resulted from his wilful intention to injure Campbell. However, the Commission accepted as credible the evidence discussed above, and made findings of fact, including finding 12 quoted above, which support its conclusion number 3, that defendant failed to prove “by the greater weight of the evidence that [Dodson’s] injury and death resulted from [Dodson’s] wilful intention to injure or kill himself or another.” Because these findings and conclusion are supported by the evidence even though there may have been evidence to the contrary, we reject this argument.

CONCLUSION

In sum, we hold that the evidence supports the findings of fact, which in turn support the conclusions of law of the Commission. Since the Commission properly analyzed this case as an assault in the workplace, its conclusions are consistent with the applicable law. For the reasons set forth above, we affirm the opinion and award of the Industrial Commission.

Affirmed.

Judge McGEE concurs.

Judge STEELMAN dissents in part, concurs in part.

STEELMAN, Judge, dissenting in part and concurring in part.

I respectfully dissent from the majority’s decision affirming the portion of the Commission’s Opinion and Award concluding Dodson’s injury and death arose out of and in the course of his employment and awarding death benefits to plaintiff. Although I concur with the majority’s conclusion that Dubose’s argument under N.C. Gen.Stat. § 97-12(3) (2001) must fail, I do so on different grounds. The facts in this case are not in dispute; however, I recite additional facts to clarify and support my decision on this matter.

On 27 September 1999, John Dodson (“Dodson”) was transporting a load of steel to Virginia for his employer, defendant Dubose Steel, Inc. (“Dubose”). While Dodson was driving in the right lane of a divided highway having two lanes of traffic in each direction, Troy Campbell (“Campbell”) was driving in the same direction in the left lane. The two drivers encountered a disabled recreational vehicle partially blocking the right lane and causing the two lanes of traffic to merge left into a single lane. Dodson moved his truck into the left lane and forced Campbell into a left-turn lane as Campbell blew his horn several times. Dodson returned to the right lane after passing the disabled vehicle.

Campbell pulled up beside Dodson’s truck, looked over at him, motioned back and said “you almost hit me back there.” Campbell made gestures toward Dodson, who responded by shaking his finger at Campbell. Campbell then moved forward in the left lane to where the vehicles ahead of him were stopped at the traffic signal. While the two vehicles were stopped for the traffic signal, Dodson got out of his truck and walked around the front of Campbell’s vehicle, striking the hood with his fist and signaling Campbell to get out of his vehicle. Campbell and other witnesses were under the impression that Dodson was angry as he approached Campbell’s vehicle.

When Dodson reached the left front headlight of Campbell’s vehicle, Campbell turned the wheels to the left and accelerated in an attempt to move into the left-turn lane. Campbell’s vehicle struck Dodson, causing him to fall and to suffer significant head injuries which ultimately resulted in his death on 4 October 1999.

On 25 October 1999, defendant American Manufacturers Mutual Insurance (“American Mutual”) denied the workers’ compensation claim filed by plaintiff, finding that “there was no causal relationship of the employee’s injuries to his employment.” Plaintiff requested a hearing before the North Carolina Industrial Commission regarding the denial of the workers’ compensation claim to determine whether Dodson was acting in the course and scope of employment at the time of his injury.

On 30 November 2000, the Deputy Commissioner filed an Opinion and Award concluding that Dodson’s death arose out of and in the course of his employment and ordering defendants to pay death benefits to plaintiff. Both Dubose and American Mutual appealed the Deputy Commissioner’s Opinion and Award.

On 18 January 2002, the Full Commission (“Commission”) affirmed the Deputy Commissioner’s Opinion and Award. The Commission found facts as detailed above and made additional findings of fact and conclusions of law as set out in the majority opinion. Dubose appealed the Commission’s Opinion and Award. American Mutual did not participate in this appeal.

The issue presented in Dubose’s appeal to this Court is whether the death of an employee who was engaged in an act of “road rage” at the time of his injury resulting in his death suffered an injury compensable under N.C. Gen.Stat. Chapter 97. In the event that there are procedural inadequacies in Dubose’s appeal, I would exercise this Court’s authority under N.C.R.App. P. 2 (2003) to suspend the rules and address Dubose’s arguments in their entirety.

I.

Dubose first contends the Commission erred in awarding death benefits to plaintiff because the event causing Dodson’s injury and resulting death did not arise out of and in the course of his employment with Dubose.

Whether an employee’s injury arises out of and in the course of his employment is a mixed question of law and fact. Hoyle v. Isenhour Brick & Tile Co., 306 N.C. 248, 293 S.E.2d 196 (1982). This Court’s review of the Commission’s Opinion and Award is limited to whether its factual findings are supported by any competent evidence and whether its conclusions are adequately supported by its findings. Allen v. Roberts Elec. Contractors, 143 N.C.App. 55, 546 S.E.2d 133 (2001). If the findings of fact compel a conclusion opposite of that reached by the Commission, it is the duty of this Court to reverse the Commission. Warren v. City of Wilmington, 43 N.C.App. 748, 259 S.E.2d 786 (1979).

A. Background Law

The North Carolina Workers’ Compensation Act, N.C. Gen.Stat. § 97-1, et seq. (hereinafter “the Act”), defines a compensable, accidental injury under the Act as one “arising out of and in the course of employment....” N.C. Gen.Stat. § 97-2(6) (2001). The phrase “arising out of” relates to the origin of the accident and generally requires a causal connection between the nature of the employment and the injury. Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972). “In the course of employment” refers to the time, place and circumstances giving rise to the injury. Pittman v. Twin City Laundry & Cleaners, 61 N.C.App. 468, 300 S.E.2d 899 (1983). Although these elements are interrelated, the claimant has the burden of establishing both to receive compensation. Pickrell v. Motor Convoy, Inc., 322 N.C. 363, 368 S.E.2d 582 (1988); Hoyle, 306 N.C. at 251, 293 S.E.2d at 198.

B. Arising Out of the Employment

There are two lines of North Carolina cases decided under N.C. Gen.Stat. § 97-2(6) which potentially are controlling in our determination as to whether Dodson’s injuries arose out of his employment. The first line of cases, relied upon by the majority and the Commission, deals with injuries caused by assaults occurring in the workplace or assaults by co-workers. The second line of cases, relied upon by Dubose, addresses injuries to employees occurring when the employee interrupts his business for his employer to engage in personal conduct unrelated to his employer’s business.

1. Assaults in the Workplace

The Commission expressly relied on one of the workplace cases, Hegler v. Cannon Mills Co., 224 N.C. 669, 31 S.E.2d 918 (1944), in finding that Dodson’s injuries and death were “rooted in” his employment. In Hegler, tensions between two co-workers, Hegler and Smith, developed over the course of a year and culminated in Hegler’s complaint to his employer about the quality of Smith’s work. Id. at 670, 31 S.E.2d at 919. Two days after the complaint, Smith assaulted and killed Hegler at their workplace. Id.

Our Supreme Court found that the tension between the two co-workers “had its origin in the employment.” Id. at 671, 31 S.E.2d at 919. The Hegler Court also found that the assault was “directly connected with” and “was rooted in and grew out of the employment.” Id. at 670-71, 31 S.E.2d at 919. Hegler affirmed the Commission’s findings and conclusions that the death had occurred in the course of and arose out of the employment. Id.

This Court reached a similar conclusion in Pittman v. Twin City Laundry, 61 N.C.App. 468, 300 S.E.2d 899 (1983). In Pittman, a quarrel between two employees of the laundry service ended in one employee shooting and killing the other at the workplace. Id. at 470, 300 S.E.2d at 901. This Court held that the death “had its origin in a risk connected with [Pittman’s] employment and that his death was in direct consequence of that risk.” Id. at 474, 300 S.E.2d at 903. Thus, the Pittman Court, citing Hegler, found the shooting was causally connected to and arose out of the decedent’s employment. Id.

Pittman expressly distinguished those cases where the claimant is injured at the workplace by a non-employee assailant who committed the assaults for reasons unrelated to the employer’s business. In such cases, our courts have held “that an injury is not compensable when it is inflicted in an assault upon an employee by an outsider as a result of a personal relationship between them, and the attack was not created by and not reasonably related to the employment.” Hemric v. Reed and Prince Manufacturing Co., 54 N.C.App. 314, 318, 283 S.E.2d 436, 438-39 (1981); see also, Gallimore v. Marilyn’s Shoes, 292 N.C. 399, 233 S.E.2d 529 (1977) (holding that the employee’s death did not arise out of her employment where there was no evidence that the assault was motivated by her employment or that her employment affected her risk of being assaulted); Robbins, supra, (holding that the assault and killing of an employee at her workplace did not arise out of her employment since the risk of assault by her estranged husband was personal and not incidental to her employment); Dildy v. MBW Invs., Inc., 152 N.C.App. 65, 566 S.E.2d 759 (2002) (holding that claimant’s injury at the store where she worked did not arise out of her employment because the risk that her boyfriend would carry out previous threats was based in a personal relationship independent of her employment).

In the present case, the incident giving rise to Dodson’s injury and death was not an assault by a co-worker occurring at the workplace. Therefore, I would hold that this case is not controlled by the decisions concerning assaults in the workplace or assaults by co-workers.