McDonald v. City of Winston-Salem

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA25-582

Filed 4 March 2026

North Carolina Industrial Commission, I.C. No. 22-707155

CHERYL MCDONALD, Widow, and LOGAN MCDONALD, Minor Child (By and

Through His Guardian ad Litem, HEATHER LOWE) of MICHAEL MCDONALD,

Deceased Employee, Plaintiffs,

v.

CITY OF WINSTON-SALEM, Employer, Self-Insured, Defendant.

Appeal by Plaintiffs from opinion and award entered 31 January 2025 by the

Full Commission in the North Carolina Industrial Commission. Heard in the Court

of Appeals 18 November 2025.

Daggett Shuler, by Benjamin P. Winikoff, for Plaintiffs-Appellants.

Orbock Ruark & Dillard, PC, by Barbara E. Ruark and Tyler Younts, for

Defendant-Appellee.

COLLINS, Judge.

Plaintiffs Cheryl McDonald and Logan McDonald, through his guardian ad

litem, appeal from an opinion and award entered by the North Carolina Industrial

Commission that denied Plaintiffs’ claim for death benefits.1 Plaintiffs argue that

the Full Commission erred in numerous ways, including by failing to address

Plaintiffs’ injury-by-accident claim and certain evidentiary issues listed on Plaintiffs’

1 The case caption has been amended to remove the double use of the word employer.

MCDONALD V. CITY OF WINSTON-SALEM

Opinion of the Court

Form 44 Application for Review. After careful review, we vacate and remand the

opinion and award to the Full Commission.

I. Background

Decedent Michael McDonald was employed by the City of Winston-Salem

Police Department from 1996 until his death on 22 October 2021, from complications

of COVID-19 (“Covid”). At the time of his death, he was married to Cheryl McDonald

and was the father of Logan McDonald, a minor child with whom he shared custody

with Heather Lowe. Decedent served as a sergeant supervising the Department’s

DWI Task Force, a multi-agency unit focused on impaired driving enforcement. His

duties included conducting routine traffic stops, administering sobriety tests,

investigating incidents, making arrests, booking suspects into jail, and responding to

emergency 911 calls.

In the month before his death, September 2021, Decedent worked at least

seventeen ten-hour shifts on the DWI Task Force and conducted numerous traffic

stops, arrests, and alcohol sensor tests. Decedent’s body camera footage shows that

he typically wore a mask in city buildings and when transporting suspects in his

patrol vehicle; the footage also shows that Decedent frequently did not wear a mask

during traffic stops when in close proximity to and speaking with members of the

public who were also frequently unmasked. During the month of September 2021,

Decedent’s work included extensive traffic activity and public interaction, including

more than fifty vehicle stops, eight alcohol sensor tests and full field sobriety tests,

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Opinion of the Court

six arrests, and participation in an accident investigation.

From 1 October 2021 through 5 October 2021, Decedent was assigned to

operate the mobile command vehicle (“MCV”) at the 2021 Carolina Classic Fair, a

large public event organized by the City of Winston-Salem and held for the first time

since the onset of the Covid pandemic. Some city leaders, along with the Chief of

Police, objected to holding the Fair because of the stress that Covid placed on the

Department, but the majority of city leaders voted to hold the Fair and to increase

police officer pay for those officers working the Fair. Working at the Fair was not a

typical duty for the DWI Task Force, and Decedent had not worked in the MCV before

the Fair in 2021. On 1 October 2021, Decedent was assigned as the manager and

communications operator in the MCV for the first time because of staffing shortages.

The MCV housed up to ten officers at a time, many of whom were often unmasked

inside the MCV while eating and talking.

Prior to and during the Fair, Decedent interacted with several colleagues.

Lieutenant Hamilton met with Decedent in his office while unmasked a few days

before the Fair and then again inside the MCV on 1 and 2 October 2021; Lieutenant

Hamilton began experiencing Covid symptoms on 3 October and tested positive for

Covid on 4 October. That same day, another officer2 reported testing positive for

Covid with symptoms starting on 3 October. On 5 October, Officer Saintsing met

2 The identity of the officer was known to Defendant but is redacted from the exhibits.

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Opinion of the Court

with Decedent and Captain Doby inside the MCV for approximately thirty minutes,

during which none wore masks. Decedent reported a headache that evening to Officer

Saintsing and tested positive for Covid on 6 October. Decedent texted Lieutenant

Hamilton that he had tested positive for Covid and that “the fair is not a safe place”;

Lieutenant Hamilton agreed. Decedent emailed the Department, detailing his work

at the Fair since 1 October, stating that his cough started on 3 October and his fever

on 6 October, and noting close proximity to another officer who tested positive for

Covid. That same evening, he texted a friend that he “got the Rona from working the

fair.” On 14 October, a city employee confirmed Decedent’s absence from work would

be coded as “Q” time because Decedent “was exposed at work” to Covid.

Over the course of September 2021 and the first ten days of October 2021,

fifteen officers tested positive for Covid. The Chief of Police testified that seven of the

officers who tested positive in the first ten days of October 2021 worked at the Fair,

and Lieutenant Hamilton testified that at least two other officers who contracted

Covid worked at the Fair. Officer King testified that officers generally discussed the

rising number of sick officers working the Fair.

In his personal time, Decedent lived full-time with his wife and parents, and

his son, Logan, lived with him part-time during the week; Logan lived with his

mother, Heather Lowe, for the remainder of the week. Decedent and his family

generally avoided large gatherings and consistently wore masks in public, but he

attended one public funeral on 2 October 2021 where Covid precautions were in effect;

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Opinion of the Court

Decedent did not sit with the general public at the funeral but instead sat with fellow

officers and then sat alone at a lunch following the funeral. None of the funeral’s

attendees were known to test positive for Covid. Decedent’s wife, son, and parents

tested negative for Covid in October 2021, and Heather Lowe and her husband also

tested negative for Covid in September and October 2021. Credit card statements

from Decedent and his wife’s accounts show transactions at approximately twenty

businesses in the three weeks leading up to his Covid illness, including at least one

restaurant visit. Other than the restaurant visit, there was no evidence presented as

to whether Decedent visited the businesses in person or what he did or purchased at

the businesses.

After testing positive for Covid, Decedent’s condition deteriorated; he was

hospitalized on 18 October, placed on a ventilator on 21 October, and died on 22

October 2021 from cardiac arrest and respiratory failure caused by Covid pneumonia.

On 4 February 2022, Plaintiffs Cheryl McDonald and Logan McDonald,

through his guardian ad litem, filed a Form 18 with the North Carolina Industrial

Commission, alleging that Decedent’s death was compensable under the Workers’

Compensation Act as either an occupational disease or an injury by accident.

Defendant City of Winston-Salem denied the claim on 18 February 2022. During the

course of proceedings before the Commission, Plaintiffs filed multiple motions to

compel discovery, specifically seeking information regarding the identities of the

officers who had contracted Covid during the months of September and October 2021.

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MCDONALD V. CITY OF WINSTON-SALEM

Opinion of the Court

A deputy commissioner granted in part and denied in part Plaintiffs’ first motion to

compel, ordering Defendant to produce any logs or lists of reported Covid cases in

officers within the Department and ordering Defendant to redact all names and

personal identifying information.

Defendant then filed a motion to reconsider the deputy commissioner’s order,

arguing in part that Defendant “has no way to track close contact of a positive Covid

individual with [Decedent].” The deputy commissioner issued an amended order,

allowing Defendant’s motion to reconsider and stating that “Defendant is entitled to

rely upon the information provided to the Medical Department” and “is not required

to question all City employees . . . regarding their health or positive Covid status[.]”

The order further provided that Defendant was “not required to disclose interviews,

notes, reports, or statements taken or prepared by counsel for Defendant” that

pertained to Decedent’s death. Plaintiffs filed a second motion to compel and,

alternatively, a motion for sanctions for spoliation; the deputy commissioner denied

Plaintiffs’ second motion to compel and motion for sanctions for spoliation.

Plaintiffs presented testimony from Dr. Blair Brown, Decedent’s treating

physician, and Dr. Julie Swann, an expert in industrial engineering and public

health. Both opined that Decedent’s employment placed him at greater risk of

contracting Covid than the general public, and that his illness was more likely than

not work related. Defendant presented testimony from Dr. Steven Koehler, a forensic

epidemiologist, and Dr. Allan Morrison, an infectious disease physician and

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MCDONALD V. CITY OF WINSTON-SALEM

Opinion of the Court

epidemiologist. Both testified that Covid was widespread in the community by

October 2021, that Decedent’s risk of exposure was no greater at work than

elsewhere, and that his symptoms beginning 3 October 2021 were inconsistent with

exposure at the Fair. They concluded that the source of his infection could not be

determined and was not shown to be occupational.

On 23 January 2024, the deputy commissioner issued an opinion and award

denying Plaintiffs’ claim for death benefits. Plaintiffs appealed to the Full

Commission and filed a Form 44 Application for Review, listing numerous alleged

errors for the Full Commission’s review, including that the deputy commissioner

erred by not finding that Decedent’s death from Covid was a compensable injury by

accident and by making certain evidentiary errors. During the pendency of the

appeal, Plaintiffs filed a motion to supplement the record and for judicial notice,

which the Full Commission granted in part and denied in part. On 31 January 2025,

the Full Commission entered its opinion and award denying Plaintiffs’ claim for death

benefits. Plaintiffs timely filed a notice of appeal to this Court.

II. Discussion

Plaintiffs first argue that the Full Commission erred by failing to address

Plaintiffs’ injury-by-accident claim and numerous evidentiary issues listed on their

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Opinion of the Court

Form 44 Application for Review.3

N.C. Gen. Stat. § 97-85 provides for the Full Commission’s review of a deputy

commissioner’s opinion and award. When a matter is appealed to the Full

Commission pursuant to this statute, “it is the duty and responsibility of the [F]ull

Commission to decide all of the matters in controversy between the parties.” Vieregge

v. N.C. State Univ., 105 N.C. App. 633, 638 (1992) (citation omitted). Accordingly,

the Full Commission must “respond to the questions directly raised” on appellant’s

Form 44 Application for Review. Id. at 639.

Furthermore, the Full Commission must make “detailed findings of fact and

conclusions of law with respect to every aspect of the case before it.” Joyner v. Rocky

Mount Mills, 92 N.C. App. 478, 482 (1988). The findings of fact “must be sufficiently

positive and specific to enable the court on appeal to determine whether they are

supported by the evidence and whether the law has been properly applied to them.”

Thomason v. Red Bird Cab Co., 235 N.C. 602, 605-06 (1952). “It is likewise plain that

th[is] [C]ourt cannot decide whether the conclusions of law and the decision of the

[Full] [C]ommission rightly recognize and effectively enforce the rights of the parties

. . . if the [Full] [C]ommission fails to make specific findings as to each material fact

upon which those rights depend.” Id. at 606.

3 Plaintiffs’ issue 1 (“The Industrial Commission erred by making no findings of fact or

conclusions of law on crucial facts necessary to determine the plaintiffs’ right to compensation.”) and

issue 2 (“The Industrial Commission erred by denying plaintiffs’ motions to compel and, alternatively,

for sanctions.”) are intertwined, and we review them together in our Sections A and B.

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MCDONALD V. CITY OF WINSTON-SALEM

Opinion of the Court

Where the Full Commission fails to address all the issues specifically raised on

the appellant’s Form 44 and fails to make sufficient findings of fact and conclusions

of law, the matter must be vacated and remanded for further review. Vieregge, 105

N.C. App. at 641-42; see Lewis v. N.C. Dep’t of Corr., 138 N.C. App. 526, 529 (2000).

A. Injury by accident

Here, Plaintiffs raised the claim that Decedent’s death was the result of an

“injury by accident” on their Form 18 and during oral argument, and they alleged the

deputy’s commissioner’s denial of that claim was error on their Form 44. The Full

Commission failed to address Plaintiffs’ claim of injury by accident. The Full

Commission found that “[Plaintiffs] filed a claim for compensation and death benefits

under the North Carolina Workers’ Compensation Act. The claim was denied, and

scheduled for hearing for an opinion as to whether Decedent’s contraction of

COVID-19 was a compensable occupational disease.” This finding fails to

acknowledge Plaintiffs’ claims for both an occupational disease and an injury by

accident, and it fails to acknowledge that the deputy commissioner denied the

injury-by-accident claim. Additionally, this finding contradicts the Full

Commission’s Stipulation 8, which states that Plaintiffs’ Form 18 claimed both

occupational disease and injury by accident.

Because the Full Commission failed to address Plaintiffs’ injury-by-accident

claim raised on their Form 44, the Full Commission violated N.C. Gen. Stat. § 97-85.

See Vieregge, 105 N.C. App. at 641-42.

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MCDONALD V. CITY OF WINSTON-SALEM

Opinion of the Court

B. Evidentiary appeals

Plaintiffs further argue that the Full Commission failed to address evidentiary

issues five through twelve raised on their Form 44.

1. Issue 5

Issue 5 on Plaintiffs’ Form 44 states:

The Deputy Commissioner erred in denying plaintiffs’

Motion to Compel dated February 10, 2023 and permitting

defendant to not obtain information that shows the identity

of the other officers who contracted COVID at the fair. (Ex

2564). Defendants are only entitled to refuse the

production of relevant employment records if those records

are privileged. 11 NCAC 23A .0605; Willis v. Duke Power,

291 N.C. 19, 34, 229 S.E.2d 191, 200 (1976). No such

privilege exists for the records sought in this case, and if it

did, the records could have been produced pursuant to a

protective order. The identities of other police officers who

had COVID at the same time as Sgt. McDonald are

relevant to this case.

Issue 5 pertains to Plaintiffs’ first motion to compel, which the Full

Commission failed to address in its opinion and award. The Full Commission made

no findings of fact or conclusions of law as to the first motion to compel–specifically,

whether the records containing the identities of the officers who contracted Covid at

the Fair were privileged and whether the records could have been produced pursuant

to a protective order. Because the Full Commission failed to address Plaintiffs’ Issue

5, the Full Commission violated N.C. Gen. Stat. § 97-85. See Vieregge, 105 N.C. App.

at 641-42.

2. Issue 6

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MCDONALD V. CITY OF WINSTON-SALEM

Opinion of the Court

Issue 6 on Plaintiffs’ Form 44 states:

The Deputy Commissioner erred in granting Defendant’s

motion for reconsideration dated February 27, 2023 (Ex

2619, 2628) and permitting defendant to not obtain

information that shows the identity of the other officers

who contracted COVID at the fair. (Ex 2564). Defendants

are only entitled to refuse the production of relevant

employment records if those records are privileged. 11

NCAC 23A .0605; Willis v. Duke Power, 291 N.C. 19, 34,

229 S.E.2d 191, 200 (1976)[.] No such privilege exists for

the records sought in this case, and if it did, the records

could have been produced pursuant to a protective order.

The identities of other police officers who had COVID at

the same time as Sgt. McDonald are relevant to this case.

The Full Commission failed to address whether the deputy commissioner erred

by granting Defendant’s motion for reconsideration and permitting Defendant to

withhold records containing the identities of the officers who contracted Covid at the

Fair. Because the Full Commission failed to address Plaintiffs’ Issue 6, the Full

Commission violated N.C. Gen. Stat. § 97-85. See Vieregge, 105 N.C. App. at 641-42.

3. Issue 7

Issue 7 on Plaintiffs’ Form 44 states:

The Deputy Commissioner erred in denying Plaintiffs

motion for judicial notice of statistical evidence dated April

5, 2023. (Ex 104). See Lea Co v. N.C. Bd. of Transp., 304

N.C. 603, 615, 304 S.E.2d 164, 173-174 (1983) (citing

statistical evidence to distinguish between “Acts of God”

and “reasonably foreseeable events”); Hutchens v. Hankins,

63 N.C. App. 1, 24, 303 S.E.2d 584, 598 (1983) (“[t]his

reasonable foreseeability of harm is evidenced by the

statistics of auto accidents and carnage on our highways”)

. . . . The mortality statistics and the public laws referenced

in the motion are data showing increased risk for law

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MCDONALD V. CITY OF WINSTON-SALEM

Opinion of the Court

enforcement.

The Full Commission addressed Plaintiffs’ motion for judicial notice,

Defendant’s response, and the deputy commissioner’s order denying Plaintiffs’

motion at length in the “evidentiary rulings” section of the opinion and award.

Further, the Full Commission’s finding of fact 34 states, “At Plaintiffs’ request, the

Commission takes judicial notice that the Officer Down Memorial website states that

in the United States there were 697 line-of-duty deaths in 2021, among all law

enforcement officers and, of these 490 were caused by COVID-19[.]” The finding

further states, “[I]n North Carolina, there were 25 line-of-duty deaths in 2021, of

these 19 were caused by COVID-19. The Commission assigns the information on this

website little weight as this is not a government-maintained website and the

statistics are not common knowledge or subject to ready and accurate determination.”

Because the Full Commission addressed Plaintiffs’ Issue 7, the Full Commission did

not violate N.C. Gen. Stat. § 97-85 with respect to Issue 7.

4. Issue 8

Issue 8 on Plaintiffs’ Form 44 states: “The Deputy Commissioner erred in

prohibiting testimony on the identities of other Officers who tested positive for

COVID.”

The Full Commission did not address whether the deputy commissioner erred

by prohibiting testimony on the identities of other officers who tested positive for

Covid. Because the Full Commission failed to address Plaintiffs’ Issue 8, the Full

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MCDONALD V. CITY OF WINSTON-SALEM

Opinion of the Court

Commission violated N.C. Gen. Stat. § 97-85. See Vieregge, 105 N.C. App. at 641-42.

5. Issue 9

Issue 9 on Plaintiffs’ Form 44 states:

The Deputy Commissioner erred in denying Plaintiff’s

post-hearing motion to compel and motion for spoliation

finding. (Exhibits C-E To Plaintiff’s motion to supplement

the record). Defendants are only entitled to refuse the

production of relevant employment records if those records

are privileged. 11 NCAC 23A .0605; Willis v. Duke Power,

291 N.C. 19, 34, 229 S.E.2d 191, 200 (1976). No such

privilege exists for the records sought in this case. The

defendant had this information and lost it despite having

knowledge that Sgt. McDonald’s family was pursuing a

death claim. Plaintiffs met their burden in showing that

the opposing party had notice of the potential for future

litigation, and that the lost evidence was relevant and

potentially supportive of the requesting party’s claim. . . .

In the “evidentiary rulings” section of the opinion and award, the Full

Commission described Plaintiffs’ post-hearing motion to compel and motion for

sanctions for spoliation and quoted portions of Defendant’s responses to the motions.

Without making findings of fact or conclusions of law, the Full Commission simply

“denie[d] Plaintiffs’ motion to compel and motion for sanctions.” As the Full

Commission failed to make findings of fact and conclusions of law to support its

disposition, Joyner, 92 N.C. App. at 482, it failed to adequately address Plaintiffs’

Issue 9, violating N.C. Gen. Stat. § 97-85. See Vieregge, 105 N.C. App. at 641-42.

6. Issue 10

Issue 10 on Plaintiffs’ Form 44 states:

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MCDONALD V. CITY OF WINSTON-SALEM

Opinion of the Court

The Deputy Commissioner erred in sustaining the

objection at the sidebar and subsequent question (T 84-85)

to prohibit witnesses from disclosing the identities of the

other officers who tested positive for COVID-19 when

under Rule 803(3) as Then Existing Mental, Emotional, or

Physical Condition.– A statement of the declarant’s then

existing state of mind, emotion, sensation, or physical

condition (such as intent, plan, motive, design, mental

feeling, pain, and bodily health) makes such statements

admissible.

The Full Commission failed to address whether the deputy commissioner erred

by sustaining Defendant’s objection at the sidebar and subsequent request to prohibit

witnesses from disclosing the identities of the officers who tested positive for Covid.

Further, the Full Commission’s opinion and award is silent on Rule 803 and whether

it applies to the prohibited testimony. Because the Full Commission failed to address

Plaintiffs’ Issue 10, the Full Commission violated N.C. Gen. Stat. § 97-85. See

Vieregge, 105 N.C. App. at 641-42.

7. Issue 11

Issue 11 on Plaintiffs’ Form 44 states:

The Deputy Commissioner erred in sustaining the

objection as to whether COVID-19 was being spread among

WSPD Officers at the Carolina Classic Fair (T 89-92) and

that other officers were out with COVID-19, under Rule

803(3) as Then Existing Mental, Emotional, or Physical

Condition.– A statement of the declarant’s then existing

state of mind, emotion, sensation, or physical condition

(such as intent, plan, motive, design, mental feeling, pain,

and bodily health). There is no requirement that an

individual present a copy of their covid test result for the

statements to be admissible.

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MCDONALD V. CITY OF WINSTON-SALEM

Opinion of the Court

The Full Commission failed to address whether the deputy commissioner erred

by sustaining Defendant’s objection to evidence concerning whether Covid was being

spread amongst officers at the Fair and whether officers were out sick before and

during the Fair. Further, the Full Commission’s opinion and award is silent on Rule

803 and whether it applies to the prohibited evidence. Because the Full Commission

failed to address Plaintiffs’ Issue 11, the Full Commission violated N.C. Gen. Stat. §

97-85. See Vieregge, 105 N.C. App. at 641-42.

8. Issue 12

Issue 12 on Plaintiffs’ Form 44 states:

The Deputy Commissioner erred in sustaining the

objection as to the identities of the other officers Lt.

Hamilton was told had COVID (T 199) when the defendant

opened the door to the testimony by asking the witnesses

if other officers, Doby or Pritchard, had tested positive for

COVID-19 (T 182). State v. Lynch, 334 N.C. 402, 412, 432

S.E.2d 349, 354 (1993) (observing that when party “opens

the door” to issue, opposing party may elicit evidence that

would otherwise be incompetent or irrelevant to “dispel

favorable inferences arising” from party’s evidence).

The Full Commission failed to address whether the deputy commissioner erred

by sustaining Defendant’s objection to testimony about the identities of the other

officers whom Lieutenant Hamilton was told had Covid. Further, the Full

Commission failed to address whether Defendant opened the door to the testimony.

Because the Full Commission failed to address Plaintiffs’ Issue 12, the Full

Commission violated N.C. Gen. Stat. § 97-85. See Vieregge, 105 N.C. App. at 641-42.

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MCDONALD V. CITY OF WINSTON-SALEM

Opinion of the Court

C. Summary

In summary, while Plaintiffs expressly challenged the denial of their

injury-by-accident claim and numerous evidentiary rulings related to discovery, the

Full Commission failed to address any of the issues raised except Plaintiffs’ Issue 7.

These omissions were not a matter of evidentiary weight; they were failures to

exercise the Full Commission’s statutory duty. Without findings and conclusions on

the injury-by-accident claim or the evidentiary issues raised on Plaintiffs’ Form 44,

this Court cannot conduct meaningful appellate review of the opinion and award.

Thomason, 235 N.C. at 606; Perry v. CKE Res., Inc., 187 N.C. App. 759, 763 (2007).

In light of this conclusion, we do not reach Plaintiffs’ remaining arguments that the

Full Commission misapprehended the law by determining that (1) Decedent’s job did

not place him at an increased risk of contracting Covid and (2) Plaintiffs did not prove

causation through circumstantial evidence, and that it erred by relying on expert

opinions based on assumptions and speculation.

III. Conclusion

For the foregoing reasons, we vacate and remand the opinion and award to the

Full Commission “for further review, findings[,] and entry of an appropriate order[.]”

Vieregge, 105 N.C. App. at 641.

VACATED AND REMANDED.

Judges ARROWOOD and HAMPSON concur.

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