Justice MEYER dissenting.

Justices WEBB and WHICHARD join in this dissenting opinion.

EXUM, Chief Justice.

This is a workers' compensation case in which the question presented is whether the Court of Appeals erred in holding that a presumption of compensability does not apply when an employee dies within the course and scope of employment and the cause of death is unknown. We hold the Court of Appeals erred and remand this case to the Court of Appeals for remand to the Industrial Commission for further proceedings consistent with our decision.

I.

The material facts shown by the evidence and found by the Commission are undisputed.

Defendant's business, located in Walkertown, involves unloading cars and vans from railroad cars and then reloading them onto tractor-trailer trucks for transportation to their ultimate destinations. Decedent Clyde Pickrell was employed by defendant as a tractor-trailer driver. His duties entailed loading cars and vans onto his tractor-trailer for transport. Before loading the new vehicles, decedent was required to check them carefully for any damage they might have sustained during their railroad transport. When checking for possible damage to the roof of a new van, decedent had to stand on the van's rear bumper and hold onto the door handles or top railing. Other drivers observed decedent practice this method of inspection.

At approximately 5:45 p.m. on 17 January 1983 decedent's fellow drivers found him lying dead behind a van which he had been assigned to load and transport. He lay on his back with his left leg extended under the van's rear bumper and his right leg bent toward the left. A small amount of blood came from his left nostril. Blood was also discovered in front of his left ear. The van's bumper, which was rounded and about eighteen inches above the ground, showed a scuff mark resembling a shoe print. An outside temperature of eighteen degrees under windy conditions made outside work uncomfortable. Decedent had reported to work at approximately 2:30 p.m. that day and was dispatched on a trip to Lowell and Charlotte. He returned from this trip at around 4 p.m. and spoke with his terminal manager. It was the last time he was seen alive. No evidence was adduced before the Commission with respect to the medical reasons for his death.

The Deputy Commissioner denied the claim brought by decedent's widow for death benefits. While the Deputy Commissioner found that the decedent sustained an accident arising out of and in the course of his employment, she denied plaintiff's claim on the grounds that "his death was not proven to be the proximate result of the accident." On appeal the Full Industrial Commission, with Commissioner Clay dissenting, concluded that the Deputy Commissioner's "ultimate decision" was correct; however, it found the evidence insufficient to raise the inference that plaintiff suffered an accident arising out of and in the course of his employment.

The Court of Appeals affirmed the Commission's decision to deny plaintiff's claim; however, it concluded the Commission erred in deciding the evidence was insufficient to raise an inference of accident arising out of decedent's employment. The court held that because plaintiff offered no evidence of the medical reason for decedent's death she "failed to sustain her burden of proving that decedent died as a proximate result of an injury by accident arising out of his employment." 82 N.C. App. at 243, 346 S.E.2d at 167-68. The court concluded that, under these circumstances, plaintiff could not rely on a presumption that decedent's death was compensable, but was required to prove that he died as a result of a work-related accident. Id.

II.

Plaintiff contends, and we agree, that the Court of Appeals erred in holding that she could not rely on a presumption of compensability when she introduced evidence that decedent died while acting within the course and scope of his employment and no evidence was adduced indicating that decedent died other than by a compensable cause.

In order for a claimant to recover workers' compensation benefits for death, he must prove that death resulted from an injury (1) by accident; (2) arising out of his employment; and (3) in the course of the employment. N.C.G.S. 97-2(6), (10) (1985). The claimant has the burden of proving each of these elements. Henry v. Leather Co., 231 N.C. 477, 479, 57 S.E.2d 760, 761 (1950). The question this case presents is what mode of proof claimant may use to meet her burden where the evidence shows decedent died in the course and scope of his employment, but 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.

The general rule is that a claimant under such circumstances may rely upon a presumption that the death resulted proximately from a work-related injury:

When an employee is found dead under circumstances indicating that death took place within the time and space limits of the employment, in the absence of any evidence of what caused the death, most courts will indulge a presumption or inference that the death arose out of the employment.

1 Larson, The Law of Workmen's Compensation 10.32 (1985). Stated another way the rule is that:

In the absence of evidence to the contrary, the presumption or inference will be indulged in that injury or death arose out of the employment where the employee is found injured at the place where his duty may have required him to be, or where the employee is found dead under circumstances indicating that death took place within the time and space limits of the employment. . . . Such presumptions are rebuttable and they disappear on the introduction of evidence to the contrary.

100 C.J.S. Workmen's Compensation 513 (1958).

Previously we have allowed claimants to rely on presumptions in meeting their burden of proof in workers' compensation cases where the evidence indicated the death occurred in the course and scope of the decedent's employment and the only question was whether it was work-related. In McGill v. Town of Lumberton, 215 N.C. 752, 3 S.E.2d 324 (1939), a town's police chief was found shot to death by his own gun in a small room with its door and windows locked. We held that plaintiff was entitled to a presumption that the police chief's death was accidental, rather than suicidal, and therefore compensable under the workers' compensation statute. In Harris v. Henry's Auto Parts, Inc., 57 N.C. App. 90, 290 S.E.2d 716, disc. rev. denied, 306 N.C. 384, 294 S.E.2d 208 (1982), the decedent was a service station attendant who was found dead on the employer's premises while he was on duty. He had been shot, and no motive for the killing was introduced. The Court of Appeals, relying on McGill, held that claimant was entitled to rely on a presumption that death arose out of decedent's employment.

It is important to note that the presumption enabled the claimants in McGill and Harris, respectively, to prove different elements of their compensation claims. Common to both cases was that death occurred during the course and scope of employment. In McGill the Court held that the presumption applied to the "accident" element of the claim, and in Harris the Court of Appeals concluded it applied to the "arising out of" element. The McGill Court permitted the claimant to use the presumption to carry her burden of proving the death occurred by accident. In Harris, the Court of Appeals permitted the claimant to use the presumption to carry his burden of proving that death "arose out of" decedent's employment.

McGill and Harris, read together, support the proposition that the presumption is really one of compensability. It may be used to help a claimant carry his burden of proving that death was caused by accident, or that it arose out of the decedent's employment, or both. In McGill, we chose to address the question of compensability by determining whether death was accidental, bypassing any inquiry as to whether it "arose out of" decedent's employment. The Harris court analyzed the question of compensability by focusing on whether death "arose out of" decedent's employment, ignoring whether it was an accident. Both cases, in effect, merged the elements of "arising out of" and "accident," and permitted the claimant to meet her burden of proof by relying on a presumption that the event causing decedent's death was work-related.

In McGill, Harris, and the instant case, the decedent died while within the course and scope of his employment, and no evidence was introduced that death was due to a non-compensable cause. The critical question here, as in McGill and Harris, is whether death was work-related. In all three cases, those in the best position to speak to this question are the employee, whom death has silenced, and the employer. Under such circumstances, a presumption of compensability is theoretically and practically justified.

The theoretical justification is similar to that for unexplained falls and other neutral harms: The occurrence of the death within the course of employment at least indicates that employment brought deceased within range of the harm, and the cause of harm being unknown, is neutral and not personal. The practical justification lies in the realization that, when the death itself has removed the only possible witness who could prove causal connection, fairness to the dependents suggests some softening of the rule requiring claimant to provide affirmative proof of each requisite element of compensability.

1 Larson, The Law of Workmen's Compensation 10.32 (1985).

The Court of Appeals distinguished McGill and Harris from the instant case on the ground that in those cases "the cause of death . . . was known." 82 N.C. App. at 242, 346 S.E.2d at 167. The court held "[t]he inference does not extend . . . to causation, and the claimant is not relieved of the requirement of proving that the event proximately resulted in the employee's death." Id. at 243, 346 S.E.2d at 167. Although the court does not define "causation," it seems to suggest that a claimant must prove the medical reason for death before becoming entitled to any presumption of compensability.

We see no reason not to apply a presumption of compensability where the evidence shows that death occurred while the decedent was within the course and scope of employment, but the medical reason for death is not adduced. In unexplained death cases where the medical reason for death is known, such as McGill and Harris, 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. A blow to the head, gunshot wound or heart attack may, or may not, be compensable, depending on the manner in which the event occurred. It is this aspect of causation which the presumption of compensability, properly understood, addresses. In cases, therefore, 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 known or unknown.

Applying such a presumption of compensability is fair because the Workers' Compensation Act should be liberally construed in order to accomplish its purpose. Employers may be in a better position than the 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. They know the decedent's duties and work assignments. Additionally, if employers deem it necessary to determine the medical reason for death, they may notify the medical examiner of the county where the body is found, N.C.G.S. 130A-383 (1986), and utilize the certificate of death which the medical examiner thereafter prepares. N.C.G.S. 130A-385(a)(b) (1986). Such reports may be received as evidence, and certified copies thereof have the same evidentiary value as the originals. N.C.G.S. 130A-392 (1986).

There is some confusion in our cases regarding the nature of the presumption of compensability in a workers' compensation case. In McGill the Court declared the presumption "is sufficient to raise a prima facie case as to accident only. Then, if employer claims death of employee is by suicide, the statute places the burden on him to go forward with proof negativing the factual inference of death by accident." McGill v. Town of Lumberton, 215 N.C. at 754, 3 S.E.2d at 326. While the presumption in McGill is called a "prima facie case," the effect which McGill gave to the presumption is that of a true presumption.

[A] prima facie case and a presumption differ sharply in their effect upon the burden of producing evidence. A prima facie case discharges the burden of the proponent, but does not shift the burden to his adversary. A presumption, however, not only discharges the proponent's burden but also throws upon the other party the burden of producing evidence that the presumed fact does not exist. If no such evidence is produced, or if the evidence proffered is insufficient for that purpose, the party against whom the presumption operates will be subject to an adverse ruling by the judge, directing the jury to find in favor of the presumed fact if the basic fact is found to have been established.

Moore v. Insurance Co., 297 N.C. 375, 381-2, 255 S.E.2d 160 163-64 (1979) (quoting 2 Stansbury's North Carolina Evidence 218 (Brandis rev. 1973)).

On the basis of our decision in McGill, we conclude the presumption of compensability in a workers' compensation case is a true presumption. Thus, in those cases where the claimant is entitled to rely on the presumption, the defendant must come forward with some evidence that death occurred as a result of a non-compensable cause; otherwise, the claimant prevails. In 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 adduced, 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.

We conclude plaintiff was entitled to rely on a presumption of compensability. The undisputed evidence indicated decedent died while acting within the course and scope of his employment. No evidence indicated decedent died other than by accident. Under these circumstances plaintiff may rely on a presumption that decedent's death occurred by a work-related cause, thereby making the death compensable. The decision by the Court of Appeals to the contrary is reversed and the case is remanded to the Court of Appeals for remand to the Industrial Commission for further proceedings consistent with this opinion.

Reversed and remanded.