Appeals Court tackles COVID, CON, public records, slander
The North Carolina Court of Appeals issued decisions Wednesday reviving a COVID-related death benefits claim from the family of a former Winston-Salem police officer, rejecting a western North Carolina certificate-of-need complaint, granting part of Matthews’ request in a public records dispute with a Charlotte television station, and rejecting a Charlotte-Mecklenburg police spokesperson’s slander suit.
COVID death benefits
In McDonald v. City of Winston-Salem, a unanimous Appeals Court panel threw out a 2025 decision from the North Carolina Industrial Commission against the family of former Winston-Salem police officer Michael McDonald.
McDonald died in 2021 after 25 years with the city police. He served as a sergeant supervising the department’s DWI task force. The job required “numerous traffic stops, arrests, and alcohol sensor tests.” He worked at a “large public event” in October 2021 called the Carolina Classic Fair that had prompted objections from the police chief and some city leaders. They cited the potential negative impact of holding the event “because of the stress that Covid placed on the Department.”
When McDonald contracted COVID and died from cardiac arrest and respiratory failure that same month, his widow and son sought workers compensation death benefits. They argued that his death merited compensation “as either an occupational disease or an injury by accident,” Judge Allegra Collins wrote for the Appeals Court.
The Industrial Commission rejected the arguments. Appellate judges wrote that the commission failed to follow the proper process.
“[W]hile 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,” Collins wrote. “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.”
The Appeals Court sent the case back to the Industrial Commission for “further review, findings,” and a new order.
CON dispute
The Appeals Court rejected AdventHealth Hendersonville’s challenge of North Carolina regulators’ decision to award competitor Mission Health a certificate of need for a new free-standing emergency department in Candler.
Health care providers need a CON to open new medical facilities in North Carolina.
Appellate judges ruled in 2024 that regulators had failed to follow proper procedures when they held no public hearing before issuing the Candler emergency department CON to Mission. But the Appeals Court also determined that the error did not necessarily amount to substantial prejudice against AdventHealth.
When the case returned to a state administrative law judge, AdventHealth did not convince the ALJ that it had suffered the type of prejudice that would allow for a successful CON challenge.
“Here, the ALJ’s award of summary judgment to Mission and DHHS was proper because AdventHealth failed to meet its burden of showing substantial prejudice,” Judge John Arrowood wrote for a unanimous three-judge panel. “The evidence that AdventHealth presented about the harm arising from not holding an in-person hearing is hypothetical and fails to demonstrate specific, actual harm.”
“AdventHealth’s prediction that there would have been significant community participation at an in-person hearing, and that the public would have raised serious concerns, is purely speculative,” Arrowood added. “Moreover, AdventHealth did not demonstrate that such an in-person crowd would have had a different effect on the CON determination than the written comments that were actually submitted from the public.”
The Appeals Court rejected arguments that Mission’s CON would lead to lost revenue and reduced services for AdventHealth.
“[T]his Court has already held that quantifications of lost revenue and the resulting compromise of certain services are not sufficient to show substantial prejudice” in two precedent cases, Arrowood wrote. “AdventHealth has not demonstrated that its evidence of harm is significantly dissimilar to those cases.”
Appellate judges “conclude that AdventHealth has not demonstrated harm that goes above and beyond that which naturally results from additional competition,” Arrowood added.
Matthews records
In Gray Media Group v. Town of Matthews, the Appeals Court granted the town a partial victory in its effort to shield some records from WBTV in Charlotte.
The dispute stemmed from the firing of a Matthews police officer in 2022 after an investigation of excessive force during an arrest.
WBTV reporter Nick Ochsner requested bodycam recordings and other records related to the dismissal, including a report from an outside contractor — ISS — hired to conduct an independent investigation.
A trial judge granted portions of Ochsner’s request. Town officials appealed.
“Where, as here, the trial court ordered the ‘release’ of confidential personnel information to Gray Media — doing business as WBTV — the threat of mass publication is greater,” Judge Julee Flood wrote for a unanimous three-judge panel. “Thus, because the trial court does not have the authority under N.C.G.S. § 160A-168(c)(4) to order the release of any portion of a city employee’s personnel confidential personnel file, the trial court erred by ordering the Town ‘to release’ portions of the ISS Report to Gray Media.”
“Accordingly, we vacate the trial court’s order regarding the release of certain portions of the ISS Report and remand for entry of an order consistent with this opinion,” Flood added.
Meanwhile, the court upheld the trial court’s decision that Matthews should turn over unredacted email containing names of law enforcement officers linked to bodycam footage. The town had argued for removing the officers’ names before turning over the records to the TV station.
Slander allegations
The Appeals Court upheld a trial judge’s decision to throw out slander and libel claims a Charlotte-Mecklenburg police employee made against the local Fraternal Order of Police and its president.
Sandra D’Elosua Vastola was the police department’s public affairs director in April 2024 when she granted an interview to a television station after four officers were killed.
Vastola did not answer some questions about other officers “based on the belief that they constituted private personnel records under N.C.G.S. § 160A-168, and described the story as ‘a slam job that would damage the very men and women who are still recovering from this heinous incident,’” Flood wrote. “When the story was run, it characterized the Charlotte-Mecklenburg Police Department as lacking in transparency.”
After the interview, the FOP published Facebook posts criticizing Vastola’s “character and professionalism.” Vastola’s complaint against the group also claimed it “verbally disparaged her character and professionalism in an interview,” Flood wrote.
A trial judge dismissed Vastola’s lawsuit in April 2025. Appellate judges agreed with that decision.
“Here, none of the statements that Plaintiff identifies in her complaint can be seriously understood as containing factual content,” Flood wrote. “While perhaps deeply unflattering, accusing Plaintiff of ‘nastiness,’ opining that her actions constitute ‘failures as a person with power[,]’ characterizing her statements as ‘dismissive’ or ‘snap[ping] back with insults[,]’ or expressing that she made ‘poor decisions’ or a ‘[g]arbage response’ are all decidedly subjective opinions offered to characterize her behavior, not factual claims regarding the contents of her behavior.”
“[T]hey contain no factual content and therefore cannot, as a matter of law, be understood as defamatory,” Flood added.
“A statement expressing a purely subjective opinion about a person — regardless of whether that person is a public figure, whether the statement was made publicly, or whether the statement caused harm — is not defamatory,” Flood explained. “As the statements here expressed purely subjective opinions, the trial court correctly dismissed Plaintiff’s slander and libel claims.”
“Appeals Court tackles COVID, CON, public records, slander” was originally published on www.carolinajournal.com.
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