1. Workers' Compensation_findings of fact_supported by
plaintiff's testimony
The Industrial Commission's findings of fact in a workers'
compensation action were supported by the evidence where
plaintiff's testimony directly supported the factual description
of the circumstances as found by the Commission.
2. Workers' Compensation_injury arising from
employment_attempting to catch falling table
The Industrial Commission in a workers' compensation action
properly concluded that plaintiff's injury arose out of her
employment where plaintiff was injured when she instinctively
attempted to catch a falling table in a security area as she
returned from a break in a cafeteria on a different floor of her
building. Plaintiff was obtaining refreshment during a scheduled
break in a manner approved by the employer and her actions were
to the benefit of her employer.
Prince, Youngblood & Massagee, by Sharon B. Alexander, for
plaintiff-appellee.
Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Dale A.
Curriden, for defendants-appellants.
HUDSON, Judge.
Defendants Orkand Corporation and Zurich-American Insurance
Company appeal from an Opinion and Award of the North Carolina
Industrial Commission (the “Commission”) awarding total disability
compensation and medical expenses to Plaintiff. The only issue
raised on appeal is whether the Commission erred in itsdetermination that Plaintiff's injury arose out of her employment.
We affirm.
Relevant to this appeal are the following undisputed facts, as
found by the Commission. Plaintiff was injured on 2 October 1996,
while employed by Orkand Corporation, a federal government
subcontractor for whom she had worked for three years. Up until
the day of her injury, Plaintiff worked from 6:00 a.m. until 2:30
p.m., five days per week. During each work day, Plaintiff was
allowed two fifteen-minute breaks and a thirty-minute lunch break.
Orkand leased space in the Federal Building in Asheville, and
Plaintiff worked on the fourth floor. The Federal Building is open
to the public. Members of the general public could enter the
building through an entrance on the second floor, where security
guards, a metal detector, an x-ray/conveyor machine for checking
personal belongings, and a metal table were located. The security
guard and equipment at this entrance were provided by a company
under contract with the federal government.
On the day of the injury, Plaintiff went to a cafeteria
located in the Federal Building during one of her fifteen-minute
breaks. This cafeteria is located on the second floor, and
Plaintiff had to pass by the security area to reach the elevator to
return to her work area on the fourth floor. As Plaintiff was
passing the security area, the metal table there began to fall.
Plaintiff saw the table falling and reacted instinctively, going
two or three steps out of her way to attempt to catch the table
with her left hand. She caught the table with her left hand as it
fell, but it slipped from her hand and landed on her right foot. Plaintiff sustained injuries to her left hand, wrist, and forearm,
her right foot, and her lumbar spine.
The Commission determined that all of these injuries were the
result of the incident on 2 October 1996, and that Defendants
should pay for her medical treatment and temporary total disability
benefits for loss of wage earning capacity “from October 3, 1996 to
October 10, 1996 and from September 9, 1998 to the date of the
hearing before the Deputy Commissioner and continuing.” See N.C.
Gen. Stat. §§ 97-25, 97-29 (1999).
Ordinarily, the questions to be considered by this Court on
appeal are: (1) whether the findings are supported by the evidence;
(2) whether the findings support the conclusions of law; and
(3) whether the conclusions are consistent with the applicable
legal principles. “[A]ppellate courts reviewing Commission
decisions 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). On appeal from an opinion and award of the Commission,
findings of fact are conclusive if they are supported by any
competent evidence in the record, even if there is evidence that
would support findings to the contrary. See Adams v. AVX Corp.,
349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998). “The evidence
tending to support plaintiff's claim is to be viewed in the light
most favorable to plaintiff, and plaintiff is entitled to the
benefit of every reasonable inference to be drawn from theevidence.” Id.
Defendants have challenged a number of findings of fact and
conclusions of law in their assignments of error, and have combined
them all into one argument in their brief. In the assignments of
error, however, Defendants have referred to findings and
conclusions of the Deputy Commissioner, not to those of the Full
Commission. Under N.C. Rule of Appellate Procedure 10, these
assignments of error do not serve to bring forward challenges to
the findings and conclusions of the Full Commission. See N.C. R.
App. Proc. 10(c)(1)(1999). In Adams, our Supreme Court held that
the Commission in a workers' compensation case may not simply
affirm and adopt the findings of a deputy commissioner, but is
required to conduct its own review of the evidence; “the ultimate
fact-finding function [lies] with the [Full] Commission--not the
hearing officer.” Adams, 349 N.C. at 681, 509 S.E.2d at 413; see
Deese, 352 N.C. at 115, 530 S.E.2d at 552-53. Thus, it is the
Opinion and Award of the Commission, not that of the Deputy
Commissioner, that comes before this Court for review. However,
because the findings and conclusions of the Commission are nearly
identical to those of the Deputy Commissioner, and we presume that
this error was in the nature of a clerical oversight, we exercise
our discretion under N.C. Rule of Appellate Procedure 2 to review
the issue further.
In the Record on Appeal, Defendants have assigned as error the
following:
1.
Finding of Fact No. 14, wherein the
Commission found that “Since thePlaintiff had only short breaks, she was
required to go to this cafeteria in order
to obtain refreshment during her work
day. The conditions of employment placed
the employee near this table every time
she went to the cafeteria and as she
entered, left and, at times, moved about
the Federal Building,” on the ground that
there is insufficient evidence in the
record to support it.
Record, p. 26-27
2.
Finding of Fact No. 15, wherein the
Commission found that “The incident with
the falling table was an injury by
accident. Plaintiff was in the course
and scope of her employment when she
suffered the injury by accident,” on the
ground that it is not supported by
sufficient competent evidence and is
contrary to law.
Record, p. 27
Defendants make no argument in support of the contention that there
is no evidence to support Finding of Fact No. 14; thus under N.C.
Rule of Appellate Procedure 28, the first assignment of error is
deemed abandoned. See N.C. R. App. Proc. 28(a)(1999).
[1]The remaining assignments of error (numbers 2-14) include
challenges to Finding of Fact No. 15, and to the conclusions of law
and the award. In their one argument, Defendants assert, in
essence, that the evidence and the law do not support the factual
inference or legal conclusion that Plaintiff's actions benefitted
her employer or arose from a risk which was incidental to her
employment. Therefore, Defendants submit, Plaintiff's injuries
could not have resulted from an “injury by accident arising out of
and in the scope of” her employment.
Finding No. 15 is a mixed finding of fact and conclusion oflaw. To the extent that it is a factual finding, we hol
d that it
is supported by the evidence. Plaintiff's testimony directly
supports the factual description of the circumstances, as found by
the Commission.
[2]Having determined that the findings of fact are supported
by the evidence, we turn to the Commission's conclusions of law,
which we review de novo, and which we also affirm. See Snead v.
Carolina Pre-Cast Concrete, Inc., 129 N.C. App. 331, 335, 499
S.E.2d 470, 472, cert. denied, 348 N.C. 501, 510 S.E.2d 656 (1998).
Defendants argue that Plaintiff's injury did not “aris[e] out of”
the employment as that phrase has been defined by the courts, since
it was not the result of an activity incidental to her job. See
Roberts v. Burlington Industries, 321 N.C. 350, 364 S.E.2d 417
(1988); Culpepper v. Fairfield Sapphire Valley, 93 N.C. App. 242,
377 S.E.2d 777, aff'd per curiam, 325 N.C. 702, 386 S.E.2d 174
(1989). In both of these cases, the plaintiffs were injured
assisting motorists on the roadside, while on the way home from a
business trip or work. Defendant maintains that the facts here are
sufficiently analogous that these cases are controlling. We
disagree. In both cases, the plaintiffs had left work and were
driving home, when they stopped on their own volition to render
assistance. Although the plaintiffs' actions were admirable, any
benefit to the employer was too remote for our courts to hold that
the incidents arose out of the employment.
We agree with Plaintiff that the circumstances here are more
similar to the facts in Rewis v. Insurance Co., 226 N.C. 325, 38S.E.2d 97 (1946), and Shaw v. Smith & Jennings, Inc., 130
N.C. App.
442, 503 S.E.2d 113, disc. rev. denied, 349 N.C. 363, 525 S.E.2d
175 (1998). In Rewis, the plaintiff's deceased husband (the
employee) was killed while, during a personal visit to the
washroom, he became faint and fell through an open window. The
Supreme Court clearly indicated that personal breaks are included
within the scope of the employment. “An employee, while about his
employer's business, may do those things which are necessary to his
own health and comfort, even though personal to himself, and such
acts are regarded as incidental to the employment.” Rewis, 226
N.C. at 328, 38 S.E.2d at 99.
More recently, this Court issued its decision in the Shaw
case, which we do not find distinguishable in any significant
respect. There, the employee was killed in a motor vehicle crash
that occurred while he was going to get coffee during a scheduled
ten-minute “on the clock” break. This Court upheld the
Commission's determination that the incident arose out of the
employment. We summarized earlier decisions in which injuries
sustained during personal breaks were held covered by workers'
compensation:
This Court has held that if the
employee's injury is “fairly traceable to the
employment” or “any reasonable relationship to
employment exists,” then it is compensable
under the Act. White v. Battleground
Veterinary Hosp., 62 N.C. App. 720, 723, 303
S.E.2d 547, 549, disc. review denied, 309 N.C.
325, 307 S.E.2d 170 (1983) (citation omitted).
An employee is injured in the course of his
employment when the injury occurs “under
circumstances in which the employee is engagedin an activity which he is authorized to
undertake and which is calculated to further,
directly or indirectly, the employer's
business.” Powers v. Lady's Funeral Home, 306
N.C. 728, 730, 295 S.E.2d 473, 475 (1982)
(citations omitted).
Shaw, 130 N.C. App. at 445-46, 503 S.E.2d at 116. Quoting Harless
v. Flynn, 1 N.C. App. 448, 456-457, 162 S.E.2d 47, 53 (1968), we
observed in Shaw that
“[T]he fact that the employee is not engaged
in the actual performance of the duties of his
job does not preclude an accident from being
one within the course of employment. . . .
In tending to his personal physical
needs, an employee is indirectly [benefitting]
his employer. Therefore, the course of
employment continues when the employee goes
to the washroom, takes a smoke break, [or]
takes a break to partake of refreshment
. . . .”
Shaw, 130 N.C. App. at 446, 503 S.E.2d at 117 (alterations and
emphasis in original). The Court in Shaw went on to hold that the
Commission properly concluded that the death arose out of and in
the course of the decedent's employment, on the basis of the facts
that the employee was on a paid break a short distance from the
work-site, he had left the premises because of the absence of
closer facilities for food and drink, and the employer acquiesced
in the employees going off the work-site for refreshments. See id.
at 447, 503 S.E.2d at 117.
Here, as in Rewis and Shaw, Plaintiff was obtaining
refreshment during a scheduled break, in a manner approved by the
employer. Further, her actions in attempting to break the fall of
the table, which was part of the security system for the entirebuilding, was to the benefit of her employer as well as others in
the building.
In drawing this conclusion, we are mindful that the Supreme
Court has stated on numerous occasions that the Workers'
Compensation Act is to be construed liberally in favor of awarding
benefits. See, e.g., Harrell v. Harriet & Henderson Yarns, 314
N.C. 566, 578, 336 S.E.2d 47, 54 (1985). Based upon this
fundamental principle, we hold that the Commission properly
concluded that Plaintiff's injury was one “arising out of” her
employment, and therefore constituted an injury by accident.
Affirmed.
Judges WALKER and McGEE concur.
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