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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
DAVID LEE GRIGGS, Employee, Plaintiff v. EASTERN OMNI CONSTRUCTORS,
Employer, and LEGION INSURANCE COMPANY, Carrier, Defendants
Filed: 17 June 2003
Workers' Compensation_injury by accident_findings
A workers' compensation case was remanded to the Industrial Commission for further
findings as to whether plaintiff was injured while performing his usual tasks in the usual way under
the totality of conditions. Plaintiff was an electrician assigned to pull wire from machinery without
damaging it; the work was done while short-handed and under time constraints, and involved passing
the wire through a control panel more than twenty feet above the floor. The Commission found that
pulling wire in awkward positions was a normal part of plaintiff's job routine, but this is not
Appeal by plaintiff from Opinion and Award of the North
Carolina Industrial Commission filed 18 March 2002. Heard in the
Court of Appeals 15 May 2003.
Heidi G. Chapman for plaintiff-appellant.
Womble Carlyle Sandridge & Rice, PLLC, by Alison R. Bost, for
David Lee Griggs (plaintiff) appeals from an opinion and
award of the North Carolina Industrial Commission (Commission)
which denied workers' compensation benefits. We remand to the
Commission for further findings of fact and conclusions of law.
On 6 April 1999, plaintiff, who had been an electrician for
twenty-two years, was employed by Omni Constructors (employer) asan electrician and was working at a job site in Brown Summit.
Plaintiff and Richard Lambeth were assigned a rush job of pulling
old wire leading from heavy machinery without damaging the wire in
order that it could be reinstalled.
Plaintiff testified that he asked his supervisor for more help
because he did not feel that he and Lambeth would be able to
complete the assignment within the time frame required. His
supervisor was unable to provide additional assistance because they
were very short on personnel.
In order to remove the wire without damage, plaintiff was
required to disconnect the wire, pull it out of one set of conduit,
lay it out on the floor to straighten it, and feed the wire through
another conduit located above the ceiling which led to a control
panel where Lambeth could roll the wires. Each bundle of wires
weighed approximately 130 pounds.
Plaintiff was pulling the wire up and feeding it through the
control panel, more than twenty feet above the floor. Plaintiff
testified I was having to stand between the race way in my front,
and the conduit running at my back, and I was having to reach
across my left side down below my knees and [dead] lift this wire
up and hold it over my head to guide it to go down to the conduit,
to come out the other end to go back into the control panel to be
rolled up. In response to the question Have you ever done that
procedure before?, plaintiff responded It's an awkward positionto pull wire in, and it was very hard, but I can't actually say
I've actually been in a situation where I had to pull wire like
that before, no.
On cross-examination, plaintiff admitted that pulling wire
both in installation and in removal were normal parts of his
employment. Plaintiff explained, We were told that this wire was
to be saved, that the company wanted to try to re-install a
machine, which is very unusual, and this was the first time I'd
ever even done this in 22 years. Pulling wire on removal is
different because where you're doing a demolition, generally the
wire is just cut off, and it's cut off in a manner where you can
just more or less just reach it with one hand and yank it out of
While plaintiff was working in an awkward position, he felt
something pop really hard in [his right] shoulder. Plaintiff
waited a few minutes for the pain to subside and resumed work with
his other hand to complete his tasks. Plaintiff informed his
employer of the injury at his break.
After examining plaintiff, Dr. James Kendall placed
plaintiff's arm in a sling, ordered light work for four to five
days and prescribed prescription Ibuprofen. Despite plaintiff's
complaint of continued pain, employer returned plaintiff to his
previous job. When plaintiff informed employer that he was not
able to continue working because of the pain, employer terminatedplaintiff.
Plaintiff was examined by an orthopedic surgeon who diagnosed
plaintiff with a rotator cuff strain/sprain with
tendinitis/bursitis and DJD AC joint. When conservative
treatment failed, plaintiff underwent surgery to rebuild a
collapsed rotator cuff, remove a bone chip, and repair damage to
the shoulder ligaments.
Employer presented evidence that pulling wire was a part of
the daily requirements for electricians working with employer.
Fred Redman testified that there was nothing unusual in plaintiff's
description of the manner in which he was pulling wire, but that he
was not present that day and did not see the conditions under which
plaintiff worked. Redman further testified that running wires high
up off the floor was common.
The Commission found that a normal part of an electrician's
job was to pull wire through a conduit. Depending on the job, an
electrician may be in an awkward position from time to time. The
5. The evidence fails to show that plaintiff's
right shoulder injury was caused by an
accident arising out of and in the course of
his employment with defendant-employer. While
plaintiff indicated that he was in an awkward
position, his testimony is equivocal regarding
the unusualness of the incident. The greater
weight of the evidence including his testimony
demonstrates that there was no interruption of
his regular work routine, as pulling wire
sometimes in awkward positions was a normalpart of plaintiff's job routine.
Significantly, plaintiff had been working as
an electrician pulling wire for 22 years.
Moreover, there was nothing unusual in what
plaintiff was required to do in removing the
wire on April 6, 1999.
The Commission concluded that plaintiff was not entitled to
benefits because the injury did not occur by accident.
Commissioner Laura Kranfield Mavretic dissented. Plaintiff
Plaintiff contends the Commission erred in (1) concluding
plaintiff did not suffer an injury by accident and (2) failing to
make sufficient findings of fact.
III. Standard of Review
In appeals from the Commission, our review is limited to
whether there is any competent evidence in the record to support
the Commission's findings of fact. Adams v. AVX Corp., 349 N.C.
676, 681, 509 S.E.2d 411, 414 (1998). Even where there is
competent evidence to the contrary, we must defer to the findings
of the Commission where supported by any competent evidence.
Larramore v. Richardson Sports Ltd. Partners, 141 N.C. App. 250,
259, 540 S.E.2d 768, 773 (2000), aff'd, 353 N.C. 520, 546 S.E.2d 87
(2001). The Commission's findings of fact may only be set aside
when there is a complete lack of competent evidence to support
them. Click v. Freight Carriers, 300 N.C. 164, 166, 265 S.E.2d389, 390 (1980). We review conclusions of law de novo.
IV. Injury by Accident
Plaintiff contends the Commission erred in concluding
plaintiff did not suffer an injury by accident.
A compensable injury is an injury by accident arising out of
and in the course of employment. N.C. Gen. Stat. § 97-2(6). An
accident has been defined as an unlooked for and untoward event
which is not expected or designed by the injured employee. Norris
v. Kivettco, Inc., 58 N.C. App. 376, 378, 293 S.E.2d 594, 595
(1982). There must be some unforeseen or unusual event other than
the bodily injury itself. Rhinehart v. Roberts Super Market,
Inc., 271 N.C. 586, 588, 157 S.E.2d 1, 3 (1967). If an employee
is injured while carrying on his usual tasks in the usual way the
injury does not arise by accident. Lineback v. Wake County Bd. Of
Comm'rs, 126 N.C. App. 678, 681, 486 S.E.2d 252, 254-55 (1997).
An accident therefore involves 'the interruption of the routine of
work and the introduction thereby of unusual conditions likely to
result in unexpected consequences. Calderwood v. Charlotte-
Mecklenburg Hosp. Auth., 135 N.C. App. 112, 115, 519 S.E.2d 61, 63
(1999), disc. rev. denied, 351 N.C. 351, 543 S.E.2d 124 (2000).
In Calderwood, the plaintiff was a registered nurse assisting
in the delivery room. 135 N.C. App. at 113, 519 S.E.2d at 62. The
patient she was assisting was 5'3" tall and weighed 263 pounds.
Id. The patient received an epidural which resulted in a completeblock such that she was unable to assist in lifting her own leg.
The plaintiff lifted the patient's leg without assistance from the
patient and injured her shoulder. Id. The plaintiff testified
that she was sometimes required to assist in lifting a patient's
leg as part of her usual job, however, the size and complete lack
of assistance from the patient was unusual. Id. The plaintiff's
supervisor testified that lifting the leg of a patient during
delivery was a job expectation. Id. at 114, 519 S.E.2d at 62.
The Commission found that the plaintiff was injured while
performing her usual employment duties in the usual way. Id. at
114, 519 S.E.2d at 63. This Court reversed holding that there was
no competent evidence to support the findings that the injury
occurred while performing her usual employment and were not a
result of unforeseen or unusual event. Id. at 116, 519 S.E.2d at
64. The fact that her job responsibility did include assisting
patients who received epidurals resulting in a total block is not
dispositive. The question is whether her regular work routine
required lifting the legs of women weighing 263 pounds who had
received epidurals resulting in total blocks, ... and there is no
evidence that it did. Id. at 116, 519 S.E.2d at 63-64.
Here, plaintiff testified that he was pulling old wire, under
an accelerated time frame, without additional help, twenty-five
feet above the ground, and attempting to salvage the wire to reuse.
Plaintiff presented evidence to show that he needed and should havebeen given additional help in completing this job. Defendants did
not present any evidence to dispute plaintiff's evidence regarding
the usual number of employees required for the specific job, the
usual time frame for such a job, or that the actions of plaintiff
were usual. None of defendant's witnesses were present at the time
of the injury.
The Commission found pulling wire sometimes in awkward
positions was a normal part of plaintiff's job routine. This is
not dispositive. The question is whether the totality of the
conditions under which plaintiff worked at the time of the injury
were usual tasks in the usual way expected of an electrician
working for the employer. Lineback, 126 N.C. App. at 681, 486
S.E.2d at 255.
We remand this case to the Commission for further findings,
either with or without the taking of additional evidence, regarding
whether, under the totality of the circumstances, plaintiff was
performing usual tasks in the usual way expected of an
electrician working for the employer.
Judges MCGEE and CALABRIA concur.
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