Appeal by defendants from opinion and award entered 15 July
2002 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 24 May 2004.
George W. Lennon, Esq., and Hugh D. Cox, Jr., Esq., for
plaintiff-appellee.
CRANFILL, SUMNER & HARTZOG, L.L.P., by J. Gregory Newton and
Jaye E. Bingham, for defendants-appellants.
TIMMONS-GOODSON, Judge.
Easco Alumninum Corporation (“Easco”) and Hartford Specialty
Risk Services, Inc. (“Hartford”) (collectively, “defendants”)
appeal an opinion and award of the North Carolina Industrial
Commission (“the Commission”) awarding Rachel N. Jenkins
(“plaintiff”) temporary disability payments and prosthetic fingers
at defendants' expense. For the reasons stated herein, we affirm
the Commission's opinion and award.
The pertinent facts and procedural history of the instant case
are as follows: On 17 May 1993, plaintiff was injured in an
industrial accident while employed as a brake press machine
operator for Easco. Plaintiff remembers experiencing a period of
dizziness prior to losing consciousness. During the accident, the
fingers on plaintiff's left hand were crushed by the operational
mechanisms of the brake press machine. Although metal guards
designed to protect workers' hands were installed immediately after
the date of plaintiff's accident, no such metal guards were in
place at the time of plaintiff's injury.
As a result of plaintiff's injury, Dr. Robert Kahn (“Dr.
Kahn”) assigned a 75% permanent partial disability rating to four
fingers of plaintiff's left hand. Plaintiff was compensated by
Easco for eleven months after her accident. In April 1994,
plaintiff returned to work at Easco as a quality control inspectorof metal parts. However, because plaintiff was the junior employee
in the quality control department, she was the first employee
released when Easco experienced a work slowdown in November 1996.
After being released, plaintiff requested a hearing before the
North Carolina Industrial Commission regarding her disability
status. On 27 August 1998, the Deputy Commissioner awarded
plaintiff temporary total disability from the date of the release
and increased plaintiff's compensation by ten percent pursuant to
N.C. Gen. Stat. § 97-12 (2003) for alleged safety violations
committed by Easco. The Deputy Commissioner also determined that
plaintiff was entitled to prosthetic fingers at defendants'
expense. The parties appealed the Deputy Commissioner's award to
the Commission. On 6 July 1999, the Commission reversed the Deputy
Commissioner's award, concluding that while plaintiff was entitled
to have prosthetic fingers provided by defendants, plaintiff was
not entitled to any temporary total disability payments from
defendants.
Plaintiff appealed the Commission's decision to this Court.
In Jenkins v. Easco Aluminum Corp., 142 N.C. App. 71, 541 S.E.2d
510 (2001) (“Jenkins I”), we vacated the Commission's decision and
remanded the case, instructing the Commission to consider all the
evidence on disability and safety violations, to rule on
plaintiff's pending motions and objections, and to enter awards
where it deemed appropriate. On remand, the Commission reversed
its prior decision and awarded plaintiff temporary disability
payments from the date of release as well as prosthetic fingers
should plaintiff desire them. Pursuant to N.C. Gen. Stat. § 97-12,the Commission also increased plaintiff's compensation for
temporary total disability benefits because of alleged safety
violations committed by Easco. It is from this opinion and award
that defendants appeal.
_____________________________
The issues on appeal are (I) whether the Commission erred in
reversing its prior award, findings of fact, and conclusions of
law; (II) whether the Commission's conclusion of law that
plaintiff's position was “make work” was supported by adequate
findings of fact; and (III) whether the Commission's conclusion of
law that Easco willfully failed to comply with statutory standards
was supported by adequate findings of fact.
[1] Defendants first argue that the Commission erred in
reversing its prior award, findings of fact, and conclusions of
law. Defendants assert that the Commission exceeded its scope of
authority on remand by wholly reversing its prior opinion and
award. We disagree.
In
Jenkins I, plaintiff argued that the Commission erred in
failing to consider the testimony of Dr. Sheldon Downes
(“Dr.
Downes”), a Professor of Rehabilitation Counseling and Director of
the Rehabilitation Counseling Program at East Carolina University.
142 N.C. App. at 77, 541 S.E.2d at 514. We recognized that
“'[w]hile the Commission is the sole judge of the credibility of
witnesses and may believe all or a part or none of any witness's
testimony, . . . it nevertheless may not wholly disregard competent
evidence[.]'”
Id. at 78, 541 S.E.2d at 515 (quoting
Harrell v.
Stevens & Co., 45 N.C. App. 197, 205, 262 S.E.2d 830, 835,
disc.review denied, 300 N.C. 196, 269 S.E.2d 623 (1980)). Thus, because
Dr. Downes' testimony “was certainly relevant to the exact point in
controversy,” and because there was “no mention at all of Dr.
Downes' testimony in the [6 July 1999] opinion and award,” we held
that “the Commission erred in failing to indicate that it
considered the testimony of Dr. Downes.”
Jenkins I, 142 N.C. App.
at 78-79, 541 S.E.2d at 515. We then stated the following:
Consequently, the opinion and award of the
Industrial Commission must be vacated, and the
proceeding “remanded to the Commission to
consider all the evidence, make definitive
findings and proper conclusions therefrom, and
enter the appropriate order.”
Id. at 79, 541 S.E.2d at 515 (quoting
Lineback v. Wake County Board
of Commissioners, 126 N.C. App. 678, 683, 486 S.E.2d 252, 255
(1997)).
In the instant appeal, defendants cite
Jackson v. Fayetteville
Area System of Transp., 88 N.C. App. 123, 362 S.E.2d 569 (1987)
(“
Jackson II”) in support of their argument. However, we conclude
Jackson is inapposite to the instant case.
In
Jackson v. Fayetteville Area Sys. of Transp., 78 N.C. App.
412, 337 S.E.2d 110 (1985) (“
Jackson I”), the defendant appealed
the Commission's conclusion that the plaintiff sustained a
compensable injury in an employment-related accident. “Because of
the insufficiency of the findings as to plaintiff's injury by
accident, we reverse[d] and remand[ed] the cause to the Industrial
Commission for specific findings of fact regarding the injury, if
any, sustained by plaintiff and the nature of that injury.”
Id. at
414, 337 S.E.2d at 112. On remand, the Commission reconsidered the
entire record and reinstated the Deputy Commissioner's opinion andaward, which concluded that the plaintiff's injury was not
compensable. The plaintiff then appealed, and in
Jackson II, we
reversed the Commission's decision on remand, concluding that
“[t]he Commission exceeded the scope of its instructions by
revising its entire opinion and vacating its earlier findings.” 88
N.C. App. at 127, 362 S.E.2d at 572.
The instructions to the Commission on remand were not so
limited in the instant case. In
Jenkins I, this Court determined
that there was no “finding from which we [could] reasonably infer
that the Commission gave proper consideration” to Dr. Downes'
testimony, which we characterized as “certainly relevant to the
exact point in controversy.” 142 N.C. App. at 78, 541 S.E.2d at
515. However, we did not remand the case with instructions to
“make specific findings of fact” regarding Dr. Downes' testimony,
as in
Jackson I. Instead, we vacated the Commission's opinion and
award, and we instructed the Commission to “
consider all the
evidence” on remand and to make “definitive findings and proper
conclusions therefrom, and enter the
appropriate order.”
Id. at
79, 541 S.E.2d at 515 (emphasis added).
Given the importance of Dr. Downes' testimony to the case, our
decision and language in
Jenkins I clearly indicated that the
Commission was free to reverse its previous order on remand if,
after considering Dr. Downes' testimony, it felt such a reversal
was necessary. The “exact point in controversy” throughout the
case has been
“whether the quality inspector job performed by
plaintiff was an adequate indicator of her ability to compete for
similar jobs in the marketplace.”
Id. at 78, 541 S.E.2d at 515. Dr. Downes' conclusion that “because of plaintiff's physical
limitations and her limited educational background and experience,
there are no competitive jobs she can perform” is certainly
important to whether plaintiff's inspector job was “make work”
created by defendant to shield itself from further compensation
payments.
Id. at 77, 541 S.E.2d at 515. Furthermore, although she
concluded that plaintiff's inspector job was not “make work,”
Annette Ruth (“Ruth”), defendants' vocational expert, testified at
the hearing that she had not performed any tests on plaintiff like
those administered by Dr. Downes but that she had examined Dr.
Downes' report and had no reason to doubt either the results of the
dexterity tests performed by Dr. Downes or his medical conclusions.
Id. at 78, 541 S.E.2d at 515.
“The Commission is the sole judge of the credibility of
witnesses and the weight to be given their testimony; it may accept
or reject all of the testimony of a witness; it may accept a part
and reject a part.”
Blalock v. Roberts Co., 12 N.C. App. 499, 504,
183 S.E.2d 827, 830 (1971). We conclude that our instructions on
remand did not deprive the Commission of its authority to find the
facts and make the conclusions of law it deems proper. Thus, we
hold that the Commission did not exceed its authority in reversing
its prior award, findings of fact, and conclusions of law on
remand. Therefore, defendants' first argument is overruled.
[2] Defendants next argue that the Commission erred in
concluding as a matter of law that plaintiff's position was “make
work.” Defendants assert the Commission's conclusion was not
supported by adequate findings of fact. We disagree. In this argument, defendants assign error to eleven findings
of fact made by the Commission in its 6 July 1999 order. However,
the body of defendants' brief contains specific challenges to only
one of these findings: finding of fact number eleven. Those
errors assigned to other findings but not supported by argument in
defendants' brief are deemed abandoned.
Hooker v. Stokes-Reynolds
Hosp., 161 N.C. App. 111, 114-15, 587 S.E.2d 440, 443 (2003);
see
N.C.R. App. P. 28(b)(6) (2004).
Finding of fact number eleven states in pertinent part:
11. As to similar jobs in Hertford County, no
evidence was submitted to show that plaintiff
would be hired [as a quality inspector] in a
competitive job market given her disability
from the compensable injury.
Defendants contend that this portion of the finding is contradicted
by Ruth's testimony. Ruth testified at the hearing concerning
other jobs in the area as follows:
COUNSEL: Did you -- now, outside Easco have
you done any, what do you call,
surveys in the area?
WITNESS: Job search activity.
COUNSEL: Yes.
WITNESS: [Plaintiff and I] met twice during
this -- during the time that we
initiated a few months back, and we
did find one particular job with the
Ahoskie school system, but we
secured an application and we -- I
followed up. They just -- we're
waiting. I don't know if they were
hiring for assistantships or waiting
'til the fall.
COUNSEL: Okay. Is that -- is there anything
else you're waiting on?
WITNESS: No, that's -- that's it.
COUNSEL: Okay. Did you do any type of survey
-- other than finding just direct
jobs, a survey of what's available
in her area -- you know, in the
Winton-Ahoskie area?
WITNESS: A labor market survey?
COUNSEL: Yeah.
WITNESS: That's generally directed through
the insurance company, and I wasn't
given any directions as to -- to do
a job search activity except I did -
- I did do a research analysis in
the area based on the inspector's
job to see if that type of work was
transitional within other industrial
companies in the Ahoskie area.
[Ruth then examines a report by Downes]
WITNESS: I did a research analysis of the
local area in Hertford County with
different industries, and this job
does exist within other companies.
They don't always call it quality
control technician. It has an
interchangeable name such as grader,
tester, and assurance inspector.
. . . .
COUNSEL: Okay. You mentioned earlier that
you talked -- you called and talked
to some other job -- manufacturing
plants in the area.
WITNESS: Yes. Uh-huh (yes).
COUNSEL: Could you tell us what you did in
that regard?
WITNESS: I -- I telephoned several industrial
companies manufacturing [sic] that
would be comparable in production
factory and spoke with human
resource or personnel person in
charge of the company and asked them
specific questions as to the type of
training -- if they have inspectors
or quality control type of position,
and what type of training and
educational background would beneeded to hold that position.
COUNSEL: And do you happen to recall what
companies you talked to?
WITNESS: Not right off hand, but I spoke with
Perdue. I spoke with Billets,
Carolina Billets.
COUNSEL: Is this something you did recently
that's going to be a part of another
report -- a vocational report?
WITNESS: I thought my company -- I thought I
wrote this up and my company sent it
to you, but evidently -- I just
wrote it up last week, so what I do
is that I -- I dictate my reports,
and I send them in. I just -- it
just was --
COUNSEL: When you asked me this morning if I
had received a fax, was this that
report?
WITNESS: Could be.
COUNSEL: Well, your report should be
submitted at a later date. I will
send that in addition to her
attorney as part of your report
before I send it in. That's all I
have.
We disagree with defendants' assertion that Ruth's testimony
contradicts the Commission's determination in finding of fact
number eleven. There was no indication from Ruth's direct job
survey that plaintiff would be hired elsewhere in the area -- the
Ahoskie school system had not decided whether it had a position
open for plaintiff. Although Ruth did testify that positions
similar to plaintiff's quality inspector position existed at other
manufacturing plants in the area, Ruth did not conclude that
plaintiff would be hired in any of these positions given her
injury. Similarly, the record contains no reports from Ruthreaching a conclusion as to whether plaintiff would be hired at the
Ahoskie school system or by the other manufacturing plants in the
area.
Defendants also assert that three of the Commission's
conclusions of law are not supported by adequate findings of fact.
Specifically, defendants argue that conclusions of law numbers two,
three, and four are not supported by adequate findings of fact. We
disagree.
In its opinion and award, the Commission made the following
conclusions of law:
2. As a result of her compensable injury,
plaintiff was disabled and was unable to earn
wages of any kind from May 17, 1993 to April
10, 1994. She was paid temporary total
disability during this period. Plaintiff
returned to work as a Quality Control
Inspector on April 10, 1994. Plaintiff's
position was modified and can be characterized
as “make work.” Since plaintiff's job was
make-work, defendants have not established
that plaintiff was capable of obtaining a
position suitable to her age, education,
experience, and with her physical limitations
due to her disability.
Bridges v. Linn-
Corriher Corp., 90 N.C. App. 397, 368 S.E.2d
388,
disc. rev. den.[,] 323 N.C. 171, 373
S.E.2d 104 (1988);
Peoples v. Cone Mills
Corp., 316 N.C. App. 426, 342 S.E.2d 798
(1986).
3. Plaintiff was laid off from her “make
work” position on November 22, 1996 and no
other work has been made available.
Defendants produced no evidence that there are
other jobs available in the job market which
plaintiff could obtain given her restrictions.
Plaintiff has presented evidence that she is
totally disabled at this time and will require
extensive retraining and assistance with job
searches and job placement to return to
gainful employment.
Radica v. Carolina Mills,
113 N.C. App. 440, 439 S.E.2d 185 (1994).
4. Plaintiff is entitled to temporary totaldisability benefits at her compensation rate
of $216.54 per week for the period of
temporary disability between [the] date of her
“lay-off” on [] November 22, 1996 [and] the
date of the filing of this Opinion and Award
(with credit for the Unemployment compensation
arranged by the employer) pursuant to N.C.
Gen. Stat. § 97-29 and henceforth until
plaintiff returns to work or until further
Order of the Commission.
Plaintiff received her total disability benefits pursuant to
a duly approved Form 21 agreement. In such an instance, a
presumption of total disability attaches in favor of the employee.
Saums v. Raleigh Community Hospital, 346 N.C. 760, 763, 487 S.E.2d
746, 749 (1997). “After the presumption attaches, 'the burden
shifts to [the employer] to show that plaintiff is employable.”
Id. (quoting
Dalton v. Anvil Knitwear, 119 N.C. App. 275, 285, 458
S.E.2d 251, 257,
disc. review and cert. denied, 341 N.C. 647, 462
S.E.2d 507 (1995)). “However, the fact that an employee is capable
of performing employment tendered by the employer is not, as a
matter of law, an indication of plaintiff's ability to earn wages.”
Saums, 346 N.C. at 764, 487 S.E.2d at 750. The tendered employment
must accurately reflect the employee's ability to compete with
others in the job market in order for the employment to be
indicative of an employee's earning capacity.
Peoples v. Cone
Mills Corp., 316 N.C. 426, 438, 342 S.E.2d 798, 806 (1986). Thus,
“if other employers would not hire the employee with the employee's
limitations at a comparable wage level. . . . [or] if the proffered
employment is so modified because of the employee's limitations
that it is not ordinarily available in the competitive job market,”
the job is “make work” and is not competitive.
Id.
In the instant case, witnesses for defendants testified thatplaintiff's position was no different from the other inspector
positions in her shift, that plaintiff satisfactorily performed her
job as a quality inspector, and that the inspector job was a
competitive job in the local market. Defendants contend they thus
rebutted the presumption of continuing disability in the instant
case by establishing that plaintiff's job at Easco was not “make
work” and that similar jobs suitable for plaintiff were available
in the local market. Defendants cite the “uncontested evidence”
and testimony of their witnesses in support of this contention and
request that this Court reverse the Commission's opinion and award.
However, on appeal of a worker's compensation decision, this Court
does not have the authority to weigh the evidence and decide an
issue on the basis of its weight.
Walker v. Lake Rim Lawn &
Garden, 155 N.C. App. 709, 713, 575 S.E.2d 764, 767,
disc. review
denied, 357 N.C. 67, 579 S.E.2d 577 (2003). Instead, evidence
tending to support the plaintiff's claim must be taken in the light
most favorable to the plaintiff, and the plaintiff “is entitled to
the benefit of every reasonable inference to be drawn from the
evidence.”
Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411,
414 (1998),
rehearing denied, 350 N.C. 108, 532 S.E.2d 522 (1999).
Plaintiff produced evidence at trial tending to show that she
could only perform some of the tasks of her position without
assistance, that many of defendants' suggested jobs for plaintiff
involved the use of both hands, that she was limited in her ability
to use her injured hand, and that defendants' vocational consultant
was unable to locate suitable employment for plaintiff. Dr. Downes
testified that jobs involving finger dexterity or rapid movementswere impossible for plaintiff to accomplish, and that, given her
injuries, of the possible jobs for plaintiff proffered by
defendants, only the Saw Helper job, a job Dr. Downes was
unfamiliar with, appeared suitable for plaintiff. Considering this
evidence in the light most favorable to the plaintiff, we conclude
that defendants failed to sufficiently establish that plaintiff was
not prohibited from gaining competitive employment because of her
continuing disability. The Commission's findings of fact were
supported by competent evidence, and its findings supported its
conclusions of law. Thus, we hold the Commission did not err in
making its conclusions of law. Therefore, defendants' second
argument is overruled.
[3] Defendants next argue that the Commission erred in
concluding that Easco willfully failed to comply with a statutory
safety requirement. Defendants assert that the Commission's
conclusion that plaintiff was entitled to a ten percent increase in
compensation because of Easco's alleged violation of the safety
requirement was unsupported by adequate findings of fact. We
disagree.
N.C. Gen. Stat. § 97-12 (2003) states that “[w]hen the injury
or death is caused by the willful failure of the employer to comply
with any statutory requirement or any lawful order of the
Commission, compensation shall be increased ten percent[.] . . .
The burden of proof shall be upon him who claims an exemption or
forfeiture under this section.” An act is considered willful “when
there exists 'a deliberate purpose not to discharge some duty
necessary to the safety of the person or property of another,' aduty assumed by contract or imposed by law.”
Beck v. Carolina
Power & Light Co., 57 N.C. App. 373, 383-84, 291 S.E.2d 897, 903
(1982)(quoting
Brewer v. Harris, 279 N.C. 288, 297, 182 S.E.2d 345,
350 (1971)). The ten percent increase in compensation for willful
OSHA violations is added to a successful plaintiff's total award.
In the instant case, the Commission concluded in pertinent
part:
6. Plaintiff is entitled to a 10% penalty for
unsafe conditions created by [Easco] pursuant
to N.C. Gen. Stat. § 97-12 because of OSHA
violations (29 C.F.R. §1910.212) for which
[Easco] had prior knowledge and willfully
chose not to comply with OSHA regulations.
Plaintiff has met her burden of proof with
regard to [Easco's] actions being willful.
In support of this conclusion, the Commission found:
15. If guards had been in place on the Press
Brake machine upon which plaintiff operated,
according to Ms. Ealey, it would have been
impossible for finger injuries or amputations
to occur. Following plaintiff's injury,
guards were placed on the Press Brake machine.
16. [Easco's] Press Brake machines did not
have guarding as defined by North Carolina's
OSHA Manual. Moreover, the press brake
machines did not prevent entry of hands and
fingers into the point of operation. [Easco]
willfully failed to come [into] compliance
with OSHA standards, even though they had been
informed by at least one employee of problems
with the Press Brake machine.
17. According to Mr. Melvin Gurganus, also an
employee of [Easco] many portions of the OSHA
Manual were not being enforced or in place at
the time of plaintiff's injury. Mr. Gurganus
confirmed that a guard was put on the machine
after plaintiff was injured. [Easco] no
longer owns press brake machines of the sort
upon which plaintiff was injured.
. . . .
29. [Easco] had knowledge through itsemployees such as Ms. Ealey that some Press
Brake machines were inadequately guarded.
Failure to bring the brake press machines back
into compliance was an OSHA violation of
[Easco] had knowledge of and willfully failed
to come into compliance. CFR 1910.212
requires that guards should be applied
where
possible. It is the responsibility of
management at [Easco] to maintain guards in a
serviceable condition. The required standards
were not met. [Easco] did install guards
immediately after plaintiff's accident
indicating that
it was possible to install
guards on the press brake machines, and
therefore, should have been done. It was also
the responsibility of [Easco's] supervisor to
properly train plaintiff in using the machine
with guards. Such training did not occur in
violation of OSHA standards. See OSHA
Publication 3067 (1992).
(emphasis in original).
Defendants contend that finding of fact number sixteen is not
supported by competent evidence. However, testimony at the hearing
from both plaintiff and plaintiff's co-workers firmly established
that, on the date of plaintiff's injury, there were no guards on
the brake press machine plaintiff was operating. Linda Ealey
(“Ealey”), an employee of Easco who was working at the plant the
day plaintiff was injured, testified that she was aware of three
different occasions when a brake press machine had operated on its
own, and that she had reported the machines as malfunctioning. She
also testified that it would have been impossible for finger
injuries or amputations to have occurred had a guard been in place
on plaintiff's machine. We conclude this testimony was sufficient
to support finding of fact sixteen.
Defendants also contend that the Commission erred in basing
its conclusion on its finding that Easco applied guards to the
brake press machines subsequent to plaintiff's injury. Asdefendant correctly notes, the sole fact that guards were applied
to the machinery subsequent to plaintiff's injury is insufficient
to support a conclusion that Easco willfully violated a safety
statute.
See Ledford v. Lumber Co., 183 N.C. 614, 615, 112 S.E.
421, 422 (1922)
(“In an action by an employee to recover for
injuries alleged to have been received in consequence of defective
machinery, used by his employer, the fact that after the injury the
defendant substituted machinery of different material and adopted
additional precautions in its use, is no evidence of negligence.”).
However, as reflected in finding of fact twenty-nine, the
subsequent application of safety devices by Easco in the instant
case establishes that “
it was possible to install guards on the
press brake machines.” (emphasis in original). Part 1910 of the
Occupational Safety and Health Standards requires that “[o]ne or
more methods of machine guarding shall be provided to protect the
operator and other employees in the machine area from hazards such
as those created by point of operation[.]” 29 C.F.R. §
1910.212(a)(1) (2003). The provision further requires that
“[g]uards
shall be affixed to the machine
where possible and
secured elsewhere if for any reason
attachment to the machine
is
not possible.” 29 C.F.R. 1910.212(a)(2) (emphasis added).
In addition to the testimony concerning subsequent application
of safety devices, the Commission considered the testimony from
Ealey, who testified that she had informed Easco's management of
several malfunctions in the brake press machines. Plaintiff
testified that she received approximately ten minutes of training
on how to safely operate the brake press machine. Melvin Gurganus(“Gurganus”), another employee of Easco, testified that many
portions of the OSHA manual were not being enforced by Easco at the
time of plaintiff's injury, including the requirements of Part 1910
of the Standards. Considering the evidence detailed above in the
light most favorable to plaintiff, we conclude plaintiff offered
competent evidence to support the Commission's conclusion that
Easco willfully violated the safety statute.
Defendants further contend that plaintiff failed to offer
sufficient evidence to establish that the absence of the guard was
the cause of her injury. In support of this contention, defendants
note that plaintiff testified at the hearing that she felt dizzy
prior to her injury and could not recall exactly how she was
injured, and that Billy Saulter (“Saulter”), plaintiff's vocational
expert, testified that guards on a brake press machine could not
prevent all injuries. However, as evidenced by the trial court's
determination in finding of fact number fifteen, Ealey testified
that “[i]f guards had been in place on the Press Brake machine upon
which plaintiff operated . . . it would have been impossible for
finger injuries or amputations to occur.” Ealey had been employed
as a brake press machine operator by Easco for over two years at
the time of plaintiff's injury. She continued to work as a brake
press machine operator at Easco after plaintiff's injury and after
guards were placed on the brake press machines. Thus, we conclude
plaintiff offered sufficient evidence to allow the Commission to
conclude that the absence of the guard was the proximate cause of
plaintiff's injury. Defendants' final argument is therefore
overruled. We have reviewed defendants' remaining assignments of error
and find them to be without merit. Therefore, the decision of the
Commission is affirmed.
Affirmed.
Judges HUNTER and GEER concur.
*** Converted from WordPerfect ***