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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.
NELSON KONRADY, Employee, Plaintiff, v. U.S. AIRWAYS, INC.,
Employer, RELIANCE NATIONAL INSURANCE COMPANY, Carrier, and
SEDGWICK CLAIMS MANAGEMENT, Administrator, Defendants.
Filed: 3 August 2004
1. Workers' Compensation--injury--accident
The Industrial Commission did not err in a workers' compensation case by concluding
that plaintiff employee flight attendant suffered an injury by accident on 18 November 1999
when she misstepped while exiting from a hotel van with an unexpectedly short final step where
the steps also overlapped with the curb, because: (1) the issue is not whether exiting vans is
routine for plaintiff, but whether something happened as she was exiting that particular van on
that specific occasion that caused her to exit the van in a way that was not normal; and (2) the
unusual condition of half steps or the unusual circumstance of engaging in missteps was not part
of plaintiff's normal work routine even if plaintiff's normal routine included frequent van trips.
2. Workers' Compensation--injury--causation
The Industrial Commission did not err in a workers' compensation case by concluding
that plaintiff employee flight attendant proved that her injury was causally related to a short step
on a hotel van because even though the question of the sufficiency of the evidence as to causation
is not properly before the Court of Appeals, there was ample evidence from a doctor's testimony
to support the Commission's finding and conclusion that the accident on 18 November 1999
caused plaintiff's disability.
3. Workers' Compensation-_medical expenses--apportionment
The Industrial Commission did not err in a workers' compensation case by failing to
apportion plaintiff's medical expenses and disability between the November 1999 incident and
plaintiff employee's previous ACL tear, because: (1) defendants have pointed to no evidence in
the record that allocates the medical expenses or the degree of temporary disability between the
two conditions; and (2) the lack of evidence of how the expenses or disability should be allocated
meant the Commission was not required to apportion.
Appeal by defendants from the Opinion and Award of the North
Carolina Industrial Commission entered 17 July 2002 by
Commissioner Dianne C. Sellers. Heard in the Court of Appeals 28
Mark T. Sumwalt, P.A., by Mark T. Sumwalt and Vernon Sumwalt,
Brooks, Stevens & Pope, P.A., by Daniel C. Pope, Jr. and
Kimberley A. D'Arruda, for defendants-appellants.
Defendants appeal from an Opinion and Award of the Industrial
Commission concluding that plaintiff Nelson Konrady suffered a knee
injury as a result of an accident when she misstepped while exiting
from a van with an unexpectedly short final step. Because the
Commission's decision is supported by competent evidence and its
findings support its conclusions of law, we affirm.
At the time of the hearing before the deputy commissioner,
Konrady had been a flight attendant for 28 years. On the evening
of 18 November 1999, defendant U.S. Airways had arranged for the
flight crew, including Konrady, to stay at the Hilton for their
layover in Raleigh. A Hilton courtesy van arrived at the Raleigh-
Durham Airport to transport Konrady and her coworkers to the hotel.
As plaintiff descended the steps from the van at the hotel, she
"misstepped" on the last step because the last step was shorter
than the other steps and because the van had parked so that the
steps overlapped the curb. As a result, Konrady unexpectedly
stepped onto the elevated curb, rather than down onto the road.
Konrady could not recall ever before encountering a shortened step
while exiting a van.
Because of Konrady's "misstep," her right leg hit the ground
harder than she expected and she immediately felt a sharp pain in
her right knee. Konrady testified that the "last step was a short
step. It wasn't the same length as the other steps. . . . so when
I took that step, I felt some pain in my right knee." She started
walking to the back of the van to get her luggage, but felt severepain again and had to walk with her leg bent for the pain to
subside. After retrieving her luggage and going to her hotel room,
Konrady went to sleep. She awoke in the middle of the night; when
she started to walk to the bathroom, she felt the pain again.
The next morning, Konrady returned to Charlotte on a "no-
serve" flight that allowed her to sit in her jump seat for the
entire flight. She completed an incident report upon arriving in
Charlotte and promptly took a non-working flight to her home in
Wilmington and sought medical treatment. Konrady initially saw Dr.
William Sutton of the Wilmington Orthopaedic group on 19 November
1999. She had right knee pain upon standing, pain with flexion of
the knee, and some tenderness over the medial joint line.
U.S. Airways directed Konrady to see its company physician,
Dr. Roger Hershline. Dr. Hershline diagnosed a bilateral knee
strain and excused Konrady from work through 22 November 1999. Dr.
Hershline referred Konrady to Dr. Thomas Parent (also of the
Wilmington Orthopaedic group), who had treated her for a prior
injury. On 1 December 1999, an MRI revealed a possible meniscal
tear and condylar lesion or injury to plaintiff's cartilage. The
MRI also revealed an absent cruciate ligament as a result of a
In 1998, Konrady had suffered an injury to her right knee
playing volleyball. She had the anterior cruciate ligament removed
from her knee approximately a year or more before the 18 November
1999 injury. After Dr. Parent performed the ligament removal
surgery, Konrady returned to work full-time, participated intriathlons, and had no further problems with her knee until 18
On 12 May 2000, Konrady underwent arthroscopic surgery on her
right knee. The surgery revealed a cartilaginous defect that
appeared fresh with jagged edges and no surrounding thinning _
findings that Dr. Parent testified are consistent with trauma. Dr.
Parent repaired the cartilage injury and reconstructed the anterior
cruciate ligament from her non-work-related injury. Following
surgery, Konrady had a normal recovery. She was unable to work
from 18 November 1999 through 1 September 2000.
Defendants denied Konrady's workers' compensation claim on the
grounds that her condition was not the result of an accident and,
even if an accident occurred, was not caused by the accident. The
deputy commissioner filed an Opinion and Award on 15 February 2001
granting Konrady temporary total disability benefits for the period
she was out of work and requiring defendants to provide medical
treatment. Defendants appealed to the Full Commission. Like the
deputy commissioner, the Full Commission concluded, in an Opinion
and Award filed 17 July 2002, that Konrady had sustained an injury
by accident arising out of and in the course of her employment,
that she was entitled to temporary total disability benefits and
medical treatment, and that the issue of permanent partial
impairment should be reserved.
Standard of Review
This Court's review of a decision by the Commission "is
limited to determining whether there is any competent evidence to
support the findings of fact, and whether the findings of factjustify the conclusions of law." Cross v. Blue Cross/Blue Shield,
104 N.C. App. 284, 285-86, 409 S.E.2d 103, 104 (1991). If
supported by competent evidence, the Commission's findings are
conclusive on appeal even though there may be evidence to support
contrary findings. Deese v. Champion Int'l Corp., 352 N.C. 109,
115, 530 S.E.2d 549, 552 (2000). The Commission's conclusions of
law are reviewable de novo. Smith v. Housing Auth. of Asheville,
159 N.C. App. 198, 201, 582 S.E.2d 692, 695 (2003).
 Defendants first argue that the Commission erred in
concluding that Konrady suffered an injury by accident on 18
November 1999. A plaintiff is entitled to compensation for an
injury under the Workers' Compensation Act "only if (1) it is
caused by an 'accident,'
and (2) the accident arises out of and in
the course of employment." Pitillo v. N.C. Dep't of Envtl. Health
& Natural Res.
, 151 N.C. App. 641, 645, 566 S.E.2d 807, 811 (2002)
(emphasis added). Defendants question only whether the manner in
which Konrady's injury occurred constituted an "accident" within
the meaning of the Workers' Compensation Act. They do not address
whether the injury arose out of and in the course of employment.
Our Supreme Court has held that an injury does not arise by
accident "[i]f an employee is injured while carrying on his usual
tasks in the usual way[.]" Gunter v. Dayco Corp.
, 317 N.C. 670,
673, 346 S.E.2d 395, 397 (1986). On the other hand, "[a]n
accidental cause will be inferred . . . when an interruption of the
work routine and the introduction thereby of unusual conditions
likely to result in unexpected consequences occurs." Id
. To be anaccident, the incident must have been for the employee an "unlooked
for and untoward event." Cody v. Snider Lumber Co.
, 328 N.C. 67,
70, 399 S.E.2d 104, 106 (1991).
In arguing that the Commission erred in concluding that
Konrady was injured as a result of an "accident," defendants have
assigned error to two of the Commission's findings of fact:
4. As plaintiff exited the van at the
hotel, the space between the last step and the
ground was shorter than the space between the
other steps. The van had also parked such
that the steps overlapped the curb. As a
result, plaintiff "misstepped" and her right
leg hit the ground harder than she expected.
In addition to the shortened space between the
steps, plaintiff expected a greater distance
to the road, but instead stepped onto the
elevated curb. Plaintiff immediately felt a
sharp pain in her right knee.
. . . .
14. The greater weight of the medical
evidence is that plaintiff sustained a
compensable injury to her right knee arising
out of and in the course of her employment
with defendant-employer. Plaintiff's misstep
exiting the van was an unexpected and
unforeseen occurrence, constituting an unusual
condition. During plaintiff's twenty-eight
year career as a flight attendant, plaintiff
averaged approximately twelve layovers per
month where her job required her to stay
overnight at defendant-employer's designated
hotels. Plaintiff could not recall ever
encountering a half-step, or shortened step as
on 18 November 1999 before while existing
[sic] a van. Plaintiff routinely traveled in
courtesy vans while going to and from a hotel.
Defendants have also assigned error to the Commission's conclusions
of law based on these findings:
1. The van pulling closer to the curb
and the shorter distance between the bottom
step caused plaintiff to misstep. This was an
unforeseen circumstance, unusual condition and
an interruption of plaintiff's normal workroutine. Plaintiff had never encountered this
situation during twenty-eight years of
employment with defendant-employer.
2. On 18 November 1999, plaintiff
sustained an injury by accident arising out of
and in the course of her employment with
defendant-employer. G.S. § 97-2(6).
In asking this Court to set aside the Commission's decision,
defendants argue that "[e]xiting the van was not an 'unlooked for
or untoward event' and there was no interruption in plaintiff's
work routine." Defendants point to Konrady's testimony that vans
were of varying sizes and types so that each time Konrady stepped
off from a van, it was potentially different. They argue that this
testimony requires reversal under Landry v. U.S. Airways, Inc., 356
N.C. 419, 571 S.E.2d 586, rev'g per curiam for the reasons in 150
N.C. App. 121, 125, 563 S.E.2d 23, 26 (2002) (Hunter, J.,
Defendants have, however, overlooked the importance of the
standard of review in Landry. In Landry, in contrast to this case,
the Commission had concluded that no accident occurred. Judge
Hunter's dissent, as adopted by the Supreme Court, was founded on
that standard of review: "I would hold that the Commission's
findings of fact, which are supported by competent evidence, are
sufficient to support its conclusion of law that plaintiff did not
sustain a compensable injury because there were no 'unusual
conditions likely to result in unexpected consequences.' I
therefore respectfully dissent." 150 N.C. App. at 125, 563 S.E.2d
The plaintiff in Landry had been injured when grabbing a
mailbag that was heavier than expected. Id. at 122, 563 S.E.2d at24. The Commission based its conclusion that the plaintiff's
injury did not result from an accident on its findings that the
plaintiff's job required him to lift weights of up to 400 pounds;
that plaintiff never knew prior to lifting mailbags how much they
weighed; that it was not unusual for mailbags to be extremely
heavy; and that plaintiff was engaged in his normal duties and
using his normal motions when injured. Id. at 126, 563 S.E.2d at
27. Judge Hunter concluded that those findings were supported by
competent evidence and "in and of themselves support the
Commission's conclusion that plaintiff was not injured as a result
of any unusual condition." Id.
While the Commission in Landry found that it was not unusual
for the plaintiff to lift unexpectedly heavy bags, the Commission
in this case found that the van pulling closer to the curb and the
shorter distance between the bottom step and the ground were an
unforeseen circumstance and unusual condition and that Konrady
could not recall ever before having encountered that situation.
These findings are, as were those in Landry, supported by competent
In deciding whether the Commission's findings are sufficient
to support its conclusion that an accident occurred, the issue is
not whether exiting vans is routine for Konrady, as defendants
contend, but whether something happened as she was exiting that
particular van on that specific occasion that caused her to exit
the van in a way that was not normal. Were there any unexpected
conditions resulting in unforeseen circumstances? Here, the
unexpected conditions found by the Commission included a step thatwas shorter than other steps and the overlapping of the step with
the curb. The unforeseen circumstances found by the Commission
were that the step down from the van was much shorter than Konrady
anticipated, causing her to "misstep" and hit the ground harder
than she expected.
This Court has previously held that similar findings of fact
were sufficient to support a conclusion that an accident occurred.
In Dolbow v. Holland Industrial, Inc., 64 N.C. App. 695, 308 S.E.2d
335 (1983), disc. review denied, 310 N.C. 308, 312 S.E.2d 651
(1984), the Commission found that the plaintiff was engaging in his
job of unloading rods from a truck at a job site "when he stepped
into a depression, injuring his knee." Id. at 697, 308 S.E.2d at
336. The Court held that this finding of fact, together with
findings relating to the nature of the injury, were sufficient to
support an award of compensation. We cannot distinguish Konrady's
"misstep" in exiting a van from Dolbow's stepping into a
This Court has also concluded that an "accident" occurred in
other cases involving an employee entering or exiting a vehicle, so
long as the conditions were different from the routine. In Coffey
v. Automatic Lathe Cutterhead, 57 N.C. App. 331, 291 S.E.2d 357,
disc. review denied, 306 N.C. 555, 294 S.E.2d 222 (1982), the
Commission found that a salesman injured his back while exiting his
car when he reached for a clipboard that had fallen off the car
seat. This Court reversed the Commission's conclusion that no
accident had occurred because the Commission's "own findings show
the unusual circumstance of the clipboard being off the seat . . .[and the employee's] normal manner or routine of exiting his car
was interrupted by the unusual location of the clipboard." Id. at
334, 291 S.E.2d at 359. Because the clipboard had fallen, the
plaintiff "experienced an accidental injury upon the interruption
of his usual routine of work and the introduction of unusual
conditions likely to result in unexpected consequences." Id. at
335, 291 S.E.2d at 360.
In Ross v. Young Supply Co., 71 N.C. App. 532, 536, 322 S.E.2d
648, 651-52 (1984), this Court found an interruption of the work
routine and the introduction of unusual conditions when a salesman
slipped as he put most of his weight on his left leg while trying
to wedge himself behind the steering wheel of his car. This Court
held, "The facts here tend to show that plaintiff was not entering
his automobile in the manner in which he normally entered his
automobile." Id., 322 S.E.2d at 652.
Likewise, Konrady did not exit the van in the manner in which
she normally exited. The unusual conditions of a clipboard sliding
off a car seat or a steering wheel being too close to the seat are
not materially different from the condition of a step being
unexpectedly short and too close to the ground.
Defendants point to Bowles v. CTS of Asheville, Inc., 77 N.C.
App. 547, 550, 335 S.E.2d 502, 504 (1985), arguing that an
otherwise "unusual" activity can become part of the normal work
routine so as not to result in an interruption of the work routine
or an injury by accident. There is no indication in this record
that the unusual condition of "half steps" or the unusual
circumstance of engaging in "missteps" had become part of Konrady'snormal work routine, even if plaintiff's "normal" routine included
frequent van trips. See Calderwood v. Charlotte-Mecklenburg Hosp.
Auth., 135 N.C. App. 112, 116, 519 S.E.2d 61, 64 (1999) (reversing
Commission's denial of compensation because fact that plaintiff's
job responsibilities included task that resulted in injury was not
dispositive when task on this occasion involved non-routine
circumstances), disc. review denied, 351 N.C. 351, 543 S.E.2d 124
Under the standard of review applicable to appeals from the
Industrial Commission, we hold that the Commission's conclusion
that plaintiff's injury resulted from an accident is supported by
its findings of fact, which are in turn supported by competent
 Defendants contend that even if plaintiff suffered an
accident, she has not proven that her injury was causally related
to the "short step." In a workers' compensation case, "[t]he
injury by accident must be the proximate cause, that is, an
operating and efficient cause, without which [the disability] would
not have occurred." Gilmore v. Hoke County Bd. of Educ., 222 N.C.
358, 365, 23 S.E.2d 292, 296 (1942).
Defendants did not, however, assign error to the Commission's
following findings of fact relating to causation:
10. As a result of plaintiff's 18
November 1999 work-related incident, plaintiff
underwent arthroscopic surgery on 12 May 2000.
. . .
11. Following surgery, plaintiff had a
normal recovery. As a result of plaintiff's
work-related incident on 18 November 1999,plaintiff was unable to work from 18 November
1999 through 1 September 2000. . . .
Because of the lack of any assignment of error, these findings of
fact are binding on appeal. Fennell v. N.C. Dep't of Crime Control
& Pub. Safety, 145 N.C. App. 584, 596, 551 S.E.2d 486, 494 (2001)
("As plaintiffs did not assign error to the above findings of fact,
they are binding on appeal."), cert. denied, 355 N.C. 285, 560
S.E.2d 800 (2002). These findings establish that the 18 November
1999 accident caused her need for surgery and caused her temporary
Even though the question of the sufficiency of the evidence as
to causation is not properly before this Court, our review of the
record reveals ample evidence from Dr. Parent to support the
Commission's finding and conclusion that the accident on 18
November 1999 caused Konrady's disability. When asked if the
changes he observed in her knee after November 1999 are more often
associated with trauma or with general degeneration, Dr. Parent
stated, "Oh, I think they're _ her trauma." He also directly
addressed the causation question:
Q. Okay. Do you have an opinion satisfactory
to yourself and to a reasonable degree of
medical certainty as to whether the _ the
symptoms that you observed in November of
1999 and thereafter were more likely than
not caused by an accident that she
described to you on November 18, 1999?
A. Yes. I think that's the cause.
Q. Okay. And what's the basis for that
A. The arthroscopy.
. . . .
Q. Okay. And specifically, if you would,
just tell us briefly what those findings
were that lead to your opinion that it
was caused by trauma as opposed to _ as
opposed to anything else.
A. Well, she had a very focal cartilaginous
injury and those occur from trauma.
Dr. Parent's testimony thus provides competent medical evidence
based on his physical examination sufficient to support the
Commission's findings of fact regarding causation.
 Finally, defendants argue that the Commission erred in not
apportioning plaintiff's medical expenses and disability between
the November 1999 incident and Konrady's previous ACL tear. This
argument was not the subject of any assignment of error and,
therefore, is not properly before us.
In any event, although apportionment may be appropriate when
a work-related and a non-compensable condition combine to cause
disability, an employee may receive "full compensation for total
disability without apportionment when the nature of the employee's
total disability makes any attempt at apportionment between work-
related and non-work-related causes speculative." Errante v.
Cumberland County Solid Waste Mgmt.
, 106 N.C. App. 114, 119, 415
S.E.2d 583, 586 (1992).
(See footnote 1)
The Commission may also decline to
apportion when the record lacks evidence attributing a percentage
of the employee's total incapacity to her compensable injury. Counts v. Black & Decker Corp.
, 121 N.C. App. 387, 390-91, 465
S.E.2d 343, 346, disc. review denied,
343 N.C. 305, 471 S.E.2d 68
Defendants have pointed to no evidence in the record that
allocates the medical expenses or the degree of temporary
disability between the two conditions. Dr. Parent's testimony
indicates that the surgery was performed to diagnose and repair the
knee injury attributable to the 18 November 1999 accident and that
the ACL reconstruction was simply done at the same time. Plaintiff
testified, "I decided that since I was going to have the cartilage
damage repaired, that I might as well go on and have a ligament
replacement while he was in there." With respect to the
disability, Dr. Parent testified that he would expect the recovery
time for surgery to repair cartilage damage and surgery for ACL
reconstruction to be "about the same, depending on the person" and
there was "[p]robably not" any increase in the recovery time.
Because of the lack of evidence of how the expenses or disability
should be allocated, the Commission was not required to apportion.
Judges MCGEE and BRYANT concur.
Plaintiff correctly contends that apportionment is not
appropriate when a work-related condition aggravates or accelerates
a non-work-related condition. Id.
Our review of the record does
not, however, reveal any evidence that Konrady's temporary
disability was the result of an aggravation of a prior condition
rather than a new condition.
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