The opinion
An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A p p e l l a t e P r o c e d u r e .
NO. COA13-651
NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2014
BRETT ALLSBROOK,
Employee,
Plaintiff
v. From The North Carolina
Industrial Commission
I.C. No. W13767
ILLINOIS TOOL WORKS/WILSONART,
Employer,
BROADSPIRE,
Carrier,
Defendants
Appeal by plaintiff from opinion and award entered 22
October 2012 by the North Carolina Industrial Commission. Heard
in the Court of Appeals 6 November 2013.
Brett M. Allsbrook, pro se, for plaintiff-appellant.
Hedrick Gardner Kincheloe & Garofalo, LLP, by M. Duane
Jones and Elias W. Admassu, for defendants-appellees.
DAVIS, Judge.
Brett Allsbrook (“Plaintiff”) appeals from the Opinion and
Award of the North Carolina Industrial Commission (“the Full
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Commission” or “the Commission”) denying his workers’
compensation claim against Illinois Tool Works/Wilsonart
(“Defendant”). On appeal, Plaintiff primarily argues that the
Commission failed to make sufficient findings of fact to support
its determination that his injury was not a compensable injury
by accident. After careful review, we affirm the Commission’s
opinion and award.
Factual Background
At the time of the hearing, Plaintiff was 52 years old. In
November 2000, Plaintiff was hired by Defendant - a manufacturer
of high-pressure decorative laminate and backer boards - as a
packer, and in February 2008, he was reassigned to the position
of saw helper. He continued to work in that position until
February 2009. As a saw helper, Plaintiff’s responsibilities
included working in the finishing area and assisting saw
operators in cutting material to specific measurements. While
working for Defendant, Plaintiff used two different saws to cut
laminate and backer boards, a Schelling saw and a Mereen-Johnson
saw.
The Schelling saw is a newer saw and is computer-
controlled, allowing employees to load the laminate while the
saw automatically pushes and pulls the laminate through the
machine to make the appropriate cuts. The Mereen-Johnson saw is
an older saw that requires more physical force by the operator
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than the Schelling saw and is used as a back-up to the Schelling
saw. The Mereen-Johnson saw uses air pressure to help guide the
laminate and backer boards through the cutting process. When
using the Mereen-Johnson saw, two employees load the laminate or
backer board and then push it to other employees who guide the
laminate or backer board through the cutting process. After the
cutting process is complete, an employee pushes the material to
other employees who unload the material from the saw.
On 26 February 2009, Plaintiff was working with several
other employees to cut five foot by ten foot by one inch backer
boards with the Mereen-Johnson saw. In order to achieve the
necessary cuts, two employees would pull the backer board onto
the air table, cut the ends, and then push the backer board to
Plaintiff. Plaintiff would then rearrange the backer board to
cut the other end and push the backer board down the air table
to other employees, who would then remove it from the waist-high
air table. Plaintiff alleges that near the end of his shift on
26 February 2009, he was bent at the waist at approximately a
90-degree angle using the Mereen-Johnson saw, when he felt a pop
in his chest.
On 27 March 2009, Plaintiff gave a recorded statement to
Mollie Murphy, a representative of his employer’s workers’
compensation carrier. In this recorded statement, he stated the
following, as captured in the Commission’s finding of fact 7:
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Plaintiff indicated “We put in full size
laminate which could be as large as 5 foot
by 12 foot.” Plaintiff further indicated
that at the time of the alleged accident he
was working on the Mereen-Johnson saw and
that he had worked on that saw prior to
February 26, 2009. When asked by Ms.
Murphy, “Marine [sic] Johnson though has
been in operation still and there are
occasions that you work on it just like you
work on the um . . . the newer model?”
Plaintiff responded in the affirmative.
Plaintiff indicated that boards he was
working with at the time of the alleged
accident measured 5 feet by 8 to 10 feet,
less than the maximum size Plaintiff
indicated he worked with. Plaintiff
described the angle at which he pushed
boards on the Mereen-Johnson saw as
“awkward” in that he ended up leaning at
almost a 90 degree angle due to the height
of the table. However, this was the method
Plaintiff normally used when pushing boards,
and he stated with respect to the push in
question that it was a normal push for him
and that it was not uneven or any harder
than he typically pushed.
After being treated by his employer’s physician, Plaintiff
sought treatment from Dr. Werner C. Brooks (“Dr. Brooks”), a
board-certified orthopedic surgeon, on 11 March 2009. Plaintiff
received treatment for A.C. joint and sternoclavicular joint
strains and was ultimately diagnosed with a labral tear. On 22
May 2009, Dr. Brooks performed a right shoulder arthroscopy,
acromioplasty, distal clavicectomy, and labral tendon repair on
Plaintiff.
Plaintiff continued to complain of problems with his right
shoulder and sternoclavicular joint following his treatment with
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Dr. Brooks. On 27 July 2011, another orthopedic surgeon, Dr.
Christopher L. Elder (“Dr. Elder”), examined Plaintiff. Dr.
Elder diagnosed Plaintiff with chronic “right shoulder pain and
mechanical symptoms status post arthroscopy with a labral repair
and subachromial decompression, distal clavicle excision” and
“continued right S.C. joint pain, swelling, and instability with
manageable symptoms.” Dr. Elder was also concerned that
Plaintiff had a recurrent labral tear and scheduled a right
shoulder arthroscopy for 9 September 2011 in order to make a
diagnosis. Dr. Elder opined that Plaintiff’s S.C. joint
symptoms were related to his initial injury in February 2009 and
that his current symptoms were related to the shoulder surgery
performed by Dr. Brooks. Plaintiff has not worked for Defendant
since April 2009.
On 14 June 2011, a hearing was held before Deputy
Commissioner Keisha M. Lovelace. On 29 March 2012, the deputy
commissioner entered an opinion and award denying Plaintiff’s
claim. Plaintiff appealed to the Full Commission on 19 June
2012. On 22 October 2012, the Full Commission entered its
opinion and award affirming the deputy commissioner’s decision.
Plaintiff appealed the Commission’s decision to this Court.
Analysis
Our review of an Opinion and Award by the Industrial
Commission is “limited to consideration of whether competent
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evidence supports the Commission’s findings of fact and whether
the findings support the Commission’s conclusions of law.”
Richardson v. Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660,
669 S.E.2d 582, 584 (2008). With regard to the Commission’s
findings of fact, this Court’s “duty goes no further than to
determine whether the record contains any evidence tending to
support the finding[s].” Id. (citation and quotation marks
omitted). The findings of fact made by the Commission are
conclusive on appeal if supported by competent evidence even if
there is also evidence that would support a contrary finding.
Nale v. Ethan Allen, 199 N.C. App. 511, 514, 682 S.E.2d 231,
234, disc. review denied, 363 N.C. 745, 688 S.E.2d 454 (2009).
The Commission’s conclusions of law, however, are reviewed de
novo. Gregory v. W.A. Brown & Sons, ___ N.C. App. ___, ___, 713
S.E.2d 68, 74, disc. review denied, ___ N.C. ___, 719 S.E.2d 26
(2011).
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). The plaintiff bears the burden of proving both elements
of the claim. Morrison v. Burlington Indus., 304 N.C. 1, 13,
282 S.E.2d 458, 467 (1981). Here, neither party disputes that
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Plaintiff’s injury arose out of and in the course of his
employment. Rather, the sole issue on appeal is whether
Plaintiff’s injury occurred as a result of an “accident” within
the meaning of the Workers’ Compensation Act.
The terms “accident” and “injury” are separate and distinct
concepts. Gray v. RDU Airport Auth., 203 N.C. App. 521, 525,
692 S.E.2d 170, 174 (2010). An accident is “‘an unlooked for
and untoward event which is not expected or designed by the
person who suffers the injury,’” that involves “‘the
interruption of the routine of work and the introduction thereby
of unusual conditions likely to result in unexpected
consequences.’” Calderwood v. Charlotte-Mecklenberg Hosp.
Auth., 135 N.C. App. 112, 115, 519 S.E.2d 61, 63 (1999) (quoting
Adams v. Burlington Indus., 61 N.C. App. 258, 260, 300 S.E.2d
455, 456 (1983)), disc. review denied, 351 N.C. 351, 543 S.E.2d
124 (2000).
“If an employee is injured while carrying on usual tasks in
the usual way the injury does not arise by accident.” Gunter v.
Dayco Corp., 317 N.C. 670, 673, 346 S.E.2d 395, 397 (1986).
However, “when an interruption of the employee’s normal work
routine occurs, introducing unusual conditions likely to result
in unexpected consequences, an accidental cause will be
inferred. The essence of an accident is its unusualness and
unexpectedness . . . .” Gray, 203 N.C. App. at 525, 692 S.E.2d
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at 174 (2010) (internal citation and quotation marks omitted).
In addition, “once an activity, even a strenuous or otherwise
unusual activity, becomes a part of the employee’s normal work
routine, an injury caused by such activity is not the result of
an interruption of the work routine or otherwise an ‘injury by
accident’ under the Workers’ Compensation Act.” Bowles v. CTS
of Asheville, 77 N.C. App. 547, 550, 335 S.E.2d 502, 504 (1985).
Among the findings of fact made by the Commission were the
following:
3. As a saw helper, Plaintiff worked in the
finishing area assisting saw operators in
cutting material to specific measurements.
Defendant-Employer uses two different saws
to cut laminate and backer boards, a
Schelling saw and a Mereen-Johnson saw.
. . . .
5. The Mereen-Johnson saw is an older saw
than the Schelling saw. Cutting materials
with the Mereen-Johnson saw is more
physically demanding than with the Schelling
saw. The Mereen-Johnson saw uses air
pressure to help guide the laminate and
backer boards through the cutting process,
however, the saw operators and saw helpers
have to use more effort to push and pull the
material through the Mereen-Johnson saw.
Defendant-Employer cuts 5 foot by 10 foot
pieces of laminate weighing approximately 18
to 19 pounds and 5 foot by 10 foot pieces of
backer board weighing at least 100 pounds
and up to approximately 400 pounds. When
using the Mereen-Johnson saw, two employees
load the laminate or backer board, and then
push it to other employees who guide the
laminate or backer board through the cutting
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process. After the cutting process is
complete, an employee pushes the material to
other employees who unload the material from
the saw. The Mereen-Johnson saw is used as a
"back-up" saw to help in times of heavy
work-loads or to cut backer boards and other
items not requiring the same level of
precision and accuracy as laminate.
6. On February 26, 2009, Plaintiff was
working with several other employees to cut
5 foot by 10 foot by 1 inch thick backer
boards on the Mereen-Johnson saw. In order
to achieve the necessary cuts, two employees
pulled the backer board onto the air table,
cut the ends or sides, and then pushed the
backer board to Plaintiff. Plaintiff then
rearranged the backer board to cut the other
end and then pushed the backer board down
the air table to other employees who removed
it from the air table and placed it on a
pallet. To push the backer board after
making his cuts, Plaintiff would lean over
the air table, which was waist-high, bend at
approximately a 90 degree angle, and push
the backer board. Plaintiff alleges that,
while pushing a board near the end of his
shift on February 26, 2009, he felt a pop in
his chest.
7. On March 27, 2009, Plaintiff gave a
recorded statement to Mollie Murphy from
Defendant-Carrier. When describing his
position to Ms. Murphy, Plaintiff indicated
"We put in full size laminate which could be
as large as 5 foot by 12 foot." Plaintiff
further indicated that at the time of the
alleged accident he was working on the
Mereen-Johnson saw and that he had worked on
that saw prior to February 26, 2009. When
asked by Ms. Murphy, "Marine (sic) Johnson
though has been in operation still and there
are occasions that you work on it just like
you work on the um...the newer model?"
Plaintiff responded in the affirmative.
Plaintiff indicated that boards he was
working with at the time of the alleged
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accident measured 5 feet by 8 to 10 feet,
less than the maximum size Plaintiff
indicated he worked with. Plaintiff
described the angle at which he pushed
boards on the Mereen-Johnson saw as
"awkward" in that he ended up leaning at
almost a 90 degree angle due to the height
of the table. However, this was the method
Plaintiff normally used when pushing boards,
and he stated with respect to the push in
question that it was a normal push for him
and that it was not uneven or any harder
than he typically pushed. Relative to the
circumstances surrounding his alleged
accident, Plaintiff went on to state, "So um
again nothing out of the ordinary."
8. Plaintiff testified at the hearing before
the Deputy Commissioner that at the time the
alleged accident occurred, he pushed the
backer board in the same manner he normally
did when working on the Mereen-Johnson saw.
Plaintiff contended, however, that he did
not use the Mereen-Johnson saw on a regular
basis, and that at times the saw went unused
for months at a time.
9. Plaintiff's testimony about the frequency
with which the Mereen-Johnson saw was used
is in direct contradiction to the testimony
of Harold Whitted and Charles Dennis Clark.
Mr. Whitted is Plaintiff's former supervisor
and no longer works for Defendant-Employer.
He testified that using the Mereen-Johnson
saw in the manner Plaintiff testified he did
on February 26, 2009 was a normal job duty
for an employee in Plaintiff's position. Mr.
Clark, who is currently the manager for
Defendant-Employer's Fletcher facility, was
previously the manager of the pressing
department, which included the finishing
area where Plaintiff worked. He testified
that Plaintiff used both the Schelling saw
and the Mereen-Johnson saw on a regular
basis, and that the duties Plaintiff
testified he was performing at the time he
was injured were consistent with Plaintiff's
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normal job duties.
. . . .
15. The Full Commission gives greater weight
to the testimony of Mr. Whitted and Mr.
Clark and finds, based upon the
preponderance of the evidence in view of the
entire record that, at the time his injury
occurred on February 26, 2009, Plaintiff was
working with other employees to cut material
which was consistent in size with the
materials with which he normally worked.
Plaintiff's use, along with the other
employees, of the Mereen-Johnson saw was
also not unusual, nor was the manner in
which he pushed the board any different from
the manner in which Plaintiff typically
pushed boards when working on the Mereen-
Johnson saw. As such, the Full Commission
finds that Plaintiff was engaged in his work
duties in his usual and . . . customary
manner, and there was no interruption of his
normal work routine likely to result in
unexpected consequences.
Based on these factual findings, the Commission issued the
following conclusions of law:
1. Under the North Carolina Workers’
Compensation Act, an injury arising out of
and in the course of employment is
compensable only if it is caused by an
“accident” and the claimant bears the burden
of proving an accident has occurred. An
accident is an unlooked for and untoward
event which is not expected or designed by
the person who suffers the injury. An
accident therefore involves the interruption
of the routine of work and the introduction
thereby of unusual conditions likely to
result in unexpected consequences.
2. In the instant case, Plaintiff has
failed to establish that he sustained an
injury by accident within the meaning of the
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Act on February 26, 2009. N.C. Gen. Stat. §
97-2(6). Plaintiff was performing his
regular job in his normal, usual manner at
the time of the injury. Although Plaintiff
may have assumed an awkward body position
when pushing the heavy board, the position,
and the size of the board were not unusual,
nor was the use of the Mereen-Johnson saw to
cut the board. Plaintiff had previously
worked with materials of the same size, as
evidenced by his recorded statement, and,
per his statement, there was nothing unusual
about the push he made at the time he felt
the pop and the body position resulting from
the push saw was the body position he
normally assumed when pushing boards on the
Mereen-Johnson saw.
As a result of these findings of fact and conclusions of
law, the Commission ultimately determined that ”Plaintiff failed
to establish that he sustained an injury by accident within the
meaning of the [Workers’ Compensation] Act.”
In arguing for the reversal of the Commission’s decision,
Plaintiff claims there is “no evidence” supporting the
Commission’s finding that Plaintiff was not injured by accident
and that he was instead carrying out his regular job duties in
his usual manner. Plaintiff attempts to discredit the testimony
of Mr. Harold Whitted (“Mr. Whitted”) and Mr. Dennis Clark (“Mr.
Clark”), both of whom testified that the use of the Mereen-
Johnson saw in the manner described by Plaintiff was a normal
job duty for him, by citing the witnesses’ failure to produce a
log book regarding the number of hours and number of times the
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Mereen–Johnson saw was used in order to corroborate their
testimony.
In making this argument, Plaintiff asks us to substitute
our own views of the witnesses’ credibility for those of the
Commission. This we cannot do. Our Supreme Court has made
clear that:
(1) the Full Commission is sole judge of the
weight and credibility of the evidence, and
(2) appellate 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).
Moreover, when making determinations on credibility, the
Industrial Commission is not obligated to explain why it deemed
certain evidence credible or not credible. Id. This is so
because
[r]equiring the Commission to explain its
credibility determinations and allowing the
Court of Appeals to review the Commission’s
explanation of those credibility
determinations would be inconsistent with
our legal system’s tradition of not
requiring the fact finder to explain why he
or she believes one witness over another or
believes one piece of evidence is more
credible than another.
Id.
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Here, the Commission’s findings of fact make clear that it
deemed Mr. Whitted’s and Mr. Clark’s testimony to be credible.
In finding of fact 15, the Commission stated:
15. The Full Commission gives greater weight
to the testimony of Mr. Whitted and Mr.
Clark and finds, based upon the
preponderance of the evidence in view of the
entire record that, at the time his injury
occurred on February 26, 2009, Plaintiff was
working with other employees to cut material
which was consistent in size with the
materials with which he normally worked.
Plaintiff's use, along with the other
employees, of the Mereen-Johnson saw was
also not unusual, nor was the manner in
which he pushed the board any different from
the manner in which Plaintiff typically
pushed boards when working on the Mereen-
Johnson saw. As such, the Full Commission
finds that Plaintiff was engaged in his work
duties in his usual and . . . customary
manner, and there was no interruption of his
normal work routine likely to result in
unexpected consequences.
Competent evidence supports this finding. Mr. Whitted,
Plaintiff’s former supervisor, testified that any employees who
worked with the saws “could work on either saw at you know,
given times.” He also responded affirmatively when asked if
both saws were rotated in their use by Plaintiff’s department.
Mr. Whitted explained that
[t]he initial saw crew . . . could be asked
to work on either saw. Primarily the
Schelling saw, that was our primary saw, but
depending on what needed to be cut or if we
needed assistance from other people, then
we’d try to split the saw personnel up to
work with the less experienced people, and
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so they could work on either saw at, you
know, given times.
Similarly, Mr. Clark, the manager of the Fletcher facility,
also testified in the affirmative when asked if he agreed that
both the “Schelling and the Mereen-Johnson saws were used on a
regular basis by the staff, including Plaintiff.” Mr. Clark
further testified that both the physical activity of “pushing
and pulling” and the use of both saws was consistent with what
the “normal job involved for [Plaintiff] and other people in
that department.”
This testimony by Mr. Whitted and Mr. Clark serves as
competent evidence that directly supports the Commission’s
finding that, at the time of the injury, Plaintiff was
performing his work duties in his usual and customary manner.
This, in turn, supports the Commission’s ultimate conclusion
that Plaintiff failed to show that he sustained an injury by
accident within the meaning of the Workers’ Compensation Act.
Plaintiff also contends that his statements that he had
worked on the Mereen-Johnson saw previously did not establish
any “regularity” and that the Commission erred in finding that
this was part of his normal job duties. However, Plaintiff
admits in his brief that “it is clear from the preponderance of
the evidence that [he] had previously worked on the Mereen-
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Johnson saw.” This admission by Plaintiff simply adds to the
competent evidence supporting the Commission’s determination.
Conclusion
For the reasons stated above, the Opinion and Award of the
Full Commission is affirmed.
AFFIRMED.
Judges ELMORE and McCULLOUGH concur.
Report per Rule 30(e).