# Ruffin v. Compass Group USA > Court of Appeals of North Carolina · June 4, 2002 · 150 N.C. App. 480 URL: https://www.frixlaw.com/law-library/cases/9570589 ## Case - **Full name:** BEVERLY A. RUFFIN, Employee-Plaintiff v. COMPASS GROUP USA, Employer, CNA INSURANCE CO., Insurer, Defendants - **Court:** Court of Appeals of North Carolina - **Decided:** June 4, 2002 - **Citations:** 150 N.C. App. 480; 563 S.E.2d 633; 2002 N.C. App. LEXIS 592 - **Precedential status:** Published - **Opinion:** Dissent by Tyson - **Judges:** Timmons-Goodson, Hudson, Tyson - **Cited by:** 20 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9570589 ## Opinion text TYSON, Judge, dissenting. I do not find competent evidence in the record to support the Commission’s finding and conclusion that plaintiff suffered a com-pensable back injury. I disagree with the majority’s application of a “specific traumatic incident” under N.C.G.S. § 97-2(6) to the facts of this case. Therefore, I respectfully dissent. In order to be compensable under the Workers’ Compensation Act (“Act”), an injury must result from an “accident arising out of and in the course of the employment.” N.C. Gen. Stat. § 97-2 (6) (2001). An accident is an “unlooked for and untoward event which is not expected or designed by the injured employee.” Edwards v. Piedmont Publ’g Co., 227 N.C. 184, 186 , 41 S.E.2d 592, 593 (1947) *487 (citations omitted). In 1983, the General Assembly amended N.C.G.S. § 97-2(6) to provide that the term “injury” as applied to back injuries, means an injury resulting from a “specific traumatic incident of the work assigned.” See Richards v. Town of Valdese, 92 N.C. App. 222, 224 , 374 S.E.2d 116, 118 (1988) (citing N.C. Gen. Stat. § 97-2 (6)). An employee may show a back injury by proving either (1) injury by accident or (2) injury arising from a specific traumatic incident. Id. This amendment eliminated the requirement that a back injury be the result of an “accident.” However, “injury by accident” still applies to injuries to parts of the body other than the back. Id. Here, plaintiff repeatedly testified that she felt a “cramp,” “catch,” or “pull” in her left “shoulder” or “shoulder blade.” Plaintiff never testified to an injury to her neck. The majority opinion relies on the testimony of Dr. Miller. Dr. Miller was asked: if [plaintiff] previously testified that while working on or about May 8^\ [sic] 1998, she felt a catch in her neck while lifting a box which contained approximately four gallons of syrup, do you have an opinion satisfactory to yourself and to a reasonable degree of medical certainty that this incident could or might have caused her injuries, which included disk [sic] herniations at the C4-5 — C4-C5, C5-C6, and C6-C7 levels? (Emphasis supplied.) Dr. Miller’s testimony was based on facts not in evidence. His opinion was not competent testimony of a back injury. See Hubbard v. Quality Oil Co. of Statesville, Inc., 268 N.C. 489, 494 , 151 S.E.2d 71, 76 (1966) (“Expert testimony on a state of facts not supported by the evidence is inadmissible.”). “[T]here must be some unforeseen or unusual event other than the bodily injury itself’ for an incident to constitute an accident within the meaning of the Act. Rhinehart v. Roberts Super Mkt., 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.” Gunter v. Dayco Corp., 317 N.C. 670, 673 , 346 S.E.2d 395, 397 (1986). If an interruption of the work routine occurs introducing unusual conditions likely to result in unexpected consequences, an accidental cause will be inferred. Id. Here, plaintiff failed to show a compensable injury by accident. Plaintiff informed her treating chiropractor that she was injured from repetitive motion. Plaintiff testified on cross-examination that her injury occurred from “constantly dofing] a job every day, ten to *488 twelve hours a day.” Plaintiff further testified that on 9 May 1998, the date of the incident, she had only one vendor to service and that she lifted forty-pound boxes of syrup everyday as a part of her normal work routine. The majority opinion, in a footnote, correctly cites that “an extra or unusual degree of exertion by an employee while performing a job may constitute the unforeseen or unusual event or condition necessary to make any resulting injury an injury ‘by accident.’ ” Jackson v. Fayetteville Area Sys. of Transp., 88 N.C. App. 123, 126 , 362 S.E.2d 569, 571 (1987) (citing Jackson v. North Carolina State Highway Commission, 272 N.C. 697 , 158 S.E.2d 865 (1968); Gabriel v. Town of Newton, 227 N.C. 314 , 42 S.E.2d 96 (1947); Gladson v. Piedmont Stores, 57 N.C. App. 579 , 292 S.E.2d 18 , disc. rev. denied, 306 N.C. 556 , 294 S.E.2d 370 (1982); Bingham v. Smith’s Transfer Corp., 55 N.C. App. 538 , 286 S.E.2d 570 (1982); Porter v. Shelby Knit, Inc., 46 N.C. App. 22 , 264 S.E.2d 360 (1980)). The facts of the present case are distinguishable. In Jackson, the plaintiff had unusual difficulty in opening a money collection box. Jackson, 88 N.C. App. at 124 , 362 S.E.2d at 570 . Jackson testified that she had no problem with any box until this particular one, that she could not recall ever having a money box that tough to open or that heavy, and that she had not previously had to exert as much pressure to get one to open. Id. at 125 , 362 S.E.2d at 570 . Similarly in Porter , the plaintiff suffered an injury by accident when he experienced pain while straining to withdraw a rod from a roll of cloth which was “extra tight” and “unusually hard” to pull out. Porter, 46 N.C. App. at 25 , 264 S.E.2d at 362 . There was no evidence of such unusual exertion here. Plaintiff did not testify to any unusual exertion in sliding and lifting the syrup box onto the handcart. The majority opines that the addition of stops on plaintiffs vendor route amounted to “an extra or unusual degree of exertion.” The evidence does not support this conclusion. Plaintiff testified that she had been servicing the additional stops for three weeks prior to the day of the incident and that she was servicing only one vendor on that day. See Bowles v. CTS of Asheville, Inc., 77 N.C. App. 547, 550 , 335 S.E.2d 502, 504 (1985) (“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’ ”) (citations omitted). *489 The evidence fails to establish that there was an interruption of plaintiffs regular work routine nor an unusual degree of exertion to qualify the incident as an injury by accident. See Swindell v. Davis Boat Works, Inc., 78 N.C. App. 393, 397 , 337 S.E.2d 592, 594 (1985) (no matter how great the injury, if it occurred under normal working conditions and the employee was injured while performing his regular duties in the usual and customary manner, no accident has occurred). The Commission’s findings and conclusions are not supported by the evidence. I would reverse the Opinion and Award of the Commission. Accordingly, I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9570589. Public record. Not legal advice.