Barnette v. Lowe's Home Ctrs., Inc.

• Court: North Carolina Court of Appeals
• Writing for the Court: STEPHENS, Judge.
• Citation: Barnette v. Lowe's Home Ctrs., Inc., 785 S.E.2d 161, 247 N.C. App. 1 (N.C. App. 2016)
• Decision Date: 19 April 2016
• Docket Number: No. COA15–938.,COA15–938.
• Parties: Joseph W. BARNETTE, Employee, Plaintiff, v. LOWE'S HOME CENTERS, INC., Employer, Self–Insured (Sedgwick Claims Management Services, Inc., Administrator), Defendant.

247 N.C.App. 1

785 S.E.2d 161

Joseph W. BARNETTE, Employee, Plaintiff,

v.LOWE'S HOME CENTERS, INC., Employer, Self–Insured (Sedgwick Claims Management Services, Inc., Administrator), Defendant.

No. COA15–938.

Court of Appeals of North Carolina.

April 19, 2016.

Wallace and Graham, PA., Salisbury, by Whitney V. Wallace, for Plaintiff.

Cranfill Sumner & Hartzog LLP, Raleigh, by Jaye E. Bingham–Hinch, for Defendant.

STEPHENS, Judge.

In this appeal by an injured employee from an opinion and award of the North Carolina Industrial Commission denying compensation, we apply our well established standard of review and hold that, while certain of the findings of fact challenged by the employee are supported by competent evidence, the Commission's legal conclusion that the employee failed to show that his injury "resulted from a fortuitous event, an interruption of his work routine, or an unusual task" and, thus, failed to establish that he sustained an injury by accident is not supported by the findings of fact. Accordingly, we reverse and remand.

Factual and Procedural Background

Plaintiff Joseph W. Barnette began working as a delivery driver for Defendant Lowe's Home Centers, Inc. ("Lowe's") in 2004. At the time he began his employment with Lowe's, Barnette had pre-existing back problems that had required medical treatment from about 2000 or 2001 forward. On 8 August 2012, Barnette was working with another Lowe's employee, Ron Alcorn, to deliver a refrigerator to a home on Bald Head Island. Like many homes on the island, this home had a so-called "reverse" floor plan with the kitchen on an upper floor. Barnette testified that the delivery was difficult, requiring him and Alcorn to carry a large refrigerator up a narrow twisting flight of stairs. At the top of the stairs, Barnette and Alcorn discovered that the refrigerator would not fit through the final turn of the stairwell and, thus, they had to take the refrigerator immediately back down the stairs. Barnette alleged that, near the bottom of the stairs, he lost all feeling in his right hand and forearm. Barnette shifted the weight of the refrigerator to his other hand and continued carrying the appliance down the stairs. The evidence was conflicting about whether Barnette mentioned his arm and hand symptoms to Alcorn at that moment. Feeling returned to Barnette's hand in about 20 to 30 minutes. Alcorn drove Barnette back to the local Lowe's. Barnette testified that he reported to the manager on duty that he had hurt his hand, but could not remember whether he mentioned "all the details...."

On 15 January 2013, Barnette filed a Form 18 asserting that he had "injured his right arm/elbow/hand when performing [an] unusually difficult delivery of a refrigerator up and down a narrow set of stairs" on 8 August 2012. On 19 March 2013, Lowe's filed a Form 61 Denial of Workers' Compensation Claim and Amended Denials of Workers' Compensation Claim on 20 June and 7 November 2013. Barnette filed a Form 33 Request that Claim be Assigned for Hearing on 5 April 2013 and an amended Form 18 on 5 November 2013. On 7 January 2014, a hearing was held before the deputy commissioner, who filed an opinion and award on 4 August 2014 denying Barnette benefits for failure to show he sustained an injury by accident. Barnette appealed to the Full Commission ("the Commission"), and, on 15 April 2015, the Commission affirmed the deputy commissioner's opinion and award with modifications, still denying Barnette compensation. From the Commission's opinion and award, Barnette appeals.

Discussion

Barnette argues that the Commission erred in (1) making findings of fact 4, 6, and 7, and (2) finding and concluding that Barnette's injuries were not the result of an accident. We reverse and remand.

I. Standard of Review

On appeal, we review an opinion and award in a workers' compensation case to determine "whether there is any competent evidence in the record to support the Commission's findings and whether those findings support the Commission's conclusions of law." Oliver v. Lane Co., 143 N.C.App. 167, 170, 544 S.E.2d 606, 608 (2001) (citation omitted). Thus, our "duty goes no further than to determine whether the record contains any evidence tending to support the finding." Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (citation and internal quotation marks omitted), rehr'g denied, 350 N.C. 108, 532 S.E.2d 522 (1999). "[T]he Commission is the sole judge of the credibility of witnesses and may believe all or a part or none of any witness's testimony...." Harrell v. J.P. Stevens & Co., Inc., 45 N.C.App. 197, 205, 262 S.E.2d 830, 835 (citation omitted), disc. review denied, 300 N.C. 196, 269 S.E.2d 623 (1980). The Commission's findings of fact are conclusive on appeal if supported by competent evidence, even if there is evidence to support contrary findings. Pittman v. Int'l Paper Co., 132 N.C.App. 151, 156, 510 S.E.2d 705, 709 (citation omitted), affirmed per curiam, 351 N.C. 42, 519 S.E.2d 524 (1999). "The Commission's findings of fact may be set aside on appeal only when there is a complete lack of competent evidence to support them." Jones v. Candler Mobile Village, 118 N.C.App. 719, 721, 457 S.E.2d 315, 317 (1995) (citation omitted; emphasis added). Findings of fact unchallenged by the appellant are presumed to be supported by competent evidence on appeal.

Cooper v. BHT Enters., 195 N.C.App. 363, 364–65, 672 S.E.2d 748, 751 (2009) (citation omitted). Where conclusions of law are not supported by the findings, we must reverse those portions of the opinion and award, remanding to the Commission for entry of conclusions of law that are supported. See, e.g., Goodrich v. R.L. Dresser, Inc.,

161 N.C.App. 394, 403, 588 S.E.2d 511, 517 (2003).

II. Findings of fact 4, 6, & 7

Barnette first argues that no competent evidence supports the Commission's findings of fact 4, 6, and 7. We are not persuaded.

Specifically, Barnette challenges the following portions of these findings of fact as not supported by competent evidence:

4. [Barnette] could not recall whether he immediately reported his injury to Mr. Alcorn....

....

6. Mr. Alcorn recalled ... no specific injury, pain, or symptoms reported by [Barnette] at that time. Mr. Alcorn testified that this was not the first time he witnessed [Barnette's] weakness, which he attributed to [Barnette's] age.

7. Defendant's Assistant Manager, Krystal Webb, ... did not recall [Barnette] reporting how the numbness started....

On appeal, Barnette cites various portions of the testimony before the Commission that appear to contradict the findings of fact made by the Commission or which would support different findings of fact. However,

it is [not] the role of this Court to comb through the testimony and view it in the light most favorable to the [appellant], when the Supreme Court has clearly instructed us to do the opposite. Although by doing so, it is possible to find a few excerpts that might be speculative, this Court's role is not to engage in such a weighing of the evidence.

Alexander v. Wal–Mart Stores, Inc., 166 N.C.App. 563, 573, 603 S.E.2d 552, 558 (2004) (Hudson, J., dissenting), reversed per curiam for the reasons stated in the dissenting opinion, 359 N.C. 403, 610 S.E.2d 374 (2005). Having engaged in our proper review, we conclude that each of the factual findings challenged by Barnette is supported by competent evidence in the record For example, in contending that no competent evidence supports the above-quoted portion of finding of fact 4, Barnette draws our attention to his testimony that he told Alcorn that he needed to see a doctor when his hand went numb as the two men carried the refrigerator to the bottom of the stairs. However, our review of the record reveals that, on direct examination, Barnette also testified that, when he suddenly lost all feeling in his right hand and forearm, "it scare[d] me a little bit. It scare[d] me a lot. And so I—I can't recall whether I tell [Alcorn] something's going on at that juncture or not." Likewise, on cross-examination, Barnette reiterated that, "while I was lifting [the refrigerator] and as I sat it down, ... I had to let go. I had nothing left. And I cannot remember whether I communicated that with [Alcorn] or not, at the time." This testimony supports the Commission's factual finding that Barnette "could not recall whether he immediately reported his injury to Mr. Alcorn...."

Similarly, the part of finding of fact 6 stating that Alcorn "recalled ... no specific injury, pain, or symptoms reported by [Barnette] at that time" is supported by Alcorn's response when asked whether he immediately realized Barnette was having symptoms as a result of his alleged injury. Alcorn testified that he knew Barnette was "having trouble holding that weight and taking it down one step at a time. So, he had said he's having difficulty doing it," but did not describe any symptoms until he and Alcorn "got back on the barge [to return to the mainland from Bald Head Island]." In addition, when asked whether Barnette had ever exhibited any physical difficulty in performing his job, Alcorn replied, "Just a weakness at times. I mean, it's—it's a hard job.... He's an old man. I'm sorry." That evidence supports the finding that "Mr. Alcorn testified that this was not the first time he witnessed [Barnette's] weakness, which he attributed to [Barnette's] age."

Finding of fact 7, that "Krystal Webb, ... did not recall [Barnette] reporting how the numbness started[,]" is supported by Webb's response to the question, "Did [Barnette] report to you how the pain started or the numbness started?":

I don't recall. It was on the job, per se, I assumed that it could have been a job related injury. But that was not discussed between us. It was just the fact that he needed to go to this appointment the next day. So, I—I don't really recall it being on the job injury. That—that wasn't discussed.

We thus overrule Barnette's challenge to findings of fact...