Griggs v. Eastern Omni Constructors

• Decision Date: 17 June 2003
• Docket Number: No. COA02-1093.,COA02-1093.
• Citation: 158 NC App. 480,581 S.E.2d 138
• Parties: David Lee GRIGGS, Employee, Plaintiff, v. EASTERN OMNI CONSTRUCTORS, Employer, and Legion Insurance Company, Carrier, Defendants.
• Court: North Carolina Court of Appeals

581 S.E.2d 138

158 NC App. 480

David Lee GRIGGS, Employee, Plaintiff, v. EASTERN OMNI CONSTRUCTORS, Employer, and Legion Insurance Company, Carrier, Defendants.

No. COA02-1093.

Court of Appeals of North Carolina.

June 17, 2003.

Heidi G. Chapman, Chapel Hill, for plaintiff-appellant.

Womble Carlyle Sandridge & Rice, PLLC, by Alison R. Bost, Winston-Salem for defendants-appellees.

TYSON, Judge.

David Lee Griggs ("plaintiff") appeals from an opinion and award of the North Carolina Industrial Commission ("Commission") which denied workers' compensation benefits. We remand to the Commission for further findings of fact and conclusions of law.

I. Background

On 6 April 1999, plaintiff, who had been an electrician for twenty-two years, was employed by Omni Constructors ("employer") as an electrician and was working at a job site in Brown Summit. Plaintiff and Richard Lambeth were assigned a "rush job" of pulling old wire leading from heavy machinery without damaging the wire in order that it could be reinstalled.

Plaintiff testified that he asked his supervisor for more help because he did not feel that he and Lambeth would be able to complete the assignment within the time frame required. His supervisor was unable to provide additional assistance because they were "very short on personnel."

In order to remove the wire without damage, plaintiff was required to disconnect the wire, pull it out of one set of conduit, lay it out on the floor to straighten it, and feed the wire through another conduit located above the ceiling which led to a control panel where Lambeth could roll the wires. Each bundle of wires weighed approximately 130 pounds.

Plaintiff was pulling the wire up and feeding it through the control panel, more than twenty feet above the floor. Plaintiff testified "I was having to stand between the race way in my front, and the conduit running at my back, and I was having to reach across my left side down below my knees and [dead] lift this wire up and hold it over my head to guide it to go down to the conduit, to come out the other end to go back into the control panel to be rolled up." In response to the question "Have you ever done that procedure before?", plaintiff responded "It's an awkward position to pull wire in, and it was very hard, but I can't actually say I've actually been in a situation where I had to pull wire like that before, no."

On cross-examination, plaintiff admitted that pulling wire both in installation and in removal were normal parts of his employment. Plaintiff explained, "We were told that this wire was to be saved, that the company wanted to try to re-install a machine, which is very unusual, and this was the first time I'd ever even done this in 22 years." Pulling wire on removal is different because "where you're doing a demolition, generally the wire is just cut off, and it's cut off in a manner where you can just more or less just reach it with one hand and yank it out of the pipe."

While plaintiff was working in an "awkward position," he felt "something pop really hard in [his right] shoulder." Plaintiff waited a few minutes for the pain to subside and resumed work with his other hand to complete his tasks. Plaintiff informed his employer of the injury at his break.

After examining plaintiff, Dr. James Kendall placed plaintiff's arm in a sling, ordered light work for four to five days and prescribed prescription Ibuprofen. Despite plaintiff's complaint of continued pain, employer returned plaintiff to his previous job. When plaintiff informed employer that he was not able to continue working because of the pain, employer terminated plaintiff.

Plaintiff was examined by an orthopedic surgeon who diagnosed plaintiff with a rotator cuff strain/sprain with tendinitis/bursitis and "DJD AC joint." When conservative treatment failed, plaintiff underwent surgery to rebuild a collapsed rotator cuff, remove a bone chip, and repair damage to the shoulder ligaments.

Employer presented evidence that pulling wire was a part of the daily requirements for electricians working with employer. Fred Redman testified that there was nothing unusual in plaintiff's description of the manner in which he was pulling wire, but that he was not present that day and did not see the conditions under which plaintiff worked. Redman further testified that running wires high up off the floor was common.

The Commission found that a normal part of an electrician's job was to "pull wire" through a conduit. Depending on the job, an electrician may be "in an awkward position from time to time." The Commission found:

5. The evidence fails to show that plaintiff's right shoulder injury was caused by an accident arising out of and in the course of his employment with defendant-employer. While plaintiff indicated that he was in an awkward position, his testimony is equivocal regarding the unusualness of the incident. The greater weight of the evidence including his testimony demonstrates that there was no interruption of his regular work routine, as pulling wire sometimes in awkward positions was a normal part of plaintiff's job routine. Significantly, plaintiff had been working as an electrician pulling wire for 22 years. Moreover, there was nothing unusual in what plaintiff was required to do in removing the wire on April 6, 1999.

The Commission concluded that plaintiff was not entitled to benefits because the injury did not occur by accident. Commissioner Laura Kranfield Mavretic dissented. Plaintiff appeals.

II.Issues

Plaintiff contends the Commission erred in (1) concluding plaintiff did not suffer an injury by accident and (2) failing to make sufficient findings of fact.

III.Standard of Review

In appeals from the Commission, our review is limited to whether there is any competent evidence in the record to support the Commission's findings of fact. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998). Even where there is competent evidence to the contrary, we must defer to the findings of the Commission where supported by any competent evidence. Larramore v. Richardson Sports Ltd. Partners, 141 N.C.App. 250, 259, 540 S.E.2d 768, 773 (2000), aff'd, 353 N.C. 520, 546 S.E.2d 87 (2001). The Commission's findings of fact may only be set aside when "there is a complete lack of competent evidence to support them." Click v. Freight Carriers, 300 N.C. 164, 166, 265 S.E.2d 389, 390 (1980). We review conclusions of law de novo.

IV. Injury by Accident

Plaintiff contends the Commission erred in concluding plaintiff did not suffer an injury by accident.

A compensable injury is an "injury by accident arising out of and in the course of employment." N.C. Gen.Stat. § 97-2(6). An accident has been defined as "an unlooked for and untoward event which is not expected or designed by the injured employee." Norris v. Kivettco, Inc., 58 N.C.App. 376, 378, 293 S.E.2d 594, 595 (1982). "There must be some unforeseen or unusual...