KONRADY, EMPLOYEE v. US Airways, Inc.

• Decision Date: 03 August 2004
• Docket Number: No. COA02-1504.,COA02-1504.
• Citation: 165 NC App. 620,599 S.E.2d 593
• Court: North Carolina Court of Appeals
• Parties: Nelson KONRADY, EMPLOYEE, Plaintiff, v. U.S. AIRWAYS, INC., Employer, Reliance National Insurance Company, Carrier, and Sedgwick Claims Management, Administrator, Defendants.

599 S.E.2d 593

165 NC App. 620

Nelson KONRADY, EMPLOYEE, Plaintiff, v. U.S. AIRWAYS, INC., Employer, Reliance National Insurance Company, Carrier, and Sedgwick Claims Management, Administrator, Defendants.

No. COA02-1504.

Court of Appeals of North Carolina.

August 3, 2004.

Mark T. Sumwalt, P.A., by Mark T. Sumwalt and Vernon Sumwalt, Charlotte, for plaintiff-appellee.

Brooks, Stevens & Pope, P.A., by Daniel C. Pope, Jr. and Kimberley A. D'Arruda, Cary, for defendants-appellants.

GEER, Judge.

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.

Facts

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 severe pain 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 previous injury.

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 in triathlons, and had no further problems with her knee until 18 November 1999.

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 fact justify 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)

.

I

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 an accident, 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 work routine. 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., dissenting).

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...