Searsey v. Perry M. Alexander Const. Co.

• Citation: 35 N.C.App. 78,239 S.E.2d 847
• Decision Date: 17 January 1978
• Docket Number: No. 7728IC106,7728IC106
• Court: North Carolina Court of Appeals
• Parties: Donald SEARSEY (Employee), v. PERRY M. ALEXANDER CONSTRUCTION CO. (Employer), and Aetna Casualty & Surety Co. (Carrier).

Page 847

239 S.E.2d 847

35 N.C.App. 78

Donald SEARSEY (Employee), v. PERRY M. ALEXANDER CONSTRUCTION CO. (Employer), and Aetna Casualty & Surety Co. (Carrier).

No. 7728IC106.

Court of Appeals of North Carolina.

Jan. 17, 1978.

Gudger, McLean, Leake, Talman & Stevenson by A. E. Leake, Marshall, for plaintiff-appellee.

Uzzell & Dumont by J. William Russell, Asheville, for defendant-appellants.

CLARK, Judge.

Defendants attack the Commissioner's award as invalid because the plaintiff's injury was caused not by an accident but by an expected, foreseen event which was part of plaintiff's usual work. G.S. 97-2(6) of the Workmen's Compensation Act limits compensation to recovery for

" . . . injury by accident arising out of and in the course of the employment, and shall not include a disease in any form, except where it results naturally and unavoidably from the accident." (Emphasis added.)

An "accident" is an unlooked for and untoward event not expected or designed by the employee. Harding v. Thomas & Howard Co., 256 N.C. 427, 124 S.E.2d 109 (1962). An "accident" is not established by the mere fact of injury but is to be considered as a separate event preceding and causing the injury. Beamon v. Grocery, 27 N.C.App. 553, 219 S.E.2d 508 (1975); Bigelow v. Tire Sales Co., 12 N.C.App. 220, 182 S.E.2d 856 (1971). No matter how great the injury, if it is caused by an event that involves both an employee's normal work routine and normal working conditions it will not be considered to have been caused by accident. 8 Strong's N.C. Index, 3d ed., Master & Servant, § 55.1, p. 534; Pardue v. Tire Co., 260 N.C. 413, 132 S.E.2d 747 (1963); Pulley v. Association, 30 N.C.App. 94, 226 S.E.2d 227 (1976). In the case sub judice, the Deputy Commissioner found:

"In the normal operation of an air hammer, there is some material under the pavement which is being broken which allows the operator of the air hammer to draw it back slowly. It is unusual, in the operation of the air hammer, although not unnatural for the air hammer to jerk the operator when it breaks through the pavement." (Emphasis added.)

Her finding that the sudden breakthrough was unusual and not part of plaintiff's normal work routine and normal working conditions was amply supported by the evidence. The employee's use of the air hammer was usual in the sense that he regularly, though not often, used the tool in breaking concrete. Most of the time he used it to break concrete over soil or other supporting material. But at the time of the injury he was engaged in using the air hammer to break a concrete cap, reinforced for strength with steel, over (air) a well, which operation he did rarely. The drill of the hammer is driven downward by compressed air, aided by the weight of the hammer. The rate of penetration by the drill into the reinforced concrete is variable because the reinforcing steel will slow, if not stop temporarily, the penetration. The intermittent driving force of the compressed air gives the hammer a bucking or jerking action. Under these circumstances it was obviously difficult for the employee to determine the moment when the hammer would break through the concrete so that he could protect himself by lifting the hammer to minimize the sudden downward driving force. Under these circumstances, the sudden breakthrough of the air hammer was not...