White v. Weyerhaeuser Co.

Decision Date04 January 2005
Docket NumberNo. COA03-1337.,COA03-1337.
Citation167 NC App. 658,606 S.E.2d 389
PartiesJames W. WHITE, Employee, Plaintiff, v. WEYERHAEUSER COMPANY, Employer, Self-Insured, Defendant.
CourtNorth Carolina Court of Appeals

Kellum Law Firm, by J. Kevin Jones, New Bern, for plaintiff-appellee.

Ward and Smith, P.A., by S. McKinley Gray, III and James R. Cummings, New Bern, for defendant-appellant. GEER, Judge.

Defendant Weyerhaeuser Company appeals from the Full Commission's Opinion and Award awarding temporary disability benefits to plaintiff James W. White. Weyerhaeuser argues primarily that White's resignation of his position with Weyerhaeuser precluded any award of disability benefits. Because the Commission found that White's resignation was not voluntary, but rather was in response to Weyerhaeuser's expressed intent to terminate his employment, we hold that the Commission properly analyzed this case under Seagraves v. Austin Co. of Greensboro, 123 N.C.App. 228, 472 S.E.2d 397 (1996).

Standard of Review

In reviewing a decision by the Commission, this Court's role "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). Under N.C.R.App. P. 10(a), our review is further limited to those findings of fact and conclusions of law properly assigned as error.

In this case, apparently operating based on an outdated version of our Appellate Rules, Weyerhaeuser has assigned error only to certain conclusions of law, but under each of the assignments of error has listed "Defendant's Exception[s]," referring to "exception[s]" typed onto a copy of the Commission's Opinion and Award. Nowhere in Weyerhaeuser's assignments of error or in the typewritten exceptions does the company state any specific reason that the findings of fact are in error.

The former version of Rule 10 of our Rules of Appellate Procedure "require [d] that all assignments of error should be followed by a listing of the exceptions on which they are based, and that these exceptions should be identified by the pages of the record at which they appear." Peoples Serv. Drug Stores, Inc. v. Mayfair, N.V. (Micora, N. V.), 50 N.C.App. 442, 446, 274 S.E.2d 365, 368 (1981). It appears that Weyerhaeuser has adhered to the procedure set forth in this older version of the Rule.

In 1988, Rule 10 was amended "to put an end to the formality of marking exceptions in the transcript of the proceedings as formerly required by Rule 10(b)(2). Accordingly, the language of the former Rule 10(b)(2), requiring that the record on appeal reflect a separate exception for each finding of fact assigned as error, was deleted from the current version of Rule 10(b)(2)." State v. Canady, 330 N.C. 398, 404-05, 410 S.E.2d 875, 879 (1991) (Meyer, J., dissenting). The current Rule 10 provides:

A listing of the assignments of error upon which an appeal is predicated shall be stated at the conclusion of the record on appeal, in short form without argument, and shall be separately numbered. Each assignment of error shall, so far as practicable, be confined to a single issue of law; and shall state plainly, concisely and without argumentation the legal basis upon which error is assigned. An assignment of error is sufficient if it directs the attention of the appellate court to the particular error about which the question is made, with clear and specific record or transcript references. Questions made as to several issues or findings relating to one ground of recovery or defense may be combined in one assignment of error, if separate record or transcript references are made.

N.C.R.App. P. 10(c)(1).

Under this rule, an appellant is required to specifically assign error to each finding of fact that it contends is not supported by competent evidence. "[F]indings of fact to which [an appellant] has not assigned error and argued in his brief are conclusively established on appeal." Static Control Components, Inc. v. Vogler, 152 N.C.App. 599, 603, 568 S.E.2d 305, 308 (2002). Thus, "[a] single assignment [of error] generally challenging the sufficiency of the evidence to support numerous findings of fact ... is broadside and ineffective" under N.C.R.App. P. 10. Wade v. Wade, 72 N.C.App. 372, 375-76, 325 S.E.2d 260, 266,disc. review denied, 313 N.C. 612, 330 S.E.2d 616 (1985). Since Weyerhaeuser has failed to challenge the sufficiency of the evidence to support the Commission's specific findings of fact, they are binding on appeal under the current rules.

In any event, a review of older cases applying the former rules reveals that, even under those rules, Weyerhaeuser has failed to properly present for appellate review the adequacy of the evidence to support the Commission's findings of fact. Under the former procedure, when, as here, assignments of error challenged only a conclusion of law, but listed under those assignments of error exceptions to specific findings of fact, the assignments of error "raise[d] only the question whether the facts found support the judgment, or whether error of law appears on the face of the record." Jewel Box Stores Corp. v. Morrow, 272 N.C. 659, 662, 158 S.E.2d 840, 842 (1968). See also Dobias v. White, 240 N.C. 680, 689, 83 S.E.2d 785, 791 (1954)

(appellant required to list a separate assignment of error for each finding of fact that appellant contends was not supported by evidence).

Weyerhaeuser has thus failed under both the former and current rules to raise on appeal the sufficiency of the evidence to support the Commission's findings of fact. The Commission's findings of fact are, therefore, binding on appeal.

Facts

White began working for Weyerhaeuser as a utility person on 15 August 1988. He received several promotions and in December 2000 held the position of night shift lead maintenance technician at Weyerhaeuser's New Bern sawmill plant. On 12 December 2000, White was working on a ladder when the ladder shook underneath him and he fell. He twisted his body and reached behind him with his right arm in an attempt to catch himself as he hit the floor. The safety incident investigation report stated that the cause of the accident was an insecure grip or hold and defective or unsafe equipment; it also noted that the floor had rain, oil, and grease on it.

Immediately after his fall, White's right thumb was bleeding and his right arm was numb. Since the plant nurse did not work during the night shift, White's shift supervisor, Don O'Neal, wrapped the thumb to stop the bleeding and had White sit in the office for the remaining three hours and 45 minutes of the shift. The Commission found that O'Neal filled out an incident report, but denied White's request for immediate medical treatment for his shoulder and thumb.

After White's shift ended at 6:00 or 7:00 a.m., he went home and slept. When he awoke at 1:00 p.m., his thumb was still bleeding and his shoulder was sore. White went to Eastern Carolina Internal Medicine Urgent Care, the medical facility designated by Weyerhaeuser in its policy handbook for treatment of work-related injuries. White received stitches in his thumb and pain medication for his shoulder.

On 13 December 2000, White received a letter of reprimand, labeled as a "Group II" violation, from his supervisor Buddy Taylor for "failure to obey written or oral instructions" and for engaging in horseplay. White testified he received the reprimand because he did not notify Taylor or Jean Matthews, a human resources employee, of the accident and because he went to the doctor without first going to the company nurse.

The New Bern sawmill plant rules divide rule violations into two types — Group I or Group II — based on the seriousness of the offense. Group I violations are subject to progressive discipline, including: (1) an oral warning, (2) a written reprimand, (3) a three-day layoff and final warning, and (4) a suspension followed by further disciplinary action, up to and including discharge. Group II violations are subject only to step 4.

White returned to work at Weyerhaeuser on light duty, but his shoulder continued to hurt. In early February 2001, he was referred to Dr. Mark Wertman, an orthopedic surgeon, who ordered an MRI on White's shoulder. The MRI revealed that White had a torn rotator cuff. On 30 March 2001, Dr. Wertman performed successful surgery on White's shoulder to repair the torn rotator cuff. Weyerhaeuser admitted compensability of White's injury by filing a Form 60 ("Employer's Admission of Employee's Right to Compensation Pursuant to NC Gen.Stat. § 97-18(b)") on 11 April 2001. After the surgery, White initially was unable to work and received temporary total disability benefits. Weyerhaeuser wrote Dr. Wertman correspondence within one week of the surgery requesting that White be returned to light duty work. White returned to work on 9 April 2001, again on a light duty basis, with restrictions on driving, lifting, and using his right arm. On 14 June 2001, Dr. Wertman advised White to do no overhead lifting and to lift a maximum of 15 pounds at waist level.

In June 2001, White received a second reprimand for a Group II violation for failure to obey written or oral instructions. White testified that he received the reprimand for leaving a message with his supervisor, Buddy Taylor, rather than speaking with him personally to request time off to take care of affairs related to the death of his father. White received approved leave to be with his father in the week preceding his father's death. Upon his father's death, he spoke with his unit leader at the plant, seeking additional time. White testified that he believed a unit leader had the authority to grant such leave and that the leave had been granted. The Commission found (1) that Weyerhaeuser presented no evidence to show that White's beliefs in this regard were incorrect and (2) that the...

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