{ "id": 9080095, "name": "DOUGLAS JEFFREY LANDRY, Employee, Plaintiff v. US AIRWAYS, INC., Employer, RSKCO, Carrier, Defendants", "name_abbreviation": "Landry v. US Airways, Inc.", "decision_date": "2002-05-07", "docket_number": "No. COA01-724", "first_page": "121", "last_page": "126", "citations": [ { "type": "official", "cite": "150 N.C. App. 121" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "487 S.E.2d 746", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "749", "parenthetical": "a claimant under the Workers' Compensation Act has the burden of proving the existence of his disability and its extent" } ], "opinion_index": 0 }, { "cite": "346 N.C. 760", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139324 ], "year": 1997, "pin_cites": [ { "page": "763", "parenthetical": "a claimant under the Workers' Compensation Act has the burden of proving the existence of his disability and its extent" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0760-01" ] }, { "cite": "335 S.E.2d 502", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "504", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 547", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524140 ], "year": 1985, "pin_cites": [ { "page": "550", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0547-01" ] }, { "cite": "543 S.E.2d 124", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 351", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155760, 1155803, 1155704, 1155669 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0351-03", "/nc/351/0351-04", "/nc/351/0351-01", "/nc/351/0351-02" ] }, { "cite": "519 S.E.2d 61", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "63", "parenthetical": "holding that while the plaintiff's job responsibilities included assisting patients who received epidurals, her regular work routine did not require lifting the legs of women weighing 263 pounds who had received epidurals" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 112", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239310 ], "year": 1999, "pin_cites": [ { "page": "116", "parenthetical": "holding that while the plaintiff's job responsibilities included assisting patients who received epidurals, her regular work routine did not require lifting the legs of women weighing 263 pounds who had received epidurals" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0112-01" ] }, { "cite": "334 S.E.2d 392", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "394" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 117", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520740 ], "year": 1985, "pin_cites": [ { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0117-01" ] }, { "cite": "294 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571994, 8571950, 8572020, 8571925, 8572058 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0556-03", "/nc/306/0556-02", "/nc/306/0556-04", "/nc/306/0556-01", "/nc/306/0556-05" ] }, { "cite": "292 S.E.2d 18", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "18" }, { "page": "19" }, { "page": "18" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 579", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525314 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "579" }, { "page": "580-81" }, { "page": "579" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0579-01" ] }, { "cite": "399 S.E.2d 104", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "105-06" } ], "opinion_index": 0 }, { "cite": "328 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2543161 ], "year": 1991, "pin_cites": [ { "page": "70" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0067-01" ] }, { "cite": "546 S.E.2d 87", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 1 }, { "cite": "353 N.C. 520", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135605 ], "year": 2001, "opinion_index": 1, "case_paths": [ "/nc/353/0520-01" ] }, { "cite": "540 S.E.2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "773" } ], "opinion_index": 1 }, { "cite": "141 N.C. App. 250", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440771 ], "year": 2000, "pin_cites": [ { "page": "259" } ], "opinion_index": 1, "case_paths": [ "/nc-app/141/0250-01" ] }, { "cite": "532 S.E.2d 522", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 1 }, { "cite": "350 N.C. 108", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132282, 131930, 132234, 132199 ], "year": 1999, "opinion_index": 1, "case_paths": [ "/nc/350/0108-02", "/nc/350/0108-04", "/nc/350/0108-03", "/nc/350/0108-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "414", "parenthetical": "citation omitted" } ], "opinion_index": 1 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "year": 1998, "pin_cites": [ { "page": "681", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/349/0676-01" ] } ], "analysis": { "cardinality": 656, "char_count": 13808, "ocr_confidence": 0.766, "pagerank": { "raw": 2.3782424721542697e-07, "percentile": 0.7965562857139548 }, "sha256": "67905b764a6fcd43211feda719ccf9b02cde4ecf8676653cd36a6dbb11966fd8", "simhash": "1:e0b3548936434cef", "word_count": 2228 }, "last_updated": "2023-07-14T19:52:10.836930+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge TIMMONS-GOODSON concurs.", "Judge HUNTER dissents." ], "parties": [ "DOUGLAS JEFFREY LANDRY, Employee, Plaintiff v. US AIRWAYS, INC., Employer, RSKCO, Carrier, Defendants" ], "opinions": [ { "text": "GREENE, Judge.\nDouglas Jeffrey Landry (Plaintiff) appeals an opinion and award of the Full Commission of the North Carolina Industrial Commission (the Commission) filed 22 February 2001 denying his workers\u2019 compensation claim against US Airways, Inc. (US Airways) and its insurance carrier RSKCO (collectively, Defendants).\nOn 3 August 1998, Plaintiff filed a claim with the North Carolina Industrial Commission requesting a hearing before a deputy commissioner. The evidence presented at the hearing established that in 1996, Plaintiff was employed by US Airways. His duties involved computer work three times a week and the loading and unloading of cargo twice a week. The cargo handled by Plaintiff typically involved mail, freight, and passenger luggage, ranging in weight from one-to-five-pound packages to 400-pound freight. On 17 July 1996, Plaintiff and his supervisor Robert Drda (Drda) were unloading a Fokker F28, a small jet aircraft with a seating capacity of approximately sixty-five passengers. They did not have a conveyor belt to assist them, which was not unusual for this type of aircraft. Drda was working inside the luggage compartment while Plaintiff was positioned at the rear of the aircraft next to the opening of the luggage compartment. When Drda pushed a large, yellow mailbag toward the opening, Plaintiff reached over his head to grab it. As Plaintiff turned to place the mailbag into a cargo cart, he discovered it was heavier than he had anticipated and felt a sharp pain in his right shoulder. Plaintiff told Drda about his injury, and together, they completed an injury report.\nPlaintiff later discovered the mailbag was filled with processed photos instead of regular mail. Although Plaintiff never knew exactly how much an individual item would weigh until lifting it, he could generally estimate its weight \u201cby sight\u201d before picking it up. Plaintiff testified it was not unusual for a mailbag to be overweight.\nDr. Robert C. Martin (Dr. Martin) diagnosed Plaintiff with a torn rotator cuff. Dr. Martin performed arthroscopic surgery on Plaintiff during which he repaired both a torn labral tendon and extensive rotator cuff tear.\nThe Commission entered the following pertinent findings:\n3. In the loading and unloading of aircraft, [P]laintiff was required to load and unload mail, freight, and passenger luggage. The weights loaded by [P]laintiff ranged from one to five pounds up through 350 to 400 pounds. Packages would be different sizes and typesf,] including mail sacks. Plaintiff moved [U.S.] [P]ost [0]ffice sacks. These sacks were weighed by the [U.S.] [P]ost [0]ffice and the actual weights of these sacks were labeled on the outside of the sacks. However, there was no way for [P]laintiff to know how much these sacks weighed until he picked up the sacks because the weights were printed on small tags. It is not unusual that certain mailbags would be very heavy and that [PJlaintiff would be unaware of their excessive weight until he picked up those bags ....\n4. On July 17, 1996, [Pjlaintiff and his supervisor were unloading a Fokker F28 aircraft. Plaintiff and his supervisor were not using a conveyer belt . . . [to] unloadf] that aircraft for safety reasons ....\n5. On July 17, 1996, [Drda] was inside the hold of the aircraft and [Pjlaintiff was at the rear of the aircraft on the ground removing packages. As [Pjlaintiff reached to pull a mail sack down and turned to put it on the ground, he felt a sharp pain in his right shoulder.\n6. Plaintiff sought medical treatment and ultimately underwent arthroscopic surgery on November 25, 1997 for a posterior-superior labral tear. This condition was caused by the incident with the mailbag on July 17, 1996. []\n7. On July 17, 1996, [Pjlaintiff was performing his normal job duties in the normal manner when he injured his right shoulder. Plaintiff was performing his normal motion as he lifted the mailbag and turned. Although the mailbag may have been heavier than he anticipated, [Pjlaintiff never knew the weight of any mailbag until he lifted the bag. Mailbags often varied in weight and were heavier or lighter than anticipated. Plaintiff\u2019s job typically required him to handle mailbags of various unknown weights. Plaintiff was not using a conveyer belt loader to unload the Fokker F28 airplane on July 17, 1996. Approximately 75% of the time a conveyer belt loader was not used on this aircraft. Therefore, [Pjlaintiff\u2019s unloading of this aircraft without the use of a conveyer belt was normal procedure and did not cause any unusual or unforeseen event.\nBased on these findings, the Commission concluded \u201c[Pjlaintiff did not sustain an injury by accident\u201d entitling him to workers\u2019 compensation benefits because an accident requires \u201cthe introduction ... of unusual conditions likely to result in unexpected consequences.\u201d\nThe issue is whether the Commission\u2019s findings, if based on competent evidence, support its conclusion that Plaintiff did not sustain an injury by accident.\nReview on appeal from an opinion and award of the Commission is limited to a determination of whether its findings are supported by competent evidence and whether the findings support the Commission\u2019s conclusions. Cody v. Snider Lumber Co., 328 N.C. 67, 70, 399 S.E.2d 104, 105-06 (1991). In order to be compensable under the Workers\u2019 Compensation Act, an injury must result from an \u201caccident arising out of and in the course of the employment.\u201d N.C.G.S. \u00a7 97-2(6) (1999). In deciding whether there was an accident, the only question on appeal is whether there was \u201can unlooked for and untoward event which is not expected or designed by the [injured employee],\u201d Gladson v. Piedmont Stores, 57 N.C. App. 579, 579, 292 S.E.2d 18, 18, disc. review denied, 306 N.C. 556, 294 S.E.2d 370 (1982), or \u201cthe interruption of the routine work and the introduction thereby of unusual conditions,\u201d Sanderson v. Northeast Construction Co., 77 N.C. App. 117, 121, 334 S.E.2d 392, 394 (1985). The lifting of an object by an employee that is heavier than expected or heavier than the usual nature of the object may constitute an unlooked for and untoward event not expected or designed by the injured employee. Gladson, 57 N.C. App. at 580-81, 292 S.E.2d at 19; see also Calderwood v. Charlotte-Mecklenburg Hosp. Auth., 135 N.C. App. 112, 116, 519 S.E.2d 61, 63 (1999) (holding that while the plaintiff\u2019s job responsibilities included assisting patients who received epidurals, her regular work routine did not require lifting the legs of women weighing 263 pounds who had received epidurals), disc. review denied, 351 N.C. 351, 543 S.E.2d 124 (2000). But \u201conce an activity, even a strenuous or otherwise unusual activity, becomes a part of the employee\u2019s normal work routine, an injury caused by such activity is not the result of an interruption of the work routine or otherwise an \u2018injury by accident.\u2019 \u201d Bowles v. CTS of Asheville, 77 N.C. App. 547, 550, 335 S.E.2d 502, 504 (1985) (citation omitted).\nIn this case, the Commission found that \u201c[m]ailbags often . . . were heavier or lighter than anticipated.\u201d This finding is not supported by the evidence. Plaintiff merely testified mailbags were often overweight, not that this fact was unanticipated by him when he lifted them. Furthermore, Plaintiff testified he could generally estimate the weight of mailbags by sight but found this particular mailbag heavier than anticipated. Plaintiff\u2019s undisputed testimony supports only one finding, namely that an unlooked for and untoward event occurred which was not expected by Plaintiff. See Gladson, 57 N.C. App. at 579, 292 S.E.2d at 18. This finding leads to the conclusion Plaintiff sustained an injury by accident when he lifted the mailbag. Accordingly, we reverse the Commission\u2019s opinion and award and remand this case to determine the degree of disability, if any, see Saums v. Raleigh Community Hosp., 346 N.C. 760, 763, 487 S.E.2d 746, 749 (1997) (a claimant under the Workers\u2019 Compensation Act has the burden of proving the existence of his disability and its extent), Plaintiff sustained as a consequence of his 17 July 1996 accident arising out of and in the course of his employment with US Airways.\nReversed and remanded.\nJudge TIMMONS-GOODSON concurs.\nJudge HUNTER dissents.\n. While Defendants cross-assign error to the Commission\u2019s finding that Plaintiff\u2019s condition was caused by the work-related incident with the mailbag on 17 July 1996, Defendants have failed to argue this issue in their brief. Accordingly, it is deemed abandoned. See N.C.R. App. P. 28(a).", "type": "majority", "author": "GREENE, Judge." }, { "text": "HUNTER, Judge,\ndissenting.\nI would hold that the Commission\u2019s findings of fact, which are supported by competent evidence, are sufficient to support its conclusion of law that plaintiff did not sustain a compensable injury because there were no \u201cunusual conditions likely to result in unexpected consequences.\u201d I therefore respectfully dissent.\nThe Commission\u2019s findings of fact are conclusive on appeal where supported by \u201c. . . \u2018any competent evidence.\u2019 \u201d Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (citation omitted), reh\u2019g denied, 350 N.C. 108, 532 S.E.2d 522 (1999). \u201cThus, on appeal, this Court \u2018does not have the right to weigh the evidence and decide the issue on the basis of its weight. The court\u2019s duty goes no further than to determine whether the record contains any evidence tending to support the finding.\u2019 \u201d Id. (citation omitted). Even where the record contains competent evidence to the contrary, we must defer to the findings of the Commission where supported by any competent evidence at all. Larramore v. Richardson Sports Ltd. Partners, 141 N.C. App. 250, 259, 540 S.E.2d 768, 773 (2000), affirmed, 353 N.C. 520, 546 S.E.2d 87 (2001).\nThe majority opinion singles out one sentence contained in finding of fact number seven, which sets forth a variety of findings, including that plaintiff was engaged in his normal activities when the injury occurred; that \u201c[although the mailbag may have been heavier than he anticipated, plaintiff never knew the weight of any mailbag until he lifted the bag\u201d; that plaintiff\u2019s job \u201ctypically required him to handle mailbags of various unknown weights\u201d; and that the mailbags \u201coften varied in weight and were heavier or lighter than anticipated.\u201d Noting that plaintiff never testified in the exact words that mailbags were often heavier than \u201canticipated,\u201d the majority concludes that the Commission\u2019s findings of fact are unsupported and the order must be reversed.\nAlthough plaintiff may not have specifically stated that the mailbags were often heavier or lighter than \u201canticipated,\u201d the evidence as a whole clearly supports the Commission\u2019s findings that plaintiff\u2019s job required him to lift weights of up to 400 pounds; that plaintiff never knew prior to lifting mailbags how much they weighed; that it was not unusual for mailbags to be extremely heavy and that plaintiff would be unaware of the heavy weight of the bags until he lifted them; and that plaintiff was engaged in his normal duties and using his normal motions when injured.\nAlthough plaintiff testified that he could \u201cguess\u201d at a bag\u2019s weight prior to picking it up by looking at its size (plaintiff testified that for example, he could tell the difference in weight between an envelope as compared to a bag or an individual person\u2019s luggage), he also testified that he never reads the weight labels for any bags prior to picking them up, and that he does not know how much the bags weigh prior to picking them up. Moreover, both plaintiff and his supervisor, Mr. Drda, testified it was not unusual for the post office to exceed its weight restrictions with mailbags, and that the bags would often be heavier than they should be. Mr. Drda also testified that they received and moved bags of developed film \u201con a regular basis,\u201d and that the only thing he recalled as being unusual about 17 July 1996 was that plaintiff had complained about pain in his shoulder \u2014 not that there was anything unusual about the mailbag which plaintiff handled.\nThe preceding evidence constitutes competent evidence which supports the Commission\u2019s findings, which in turn support its conclusion that plaintiff did not sustain a compensable injury. I believe the majority has overly focused on a single sentence contained within a finding of fact to the exclusion of all other findings which are supported by competent evidence and which in and of themselves support the Commission\u2019s conclusion that plaintiff was not injured as a result of any unusual condition. Accordingly, I respectfully dissent.", "type": "dissent", "author": "HUNTER, Judge," } ], "attorneys": [ "Law Offices of George W. Lennon, by George W. Lennon and Michael W. Ballance, for plaintiff-appellant.", "Brooks, Stevens & Pope, P.A., by Michael C. Sigmon and Matthew P. Blake, for defendant-appellees." ], "corrections": "", "head_matter": "DOUGLAS JEFFREY LANDRY, Employee, Plaintiff v. US AIRWAYS, INC., Employer, RSKCO, Carrier, Defendants\nNo. COA01-724\n(Filed 7 May 2002)\nWorkers\u2019 Compensation\u2014 injury by accident \u2014 unlooked for and untoward event\nThe Industrial Commission erred in a workers\u2019 compensation case by concluding that plaintiff employee did not sustain an injury by accident as required by N.C.G.S. \u00a7 97-2(6) and the case is remanded to determine the degree of disability, because: (1) the lifting of an object by an employee that is heavier than expected or heavier than the usual nature of the object may constitute an unlooked for and untoward event not expected or designed by the injured employee; and (2) plaintiffs testimony supports a finding that an unlooked for and untoward event occurred which was not expected by plaintiff when he lifted a mailbag.\nJudge Hunter dissenting.\nAppeal by plaintiff from opinion and award filed 22 February 2001 by the North Carolina Industrial Commission. Heard in the Court of Appeals 26 March 2002.\nLaw Offices of George W. Lennon, by George W. Lennon and Michael W. Ballance, for plaintiff-appellant.\nBrooks, Stevens & Pope, P.A., by Michael C. Sigmon and Matthew P. Blake, for defendant-appellees." }, "file_name": "0121-01", "first_page_order": 151, "last_page_order": 156 }