{ "id": 8548849, "name": "CATHERINE B. PORTER v. SHELBY KNIT, INC., Employer and LIBERTY MUTUAL INSURANCE COMPANY, Carrier", "name_abbreviation": "Porter v. Shelby Knit, Inc.", "decision_date": "1980-04", "docket_number": "No. 7910IC393", "first_page": "22", "last_page": "28", "citations": [ { "type": "official", "cite": "46 N.C. App. 22" } ], "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": "181 S.E. 2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565922 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0132-01" ] }, { "cite": "42 S.E. 2d 96", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1947, "opinion_index": 0 }, { "cite": "227 N.C. 314", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624486 ], "year": 1947, "opinion_index": 0, "case_paths": [ "/nc/227/0314-01" ] }, { "cite": "239 S.E. 2d 845", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "35 N.C. App. 105", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547422 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/35/0105-01" ] }, { "cite": "135 S.E. 2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "261 N.C. 508", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574321 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/261/0508-01" ] }, { "cite": "110 S.E. 2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "opinion_index": 0 }, { "cite": "251 N.C. 194", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624262 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/nc/251/0194-01" ] }, { "cite": "132 S.E. 2d 747", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "260 N.C. 413", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574993 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/260/0413-01" ] }, { "cite": "63 S.E. 2d 173", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "233 N.C. 88", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599630 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/233/0088-01" ] }, { "cite": "131 S.E. 2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "259 N.C. 724", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562493 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/259/0724-01" ] }, { "cite": "98 S.E. 2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1957, "pin_cites": [ { "page": "292" } ], "opinion_index": 0 }, { "cite": "246 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625913 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/246/0274-01" ] }, { "cite": "157 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "271 N.C. 586", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565668 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/271/0586-01" ] }, { "cite": "158 S.E. 2d 865", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "272 N.C. 697", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574378 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/272/0697-01" ] } ], "analysis": { "cardinality": 623, "char_count": 12995, "ocr_confidence": 0.807, "pagerank": { "raw": 5.948054266852166e-07, "percentile": 0.9535050112960254 }, "sha256": "5c0cf6e530f901399da96c7294537786e3dc4d0d3afd947f067e9e6009fd2f48", "simhash": "1:1c63ec4b337accce", "word_count": 2208 }, "last_updated": "2023-07-14T21:32:37.131990+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MORRIS and Judge HILL concur." ], "parties": [ "CATHERINE B. PORTER v. SHELBY KNIT, INC., Employer and LIBERTY MUTUAL INSURANCE COMPANY, Carrier" ], "opinions": [ { "text": "PARKER, Judge.\nUnder the North Carolina Workers\u2019 Compensation Act, an injury arising out of and in the course of employment is compen-sable only if that injury was caused by an \u201caccident,\u201d which must be a separate event preceding and causing the injury. Jackson v. Highway Commission, 272 N.C. 697, 158 S.E. 2d 865 (1968); Rhinehart v. Market, 271 N.C. 586, 157 S.E. 2d 1 (1967); Hensley v. Cooperative, 246 N.C. 274, 98 S.E. 2d 289 (1957). The initial question raised by defendant employer on this appeal is whether the Commission properly found that plaintiff\u2019s injury resulted from such an \u201caccident.\u201d\nDefendant\u2019s first contention is that the evidence does not support the Commission\u2019s Findings of Fact Nos. 2 and 6. Finding of Fact No. 2 of the full Commission\u2019s Opinion and Award recites:\n2. On 19 October 1976 the plaintiff, in the course of her duties, was pulling a rod out of a roll of cloth, this activity a part of the plaintiff\u2019s regular and customary job. On this occasion, the withdrawal of the rod was more difficult than usual. The extraordinary effort the plaintiff exerted in her effort to withdraw the rod injured her back and caused an onset of pain. Plaintiff continued to work with difficulty due to pain until 3 November 1976.\nFinding of Fact No. 6 of that Award reads:\n6. Plaintiff suffered 19 October 1976 an injury by accident arising out of and in the course of her employment. As a result, she became totally disabled 3 November 1976.\nIf there was any competent evidence before the Commission to support these findings they are, of course, conclusive on this appeal. Cole v. Guilford County, 259 N.C. 724, 131 S.E. 2d 308 (1963); Vause v. Equipment Co., 233 N.C. 88, 63 S.E. 2d 173 (1951).\nAs to Finding of Fact No. 2, plaintiff stated several times in her testimony before the Deputy Commissioner that although the rods were sometimes hard to pull out, the night the injury occurred it was \u201cextra hard\u201d or \u201cunusually hard\u201d to doff that particular machine because it was \u201cextra tight.\u201d She stated, that as a result, \u201cI had to strain to get it out.\u201d Plaintiff placed her knees around the roll of cloth, pulled up on the rod and experienced pain in her spine such that she could hardly move. Although plaintiff admitted that she was doing what she normally did when a rod was hard to pull out and that this was part of her normal job, this testimony did not contradict that concerning the extra strain which she exerted to pull the rod out of that machine. Further, although defendant offered into evidence a statement made by plaintiff and recorded by defendant\u2019s insurance carrier\u2019s claim supervisor while plaintiff was hospitalized in which plaintiff stated that several of the machines were hard to doff on the night the injury occurred, the weight to be accorded that evidence was for the Commission to determine. The Commission merely chose to rely on plaintiff\u2019s testimony before the hearing examiner, and that testimony was sufficient to support Finding of Fact No. 2.\nAs to Finding of Fact No. 6, we also find that there was sufficient evidence to support the finding that plaintiff suffered an injury by \u201caccident.\u201d Our Supreme Court has defined the term \u201caccident\u201d as used in the Workers\u2019 Compensation Act as \u201can un-looked for and untoward event which is not expected or designed by the person who suffers the injury.\u201d Hensley v. Cooperative, supra at 278, 98 S.E. 2d at 292; accord, Rhinehart v. Market, supra. The elements of an \u201caccident\u201d are the interruption of the routine of work and the introduction thereby of unusual conditions likely to result in unexpected consequences. Pardue v. Tire Co., 260 N.C. 413, 132 S.E. 2d 747 (1963); Faires v. McDevitt and Street Co., 251 N.C. 194, 110 S.E. 2d 898 (1959). Of course, if the employee is performing his regular duties in the \u201cusual and customary manner,\u201d and is injured, there is no \u201caccident\u201d and the injury is not compensable. O\u2019Mary v. Clearinq Corp., 261 N.C. 508, 135 S.E. 2d 193 (1964).\nIn support of its contention that the facts of the present case do not satisfy the requirements of injury by \u201caccident,\u201d defendant relies upon the decision of our Supreme Court in Hensley v. Cooperative, supra, and of this Court in Smith v. Burlington Industries, 35 N.C. App. 105, 239 S.E. 2d 845 (1978). In Hensley, the plaintiff had been employed for two and one-half years to \u201cturn chickens\u201d. His duties required him, while standing, to twist and pick up a wire basket containing six chickens and then to return to a normal position and dip the basket in hot water. On one occasion, he twisted as usual and suffered an injury. On appeal from an award of the Industrial Commission granting compensation, the Supreme Court reversed on the grounds that there was no evidence of \u201caccident\u201d other than the injury itself.\nSimilarly, in the Smith case, the plaintiff\u2019s back was injured as he was turning to lift two brass bars. This Court held that the Commission properly denied compensation because the evidence showed that plaintiff was doing nothing unusual or different at the time of his injury.\nWe find each of the above cases distinguishable from that now before us. In each case, the injured employee was performing his usual duties at the time the injury occurred, and there was no extra exertion required to perform those duties at that time. That is, there was neither evidence of an interruption of the work routine nor the introduction of unusual circumstances. In the present case, both of those elements are present. There is competent evidence in the record that, on the occasion of plaintiff\u2019s injury withdrawal of the rod was unusually difficult because the roll of cloth was \u201cextra tight,\u201d thus interrupting what was plaintiff\u2019s normal work routine. Further, there is competent evidence that the effort which plaintiff exerted was unusual. Our Supreme Court has recognized that evidence of the necessity of extreme exertion is sufficient to bring into an event causing an injury the necessary element of unusualness and unexpectedness from which accident may be inferred. Jackson v. Highway Commission, supra; Gabriel v. Newton, 227 N.C. 314, 42 S.E. 2d 96 (1947). Thus, the Commission was warranted in finding as a fact and concluding as a matter of law that plaintiff suffered an injury \u201cby accident\u201d on 19 October 1976.\nIn its Finding of Fact No. 6, the Commission also found that plaintiff became totally disabled 3 November 1976. Plaintiff testified that on 4 November 1976 she consulted a surgeon in Shelby, and after a few days of rest entered the hospital for four weeks. The day after Thanksgiving 1976 plaintiff underwent an operation, and after she returned home on 4 December 1976 she remained in bed until mid-February 1977. During that time she was not employed. As used in the Workers\u2019 Compensation Act, the term \u201cdisability\u201d means incapacity because of injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of injury. G.S. 97-2(9); see, Watkins v. Motor Lines, 279 N.C. 132, 181 S.E. 2d 588 (1971). Although there is a one-day discrepancy between evidence in the record as to the exact date plaintiff ceased work because of her injury and the date referred to in the Commission\u2019s findings, that discrepancy is not crucial to the finding of total disability. That finding is adequately supported by plaintiff\u2019s evidence of her medical treatment involving complete bed rest and subsequent hospitalization, i.e. her total incapacity to work and to earn wages, and that finding in turn supports the Commission\u2019s award of compensation. As the Commission itself noted, the record is silent on the question of what date, if yet, plaintiff reached maximum recovery, and on the question of her permanent partial disability, if any. For this reason, the case must be remanded for further hearings on these questions.\nThat portion of the opinion and award of the full Commission determining plaintiff\u2019s entitlement to compensation is affirmed, and the case is remanded for further hearings on the issues noted.\nAffirmed in part and remanded.\nChief Judge MORRIS and Judge HILL concur.", "type": "majority", "author": "PARKER, Judge." } ], "attorneys": [ "Lamb & Bridges, P.A., by Forrest Donald Bridges for plaintiff appellee.", "Mullen, Holland & Harrell, P.A., by Thomas A. Robinson for defendant appellant." ], "corrections": "", "head_matter": "CATHERINE B. PORTER v. SHELBY KNIT, INC., Employer and LIBERTY MUTUAL INSURANCE COMPANY, Carrier\nNo. 7910IC393\n(Filed 1 April 1980)\n1. Master and Servant \u00a7 55.3\u2014 worker\u2019s compensation \u2014 back injury while removing rod from cloth \u2014 accident\nThe Industrial Commission properly determined that plaintiff suffered an injury by \u201caccident\u201d within the meaning of the Worker\u2019s Compensation Act where the evidence supported findings by the Commission that plaintiff, in the course of her duties as a knitter, was pulling a rod out of a roll of cloth; this activity was a part of plaintiff\u2019s regular and customary job; on this occasion, the withdrawal of the rod was more difficult than usual because the roll of cloth was \u201cextra tight\u201d; and the extraordinary effort plaintiff exerted in her attempt to withdraw the rod injured her back and caused an onset of pain.\n2. Master and Servant \u00a7 69.1\u2014 temporary total disability \u2014sufficiency of evidence\nA determination by the Industrial Commission that plaintiff was temporarily totally disabled was supported by plaintiff\u2019s evidence of her medical treatment involving complete bed rest and subsequent hospitalization, i.e. her total incapacity to work and to earn wages.\nAPPEAL by defendant from Opinion and Award of the North Carolina Industrial Commission filed 11 January 1979. Heard in the Court of Appeals 3 December 1979.\nThis is a claim for benefits under the Workers\u2019 Compensation Act for injuries suffered by plaintiff on 19 October 1976 while she was an employee of the defendant, Shelby Knit, Inc. The case was heard before Deputy Commissioner Dandelake on 21 April 1978. The parties stipulated that on the occasion of the alleged injury by accident the relationship of the employer and employee existed between plaintiff and defendant employer.\nThe evidence tended to show the following: Plaintiff had been employed for almost one year at the Shelby Knit plant in Shelby, North Carolina as a knitter. In addition to knitting, her duties included \u201cdoffing\u201d, a task which entailed pulling rods from rolls of cloth. On 19 October 1976, plaintiff reported to work at 11:00 p.m. for the third shift. That night she had four machines to doff. After doffing two of the machines, plaintiff started to doff the third. She testified on direct examination:\nThe rod was hard to pull out, unusually hard and I strained. I had to put my knees around it and pull up on the rod and when I did, all this pain came up in my spine.\n* * *\nOn this particular machine sometimes you could pull the rod out yourself and this night it seems like it was extra hard to pull out, but if it slips out, you can get it out, so I had to strain to get it out and I pulled it out myself. Some nights we have to call for [doff men] to help pull it out, but it was unusually hard to get out that night, extra tight ....\n* * * *\nI did not have anybody help pull it out because everyone was as busy as I was. We check our machines and do our own work. I did not call anybody because once you started to pull it, if it slips a little you feel like you can get it out, so you wrap your legs around it. You throw your leg on, or your knee and pull the rod out.\nOn cross-examination plaintiff testified that that particular machines was sometimes easy to doff and sometimes hard: \u201cIt was hard to pull out more times than it was easy to pull out.\u201d However, she stated that the night the injury occurred, it was \u201cextra hard,\u201d and the doff men were not there. Plaintiff used the same procedure which she usually used. Following the incident, plaintiff continued to experience pain in her back but continued to work through the shift. When she consulted a physician, he placed her in the hospital on 8 November 1976 for four weeks. In late November 1976 she had an operation for a ruptured disc and remained in bed until mid-February 1977. Plaintiff has not worked since 4 November 1976.\nThe Deputy Commissioner made findings of fact and conclusions of law denying compensation on the ground that plaintiff did not sustain an injury by \u201caccident\u201d within the meaning of G.S. 97-2(6). On appeal, the full Commission set aside the deputy commissioner\u2019s opinion and award and substituted its own findings of fact. Based on these findings it concluded that on 19 October 1976 plaintiff suffered an injury by accident arising out of and in the course of her employment and that, as a result of that injury, she became totally disabled on 3 November 1976. Defendant was ordered to pay plaintiff compensation at the rate of $85.97 per week for the period beginning 3 November 1976, to continue until plaintiff reaches maximum improvement. From this Opinion and Award, defendant Shelby Knit, Inc. appeals.\nLamb & Bridges, P.A., by Forrest Donald Bridges for plaintiff appellee.\nMullen, Holland & Harrell, P.A., by Thomas A. Robinson for defendant appellant." }, "file_name": "0022-01", "first_page_order": 50, "last_page_order": 56 }