{ "id": 8527216, "name": "JAMES GADDY, Employee-Plaintiff v. ANSON WOOD PRODUCTS, Employer, SELF-INSURED, (HEWITT, COLEMAN & ASSOCIATES), Defendant", "name_abbreviation": "Gaddy v. Anson Wood Products", "decision_date": "1988-12-30", "docket_number": "No. 8810IC250", "first_page": "483", "last_page": "489", "citations": [ { "type": "official", "cite": "92 N.C. App. 483" } ], "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": "387 N.Y.S. 2d 724", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1976, "opinion_index": 0 }, { "cite": "54 A.D. 2d 790", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 2989227, 2990085 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ad2d/54/0790-01", "/ad2d/54/0790-02" ] }, { "cite": "153 S.E. 2d 591", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1930, "pin_cites": [ { "page": "593" } ], "opinion_index": 0 }, { "cite": "199 N.C. 38", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8594993 ], "year": 1930, "pin_cites": [ { "page": "40" } ], "opinion_index": 0, "case_paths": [ "/nc/199/0038-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-31", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(5)" } ], "opinion_index": 0 }, { "cite": "327 S.E. 2d 887", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 327", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719235, 4724236, 4726804, 4722549, 4725112 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0327-05", "/nc/313/0327-04", "/nc/313/0327-03", "/nc/313/0327-01", "/nc/313/0327-02" ] }, { "cite": "322 S.E. 2d 638", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "71 N.C. App. 540", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525870 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/71/0540-01" ] }, { "cite": "106 S.E. 2d 573", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "opinion_index": 0 }, { "cite": "249 N.C. 387", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615755 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/nc/249/0387-01" ] }, { "cite": "232 S.E. 2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "453" } ], "opinion_index": 0 }, { "cite": "292 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567907 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "218" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0210-01" ] }, { "cite": "340 S.E. 2d 111", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "113" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 572", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522105 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/79/0572-01" ] }, { "cite": "189 S.E. 2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "771" } ], "opinion_index": 0 }, { "cite": "15 N.C. App. 98", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547781 ], "year": 1972, "pin_cites": [ { "page": "101" } ], "opinion_index": 0, "case_paths": [ "/nc-app/15/0098-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-12", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1988, "pin_cites": [ { "page": "(1)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 627, "char_count": 12729, "ocr_confidence": 0.825, "pagerank": { "raw": 6.5754854646575e-08, "percentile": 0.4027391172226643 }, "sha256": "86141044a37e76ca624d6eff604f5115e3c89c0df4394a3516682806e83cab1f", "simhash": "1:18a30a2bd0dbb42a", "word_count": 2098 }, "last_updated": "2023-07-14T21:55:11.858082+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Johnson and Parker concur." ], "parties": [ "JAMES GADDY, Employee-Plaintiff v. ANSON WOOD PRODUCTS, Employer, SELF-INSURED, (HEWITT, COLEMAN & ASSOCIATES), Defendant" ], "opinions": [ { "text": "COZORT, Judge.\nIn this workers\u2019 compensation case, defendant appeals from an order of the Industrial Commission finding that plaintiffs injury was not proximately caused by his intoxication and awarding plaintiff 20 weeks of permanent partial disability benefits for the loss of a finger. We affirm.\nOn 17 June 1985, the date of his injury, plaintiff had been employed by defendant Anson Wood Products for approximately one year. Plaintiffs job was to pull and stack lumber by grade and width. Other employees were responsible for putting lumber onto a vibrating conveyor (the vibrator) that shook the lumber into a chipper, a machine that grinds lumber into chips. The chips were then transported by rail to a paper company.\nOn the date in question, the vibrator had stopped running due to a buildup of sawdust and debris. One of plaintiffs coworkers, whose job it was to keep the vibrator unjammed, was trying to unjam the vibrator when plaintiff left his position and attempted to assist him. As plaintiff placed his hand on or near the vibrator\u2019s belt, or drive mechanism, the vibrator suddenly \u201ccaught up\u201d and began running, amputating the distal phalange of plaintiffs fourth, or little, finger and lacerating other fingers on his right hand.\nPlaintiff was treated at the emergency room of Anson County Hospital, where his lacerations were sutured. The treating physician also excised part of the bone of the middle phalange of plaintiffs fourth finger in order to pull tissue over the amputated area for suturing. An entry on plaintiffs medical records indicates that plaintiffs blood alcohol level was 387 milligrams per liter, or .387.\nAt the hearing before Chief Deputy Commissioner Dianne C. Sellers, the parties stipulated to the employer-employee relationship, applicability of the Workers\u2019 Compensation Act, plaintiffs average weekly wage, defendant\u2019s self-insured status, and the date of plaintiffs injury. In an Opinion and Award filed 13 March 1987, the Deputy Commissioner made the following additional findings of fact:\n1. Plaintiff had worked for the defendant employer approximately one year as a lumber puller and separator of the lumber by grade and width.\n2. On or about 17 June 1985 plaintiff was working in such capacity when a co-worker began having trouble on a vibrating conveyor which shakes slabs of wood into the chipper. This conveyor was approximately 15 feet from where the plaintiff worked. Since the workers had been instructed to assist co-workers, plaintiff offered his assistance to the operator of the conveyor. As he placed his hand in the mechanical parts of the conveyor, it suddenly and abruptly started working, causing a traumatic amputation of a portion of his fifth finger on his right hand.\n3. Plaintiff was taken to the emergency room where he was treated by Gultekin Ertugrul, M.D., who excised a portion of the bony middle phalange and brought soft tissue over the bone to cover the amputated area. In addition, plaintiff received sutures for lacerations to his second, third and fourth fingers on the dorsal side of his right hand.\n4. On or about 17 June 1985 plaintiff sustained an interruption of his work routine when he experienced a traumatic partial amputation of his right fifth finger which was not a proximate result of his intoxication.\n5. As a result of said injury plaintiff was unable to earn the wages which he was earning at the time of his injury in the same or any other employment from 18 June 1985 to 16 August 1985 when he was able to return to work and at which time he sustained by virtue of the traumatic amputation and the surgical excision, the loss of the fifth finger of his right hand.\nBased on these findings, the Deputy Commissioner made the following conclusions of law:\n1. On 17 June 1985 plaintiff sustained an injury by accident arising out of and in the course of his employment which was not proximately caused by his intoxication. G.S. \u00a7 97-2(6); G.S. \u00a7 97-12(1).\n2. As a result of said injury by accident plaintiff is entitled to temporary total disability compensation for 8.4286 weeks at a weekly rate of $108.67. G.S. \u00a7 97-29.\n3. As a further result of said injury by accident plaintiff is entitled to 20 weeks of permanent partial disability at a weekly rate of $108.67. G.S. \u00a7 97-31(5).\nAn award corresponding to these findings and conclusions was entered.\nOn 25 November 1987, the Full Commission adopted the Deputy Commissioner\u2019s Opinion and Award, and affirmed. The Commission added:\nThe Full Commission is of the opinion that undoubtedly at the time complained of the employee was under the influence of alcohol. However, we are of the opinion that plaintiffs intoxication did not occasion his injury. At the time complained of he was at work, and although technically performing a task not usually performed by him, this was being done under instructions from his superior that the employees were to help each other in the work of the employer. It was pursuant to this instruction that plaintiff was at the point where he was located on the occasion of his injury. Further, there is no evidence that his intoxication made him carelessly place his hand in the machine. We certainly do not approve of one working with this much alcohol in his system. However, unless the intoxication is one of the proximate causes of the injury \u2014 and the evidence would not support such a finding \u2014 the claim is a compensable one.\nDefendant appeals.\nBy its first assignment of error, defendant contends that there was no competent evidence to support the Commission\u2019s finding that plaintiffs intoxication was not the proximate cause of his injury. Moreover, defendant argues that the Commission made no finding of fact as to the cause of the accident and that plaintiffs act in placing his hand on the vibrator was an \u201cobvious hazard\u201d that can be explained only by plaintiffs intoxication. We disagree.\nThe law governing this case is found in Chapter 97 of our General Statutes, which provides in pertinent part:\nNo compensation shall be payable if the injury or death to the employee was proximately caused by:\n(1) His intoxication ....\nN.C. Gen. Stat. \u00a7 97-12(1) (1988).\nIntoxication alone will not work a forfeiture of the employee\u2019s benefits; the statute provides for a forfeiture only if the injury was proximately caused by the intoxication. Lassiter v. Town of Chapel Hill, 15 N.C. App. 98, 101, 189 S.E. 2d 769, 771 (1972). The burden of proving this causal connection is placed on the employer as an affirmative defense. See Torain v. Fordham Drug Co., 79 N.C. App. 572, 340 S.E. 2d 111 (1986). The employer must prove that the employee\u2019s intoxication was \u201cmore probably than not a proximate cause of the accident and resulting injury.\u201d Id. at 574, 340 S.E. 2d at 113.\nOur review of the Commission\u2019s decision is limited to whether there is any competent evidence to support the Commission\u2019s findings of fact, and whether the findings of fact justify its conclusions of law. Inscoe v. DeRose Indus. Inc., 292 N.C. 210, 232 S.E. 2d 449 (1977). The determination of disputed questions of fact involves weighing the evidence, which is a function of the fact-finder and not of the reviewing court. Osbourne v. Colonial Ice Co., 249 N.C. 387, 106 S.E. 2d 573 (1959).\nAt the hearing, plaintiff and his co-worker testified that the vibrator was jammed and that they were attempting to unjam it when it \u201ccaught up\u201d and injured plaintiffs fingers. Both testified that they had been instructed by the employer to assist fellow employees who needed help. Each further testified that plaintiff did not fall into the vibrator. There was no evidence to support a finding that defendant fell or lost his footing, or that, had plaintiff not been intoxicated, he would not have placed his hand on the vibrator belt. Therefore, there was substantial evidence to support the Commission\u2019s findings.\nDefendant\u2019s reliance on Anderson v. Century Data Sys., Inc., 71 N.C. App. 540, 322 S.E. 2d 638 (1984), disc. review denied, 313 N.C. 327, 327 S.E. 2d 887 (1985), is misplaced. In Anderson, the employee was injured when the vehicle he was driving crossed the center line and ran into a truck in the oncoming lane of traffic. The employee\u2019s blood alcohol level was .199. This Court reversed the Industrial Commission\u2019s award of benefits, because there was no evidence of any cause of the accident other than the intoxication. The Commission had, in effect, erroneously placed on the employer the burden of disproving all possible causes of the injury. In the case sub judice, however, the Commission found that plaintiff was injured because he was attempting to help a fellow employee. This finding is substantially supported by the evidence and is sufficient to explain the cause of plaintiffs injury. That plaintiff may have erred in judgment does not mandate the conclusion that the error was the result of his intoxication. See Inscoe, 292 N.C. at 218, 232 S.E. 2d at 453. Defendant\u2019s first assignment of error is overruled.\nDefendant also assigns as error the award of 20 weeks of permanent partial disability benefits. Defendant contends that plaintiff s schedule recovery was limited to 10 weeks of compensation because only the distal phalange of plaintiffs finger was amputated. We do not agree.\nN.C. Gen. Stat. \u00a7 97-31 provides for the following compensation in addition to compensation payable during the healing period:\n(5) For the loss of a fourth finger, commonly called the little finger, sixty-six and two-thirds percent (66%%) of the average weekly wages during 20 weeks.\n* * *\n(7) The loss of more than one phalange shall be considered the loss of the entire finger ....\nN.C. Gen. Stat. \u00a7 97-31(5)-(7) (1988). The statute \u201cshould be liberally construed to the end that the benefits thereof should not be denied upon technical, narrow and strict interpretation.\u201d Johnson v. Asheville Hosiery Co., 199 N.C. 38, 40, 153 S.E. 2d 591, 593 (1930).\nIncluded among the Deputy Commissioner\u2019s findings of fact, which were adopted by the Full Commission, was a finding that plaintiffs treating physician excised a portion of the bone of the middle phalange in order to cover the remaining bone with tissue. This finding is directly supported by the physician\u2019s deposition testimony. Therefore, plaintiffs injury resulted in the loss of more than one phalange. See Flagg v. GAF Corp., 54 A.D. 2d 790, 387 N.Y.S. 2d 724 (1976), construing identical language contained in the New York Workmen\u2019s Compensation Law. The fact that amputation of part of the middle phalange was necessitated by the surgical procedure used to suture the amputation does not affect plaintiffs recovery under \u00a7 97-31.\nFor the foregoing reasons, the decision of the Industrial Commission is\nAffirmed.\nJudges Johnson and Parker concur.", "type": "majority", "author": "COZORT, Judge." } ], "attorneys": [ "Taylor and Bower by H. P. Taylor, Jr., for plaintiff appellee.", "Hedrick, Eatman, Gardner & Kincheloe by Edward L. Eat-man, Jr., and Mika Z. Savir for defendant appellant." ], "corrections": "", "head_matter": "JAMES GADDY, Employee-Plaintiff v. ANSON WOOD PRODUCTS, Employer, SELF-INSURED, (HEWITT, COLEMAN & ASSOCIATES), Defendant\nNo. 8810IC250\n(Filed 30 December 1988)\n1. Master and Servant \u00a7 58\u2014 workers\u2019 compensation \u2014 intoxication of employee-accident not caused by intoxication \u2014 no forfeiture of benefits\nIntoxication alone will not work a forfeiture of an employee\u2019s workers\u2019 compensation benefits; rather, he forfeits his benefits only if the injury was proximately caused by the intoxication, and the burden of proving this causal connection is placed on the employer as an affirmative defense. There was substantial evidence to support the Industrial Commission\u2019s findings that plaintiffs intoxication was not the proximate cause of his injury where the evidence tended to show that plaintiff, who had been instructed by the employer to help fellow employees who needed it, was assisting a co-worker to unjam a conveyor; plaintiff placed his hand on the conveyor when it \u201ccaught up\u201d and injured his fingers; and there was no evidence to support a finding that plaintiff fell or lost his footing, or that, had plaintiff not been intoxicated, he would not have placed his hand on the belt. N.C.G.S. \u00a7 97-12(1).\n2. Master and Servant \u00a7 73\u2014 workers\u2019 compensation \u2014 loss of finger \u2014 amount of compensation\nPlaintiffs injury resulted in the loss of more than one phalange, and plaintiff was thus entitled to an award of permanent partial disability for loss of a finger under N.C.G.S. \u00a7 97-31(5), (7), where a physician excised a portion of the bone of the middle phalange in order to cover the remaining bone with tissue.\nAppeal by defendant from Opinion and Award of the North Carolina Industrial Commission entered 25 November 1987. Heard in the Court of Appeals 31 August 1988.\nTaylor and Bower by H. P. Taylor, Jr., for plaintiff appellee.\nHedrick, Eatman, Gardner & Kincheloe by Edward L. Eat-man, Jr., and Mika Z. Savir for defendant appellant." }, "file_name": "0483-01", "first_page_order": 513, "last_page_order": 519 }