Allsbrook v. Illinois Tool Works/Wilsonart ( 2014 )


Menu:
  • An unpublished opinion of the North Carolina Court of Appeals does not constitute
    controlling legal authority. Citation is disfavored, but may be permitted in
    accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
    A   p   p    e   l   l   a    t   e       P   r    o   c   e   d    u   r   e   .
    NO. COA13-651
    NORTH CAROLINA COURT OF APPEALS
    Filed:      1 April 2014
    BRETT ALLSBROOK,
    Employee,
    Plaintiff
    v.                                    From The North Carolina
    Industrial Commission
    I.C. No. W13767
    ILLINOIS TOOL WORKS/WILSONART,
    Employer,
    BROADSPIRE,
    Carrier,
    Defendants
    Appeal    by   plaintiff    from    opinion   and   award    entered    22
    October 2012 by the North Carolina Industrial Commission.                 Heard
    in the Court of Appeals 6 November 2013.
    Brett M. Allsbrook, pro se, for plaintiff-appellant.
    Hedrick Gardner Kincheloe & Garofalo, LLP, by M.                    Duane
    Jones and Elias W. Admassu, for defendants-appellees.
    DAVIS, Judge.
    Brett Allsbrook (“Plaintiff”) appeals from the Opinion and
    Award of the North Carolina Industrial Commission (“the Full
    -2-
    Commission”     or      “the        Commission”)          denying      his   workers’
    compensation     claim         against         Illinois      Tool     Works/Wilsonart
    (“Defendant”).       On appeal, Plaintiff primarily argues that the
    Commission failed to make sufficient findings of fact to support
    its determination that his injury was not a compensable injury
    by accident.     After careful review, we affirm the Commission’s
    opinion and award.
    Factual Background
    At the time of the hearing, Plaintiff was 52 years old.                       In
    November 2000, Plaintiff was hired by Defendant - a manufacturer
    of high-pressure decorative laminate and backer boards - as a
    packer, and in February 2008, he was reassigned to the position
    of saw helper.         He continued to work in that position until
    February 2009.         As a saw helper, Plaintiff’s responsibilities
    included     working     in    the    finishing          area   and   assisting    saw
    operators in cutting material to specific measurements.                           While
    working for Defendant, Plaintiff used two different saws to cut
    laminate and backer boards, a Schelling saw and a Mereen-Johnson
    saw.
    The   Schelling        saw    is    a     newer    saw   and     is   computer-
    controlled, allowing employees to load the laminate while the
    saw    automatically     pushes      and       pulls   the   laminate    through   the
    machine to make the appropriate cuts.                    The Mereen-Johnson saw is
    an older saw that requires more physical force by the operator
    -3-
    than the Schelling saw and is used as a back-up to the Schelling
    saw.     The Mereen-Johnson saw uses air pressure to help guide the
    laminate and backer boards through the cutting process.               When
    using the Mereen-Johnson saw, two employees load the laminate or
    backer board and then push it to other employees who guide the
    laminate or backer board through the cutting process.            After the
    cutting process is complete, an employee pushes the material to
    other employees who unload the material from the saw.
    On 26 February 2009, Plaintiff was working with several
    other employees to cut five foot by ten foot by one inch backer
    boards with the Mereen-Johnson saw.           In order to achieve the
    necessary cuts, two employees would pull the backer board onto
    the air table, cut the ends, and then push the backer board to
    Plaintiff.     Plaintiff would then rearrange the backer board to
    cut the other end and push the backer board down the air table
    to other employees, who would then remove it from the waist-high
    air table.     Plaintiff alleges that near the end of his shift on
    26 February 2009, he was bent at the waist at approximately a
    90-degree angle using the Mereen-Johnson saw, when he felt a pop
    in his chest.
    On 27 March 2009, Plaintiff gave a recorded statement to
    Mollie    Murphy,   a   representative   of   his   employer’s    workers’
    compensation carrier.      In this recorded statement, he stated the
    following, as captured in the Commission’s finding of fact 7:
    -4-
    Plaintiff indicated “We put in full size
    laminate which could be as large as 5 foot
    by 12 foot.”      Plaintiff further indicated
    that at the time of the alleged accident he
    was working on the Mereen-Johnson saw and
    that he had worked on that saw prior to
    February 26, 2009.         When asked by Ms.
    Murphy, “Marine [sic] Johnson though has
    been in operation still and there are
    occasions that you work on it just like you
    work on the um . . . the newer model?”
    Plaintiff responded in the affirmative.
    Plaintiff indicated that boards he was
    working with at the time of the alleged
    accident measured 5 feet by 8 to 10 feet,
    less   than   the    maximum    size Plaintiff
    indicated   he     worked     with.  Plaintiff
    described the angle at which he pushed
    boards   on   the     Mereen-Johnson  saw   as
    “awkward” in that he ended up leaning at
    almost a 90 degree angle due to the height
    of the table. However, this was the method
    Plaintiff normally used when pushing boards,
    and he stated with respect to the push in
    question that it was a normal push for him
    and that it was not uneven or any harder
    than he typically pushed.
    After being treated by his employer’s physician, Plaintiff
    sought treatment from Dr. Werner C. Brooks (“Dr. Brooks”), a
    board-certified orthopedic surgeon, on 11 March 2009.          Plaintiff
    received   treatment   for   A.C.   joint   and   sternoclavicular   joint
    strains and was ultimately diagnosed with a labral tear.             On 22
    May 2009, Dr. Brooks performed a right shoulder arthroscopy,
    acromioplasty, distal clavicectomy, and labral tendon repair on
    Plaintiff.
    Plaintiff continued to complain of problems with his right
    shoulder and sternoclavicular joint following his treatment with
    -5-
    Dr. Brooks.         On 27 July 2011, another orthopedic surgeon, Dr.
    Christopher L. Elder (“Dr. Elder”), examined Plaintiff.                                    Dr.
    Elder diagnosed Plaintiff with chronic “right shoulder pain and
    mechanical symptoms status post arthroscopy with a labral repair
    and subachromial decompression, distal clavicle excision” and
    “continued right S.C. joint pain, swelling, and instability with
    manageable     symptoms.”            Dr.     Elder        was   also      concerned       that
    Plaintiff had a recurrent labral tear and scheduled a right
    shoulder arthroscopy for 9 September 2011 in order to make a
    diagnosis.          Dr.    Elder     opined        that     Plaintiff’s         S.C.    joint
    symptoms were related to his initial injury in February 2009 and
    that his current symptoms were related to the shoulder surgery
    performed by Dr. Brooks.              Plaintiff has not worked for Defendant
    since April 2009.
    On    14    June       2011,      a     hearing       was     held    before       Deputy
    Commissioner Keisha M. Lovelace.                    On 29 March 2012, the deputy
    commissioner entered an opinion and award denying Plaintiff’s
    claim.    Plaintiff appealed to the Full Commission on 19 June
    2012.     On   22    October        2012,    the    Full    Commission          entered    its
    opinion and award affirming the deputy commissioner’s decision.
    Plaintiff appealed the Commission’s decision to this Court.
    Analysis
    Our    review         of   an    Opinion       and    Award      by   the    Industrial
    Commission     is    “limited       to    consideration         of    whether     competent
    -6-
    evidence supports the Commission’s findings of fact and whether
    the    findings    support     the        Commission’s       conclusions       of   law.”
    Richardson v. Maxim Healthcare/Allegis Grp., 
    362 N.C. 657
    , 660,
    
    669 S.E.2d 582
    , 584 (2008).                 With regard to the Commission’s
    findings of fact, this Court’s “duty goes no further than to
    determine whether the record contains any evidence tending to
    support the finding[s].”              
    Id. (citation and
    quotation marks
    omitted).      The    findings       of    fact     made    by   the   Commission     are
    conclusive on appeal if supported by competent evidence even if
    there is also evidence that would support a contrary finding.
    Nale v. Ethan Allen, 
    199 N.C. App. 511
    , 514, 
    682 S.E.2d 231
    ,
    234, disc. review denied, 
    363 N.C. 745
    , 
    688 S.E.2d 454
    (2009).
    The Commission’s conclusions of law, however, are reviewed de
    novo.     Gregory v. W.A. Brown & Sons, ___ N.C. App. ___, ___, 
    713 S.E.2d 68
    , 74, disc. review denied, ___ N.C. ___, 
    719 S.E.2d 26
    (2011).
    A plaintiff is entitled to compensation for an injury under
    the Workers’ Compensation Act “only if (1) it is caused by an
    accident, and (2) the accident arises out of and in the course
    of    employment.”         Pitillo    v.     N.C.    Dep’t       of   Envtl.   Health   &
    Natural    Res.,     151   N.C.   App.       641,    645,    
    566 S.E.2d 807
    ,   811
    (2002).     The plaintiff bears the burden of proving both elements
    of the claim.        Morrison v. Burlington Indus., 
    304 N.C. 1
    , 13,
    
    282 S.E.2d 458
    , 467 (1981).                Here, neither party disputes that
    -7-
    Plaintiff’s    injury   arose     out    of    and    in   the    course    of    his
    employment.       Rather,   the    sole       issue   on   appeal     is    whether
    Plaintiff’s injury occurred as a result of an “accident” within
    the meaning of the Workers’ Compensation Act.
    The terms “accident” and “injury” are separate and distinct
    concepts.     Gray v. RDU Airport Auth., 
    203 N.C. App. 521
    , 525,
    
    692 S.E.2d 170
    , 174 (2010).             An accident is “‘an unlooked for
    and untoward event which is not expected or designed by the
    person   who      suffers   the      injury,’”         that      involves     “‘the
    interruption of the routine of work and the introduction thereby
    of   unusual      conditions      likely       to     result     in      unexpected
    consequences.’”         Calderwood       v.    Charlotte-Mecklenberg          Hosp.
    Auth., 
    135 N.C. App. 112
    , 115, 
    519 S.E.2d 61
    , 63 (1999) (quoting
    Adams v. Burlington Indus., 
    61 N.C. App. 258
    , 260, 
    300 S.E.2d 455
    , 456 (1983)), disc. review denied, 
    351 N.C. 351
    , 
    543 S.E.2d 124
    (2000).
    “If an employee is injured while carrying on usual tasks in
    the usual way the injury does not arise by accident.”                    Gunter v.
    Dayco Corp., 
    317 N.C. 670
    , 673, 
    346 S.E.2d 395
    , 397 (1986).
    However, “when an interruption of the employee’s normal work
    routine occurs, introducing unusual conditions likely to result
    in   unexpected     consequences,        an    accidental        cause     will    be
    inferred.      The essence of an accident is its unusualness and
    unexpectedness . . . .”         
    Gray, 203 N.C. App. at 525
    , 692 S.E.2d
    -8-
    at 174 (2010) (internal citation and quotation marks omitted).
    In addition, “once an activity, even a strenuous or otherwise
    unusual activity, becomes a part of the employee’s normal work
    routine, an injury caused by such activity is not the result of
    an interruption of the work routine or otherwise an ‘injury by
    accident’ under the Workers’ Compensation Act.”    Bowles v. CTS
    of Asheville, 
    77 N.C. App. 547
    , 550, 
    335 S.E.2d 502
    , 504 (1985).
    Among the findings of fact made by the Commission were the
    following:
    3. As a saw helper, Plaintiff worked in the
    finishing area assisting saw operators in
    cutting material to specific measurements.
    Defendant-Employer uses two different saws
    to cut laminate and backer boards, a
    Schelling saw and a Mereen-Johnson saw.
    . . . .
    5. The Mereen-Johnson saw is an older saw
    than the Schelling saw. Cutting materials
    with   the   Mereen-Johnson   saw  is   more
    physically demanding than with the Schelling
    saw.   The   Mereen-Johnson  saw  uses   air
    pressure to help guide the laminate and
    backer boards through the cutting process,
    however, the saw operators and saw helpers
    have to use more effort to push and pull the
    material through the Mereen-Johnson saw.
    Defendant-Employer cuts 5 foot by 10 foot
    pieces of laminate weighing approximately 18
    to 19 pounds and 5 foot by 10 foot pieces of
    backer board weighing at least 100 pounds
    and up to approximately 400 pounds. When
    using the Mereen-Johnson saw, two employees
    load the laminate or backer board, and then
    push it to other employees who guide the
    laminate or backer board through the cutting
    -9-
    process.   After  the   cutting  process  is
    complete, an employee pushes the material to
    other employees who unload the material from
    the saw. The Mereen-Johnson saw is used as a
    "back-up" saw to help in times of heavy
    work-loads or to cut backer boards and other
    items not requiring the same level of
    precision and accuracy as laminate.
    6. On February 26, 2009, Plaintiff was
    working with several other employees to cut
    5 foot by 10 foot by 1 inch thick backer
    boards on the Mereen-Johnson saw. In order
    to achieve the necessary cuts, two employees
    pulled the backer board onto the air table,
    cut the ends or sides, and then pushed the
    backer board to Plaintiff. Plaintiff then
    rearranged the backer board to cut the other
    end and then pushed the backer board down
    the air table to other employees who removed
    it from the air table and placed it on a
    pallet. To push the backer board after
    making his cuts, Plaintiff would lean over
    the air table, which was waist-high, bend at
    approximately a 90 degree angle, and push
    the backer board. Plaintiff alleges that,
    while pushing a board near the end of his
    shift on February 26, 2009, he felt a pop in
    his chest.
    7. On March 27, 2009, Plaintiff gave a
    recorded statement to Mollie Murphy from
    Defendant-Carrier.   When   describing   his
    position to Ms. Murphy, Plaintiff indicated
    "We put in full size laminate which could be
    as large as 5 foot by 12 foot." Plaintiff
    further indicated that at the time of the
    alleged accident he was working on the
    Mereen-Johnson saw and that he had worked on
    that saw prior to February 26, 2009. When
    asked by Ms. Murphy, "Marine (sic) Johnson
    though has been in operation still and there
    are occasions that you work on it just like
    you work on the um...the newer model?"
    Plaintiff responded in the affirmative.
    Plaintiff indicated that boards he was
    working with at the time of the alleged
    -10-
    accident measured 5 feet by 8 to 10 feet,
    less   than   the    maximum   size  Plaintiff
    indicated   he     worked    with.   Plaintiff
    described the angle at which he pushed
    boards   on   the     Mereen-Johnson  saw   as
    "awkward" in that he ended up leaning at
    almost a 90 degree angle due to the height
    of the table. However, this was the method
    Plaintiff normally used when pushing boards,
    and he stated with respect to the push in
    question that it was a normal push for him
    and that it was not uneven or any harder
    than he typically pushed. Relative to the
    circumstances     surrounding    his   alleged
    accident, Plaintiff went on to state, "So um
    again nothing out of the ordinary."
    8. Plaintiff testified at the hearing before
    the Deputy Commissioner that at the time the
    alleged accident occurred, he pushed the
    backer board in the same manner he normally
    did when working on the Mereen-Johnson saw.
    Plaintiff contended, however, that he did
    not use the Mereen-Johnson saw on a regular
    basis, and that at times the saw went unused
    for months at a time.
    9. Plaintiff's testimony about the frequency
    with which the Mereen-Johnson saw was used
    is in direct contradiction to the testimony
    of Harold Whitted and Charles Dennis Clark.
    Mr. Whitted is Plaintiff's former supervisor
    and no longer works for Defendant-Employer.
    He testified that using the Mereen-Johnson
    saw in the manner Plaintiff testified he did
    on February 26, 2009 was a normal job duty
    for an employee in Plaintiff's position. Mr.
    Clark, who is currently the manager for
    Defendant-Employer's Fletcher facility, was
    previously the manager of the pressing
    department, which included the finishing
    area where Plaintiff worked. He testified
    that Plaintiff used both the Schelling saw
    and the Mereen-Johnson saw on a regular
    basis,   and   that  the   duties  Plaintiff
    testified he was performing at the time he
    was injured were consistent with Plaintiff's
    -11-
    normal job duties.
    . . . .
    15. The Full Commission gives greater weight
    to the testimony of Mr. Whitted and Mr.
    Clark    and    finds,     based  upon   the
    preponderance of the evidence in view of the
    entire record that, at the time his injury
    occurred on February 26, 2009, Plaintiff was
    working with other employees to cut material
    which was consistent in size with the
    materials with which he normally worked.
    Plaintiff's   use,   along   with the  other
    employees, of the Mereen-Johnson saw was
    also not unusual, nor was the manner in
    which he pushed the board any different from
    the manner in which Plaintiff typically
    pushed boards when working on the Mereen-
    Johnson saw. As such, the Full Commission
    finds that Plaintiff was engaged in his work
    duties in his usual and . . . customary
    manner, and there was no interruption of his
    normal work routine likely to result in
    unexpected consequences.
    Based on these factual findings, the Commission issued the
    following conclusions of law:
    1.   Under   the   North  Carolina   Workers’
    Compensation Act, an injury arising out of
    and   in   the   course  of   employment   is
    compensable only if it is caused by an
    “accident” and the claimant bears the burden
    of proving an accident has occurred. An
    accident is an unlooked for and untoward
    event which is not expected or designed by
    the person who suffers the injury. An
    accident therefore involves the interruption
    of the routine of work and the introduction
    thereby of unusual conditions likely to
    result in unexpected consequences.
    2.   In the instant case, Plaintiff has
    failed to establish that he sustained an
    injury by accident within the meaning of the
    -12-
    Act on February 26, 2009. N.C. Gen. Stat. §
    97-2(6).   Plaintiff    was   performing   his
    regular job in his normal, usual manner at
    the time of the injury.     Although Plaintiff
    may have assumed an awkward body position
    when pushing the heavy board, the position,
    and the size of the board were not unusual,
    nor was the use of the Mereen-Johnson saw to
    cut the board.      Plaintiff had previously
    worked with materials of the same size, as
    evidenced by his recorded statement, and,
    per his statement, there was nothing unusual
    about the push he made at the time he felt
    the pop and the body position resulting from
    the push saw was the body position he
    normally assumed when pushing boards on the
    Mereen-Johnson saw.
    As a result of these findings of fact and conclusions of
    law, the Commission ultimately determined that ”Plaintiff failed
    to establish that he sustained an injury by accident within the
    meaning of the [Workers’ Compensation] Act.”
    In arguing for the reversal of the Commission’s decision,
    Plaintiff    claims   there   is    “no   evidence”   supporting   the
    Commission’s finding that Plaintiff was not injured by accident
    and that he was instead carrying out his regular job duties in
    his usual manner.     Plaintiff attempts to discredit the testimony
    of Mr. Harold Whitted (“Mr. Whitted”) and Mr. Dennis Clark (“Mr.
    Clark”), both of whom testified that the use of the Mereen-
    Johnson saw in the manner described by Plaintiff was a normal
    job duty for him, by citing the witnesses’ failure to produce a
    log book regarding the number of hours and number of times the
    -13-
    Mereen–Johnson    saw   was   used    in    order   to   corroborate   their
    testimony.
    In making this argument, Plaintiff asks us to substitute
    our own views of the witnesses’ credibility for those of the
    Commission.      This we cannot do.         Our Supreme Court has made
    clear that:
    (1) the Full Commission is sole judge of the
    weight and credibility of the evidence, and
    (2) appellate courts reviewing Commission
    decisions are limited to reviewing whether
    any   competent    evidence   supports   the
    Commission’s findings of fact and whether
    the    findings   of    fact   support   the
    Commission’s conclusions of law.
    Deese v. Champion Int’l Corp., 
    352 N.C. 109
    , 116, 
    530 S.E.2d 549
    , 553 (2000).
    Moreover, when    making determinations        on credibility, the
    Industrial Commission is not obligated to explain why it deemed
    certain evidence credible or not credible.               
    Id. This is
    so
    because
    [r]equiring the Commission to explain its
    credibility determinations and allowing the
    Court of Appeals to review the Commission’s
    explanation     of     those      credibility
    determinations would be inconsistent with
    our   legal   system’s  tradition    of   not
    requiring the fact finder to explain why he
    or she believes one witness over another or
    believes one piece of evidence is more
    credible than another.
    
    Id. -14- Here,
    the Commission’s findings of fact make clear that it
    deemed Mr. Whitted’s and Mr. Clark’s testimony to be credible.
    In finding of fact 15, the Commission stated:
    15. The Full Commission gives greater weight
    to the testimony of Mr. Whitted and Mr.
    Clark    and    finds,     based  upon   the
    preponderance of the evidence in view of the
    entire record that, at the time his injury
    occurred on February 26, 2009, Plaintiff was
    working with other employees to cut material
    which was consistent in size with the
    materials with which he normally worked.
    Plaintiff's   use,   along   with the  other
    employees, of the Mereen-Johnson saw was
    also not unusual, nor was the manner in
    which he pushed the board any different from
    the manner in which Plaintiff typically
    pushed boards when working on the Mereen-
    Johnson saw. As such, the Full Commission
    finds that Plaintiff was engaged in his work
    duties in his usual and . . . customary
    manner, and there was no interruption of his
    normal work routine likely to result in
    unexpected consequences.
    Competent   evidence   supports    this   finding.   Mr.   Whitted,
    Plaintiff’s former supervisor, testified that any employees who
    worked with the saws “could work on either saw at you know,
    given times.”   He also responded affirmatively when asked if
    both saws were rotated in their use by Plaintiff’s department.
    Mr. Whitted explained that
    [t]he initial saw crew . . . could be asked
    to work on either saw. Primarily the
    Schelling saw, that was our primary saw, but
    depending on what needed to be cut or if we
    needed assistance from other people, then
    we’d try to split the saw personnel up to
    work with the less experienced people, and
    -15-
    so they could work on either saw at, you
    know, given times.
    Similarly, Mr. Clark, the manager of the Fletcher facility,
    also testified in the affirmative when asked if he agreed that
    both the “Schelling and the Mereen-Johnson saws were used on a
    regular basis by the staff, including Plaintiff.”                       Mr. Clark
    further testified that both the physical activity of “pushing
    and pulling” and the use of both saws was consistent with what
    the “normal job involved for [Plaintiff] and other people in
    that department.”
    This     testimony    by     Mr.    Whitted    and   Mr.   Clark   serves    as
    competent     evidence     that     directly       supports     the   Commission’s
    finding      that,    at   the    time    of    the   injury,     Plaintiff      was
    performing his work duties in his usual and customary manner.
    This,   in    turn,   supports     the    Commission’s     ultimate     conclusion
    that Plaintiff failed to show that he sustained an injury by
    accident within the meaning of the Workers’ Compensation Act.
    Plaintiff also contends that his statements that he had
    worked on the Mereen-Johnson saw previously did not establish
    any “regularity” and that the Commission erred in finding that
    this was part of his normal job duties.                       However, Plaintiff
    admits in his brief that “it is clear from the preponderance of
    the evidence that [he] had previously worked on the                        Mereen-
    -16-
    Johnson saw.”   This admission by Plaintiff simply adds to the
    competent evidence supporting the Commission’s determination.
    Conclusion
    For the reasons stated above, the Opinion and Award of the
    Full Commission is affirmed.
    AFFIRMED.
    Judges ELMORE and McCULLOUGH concur.
    Report per Rule 30(e).