Smith v. DHL Corp. , 70 N.C. App. 124 ( 1984 )

EAGLES, Judge.

Defendants assign as error the Industrial Commission’s finding and conclusion that plaintiff sustained an injury by accident arising out of and in the course of her employment. Defendants contend that the finding and conclusion are not supported by competent evidence in the record and are therefore erroneous and contrary to law. We do not agree.

Findings of fact made by the Commission are conclusive on appeal when supported by competent evidence, even when there is evidence to support a contrary finding of fact. Walston v. Burlington Industries, 304 N.C. 670, 285 S.E. 2d 822 (1982). We must therefore determine whether there is competent evidence to support the Full Commission’s Finding of Fact Number 3. It reads: “On December 21, 1979 plaintiff sustained an injury by accident arising out of and in the course of her employment.”

We note that the Full Commission’s Finding of Fact Number 3 is, by its terms, a conclusion of law. However, our Supreme Court has held that “[w]hether an injury arose out of and in the course of employment is a mixed question of law and fact, and where there is evidence to support the Commissioner’s findings in this regard, we are bound by those findings.” Hoffman v. Truck Lines, Inc., 306 N.C. 502, 506, 293 S.E. 2d 807, 809 (1982), citing Barham v. Food World, 300 N.C. 329, 331, 266 S.E. 2d 676, 678 (1980). Here, the evidence is sufficient to support the Full Commission’s finding of fact.

In our review, we first consider whether the injury suffered by plaintiff was the result of an accident. The term accident, as used in the Workers’ Compensation Act, has been defined as, (1) an unlooked for and untoward event which is not expected or designed by the injured employee; (2) a result produced by a fortuitous cause. O’Mary v. Land Cleaning Corp., 261 N.C. 508, 510, 135 S.E. 2d 193, 194 (1964).

Here, there was medical testimony that an airline flight exposed plaintiff to a condition (fluctuating cabin pressure) capable of producing the unexpected consequences of a fistula. Clearly this was an unlooked for and untoward event which was neither expected nor designed by the plaintiff. Further, Dr. Robert Lawrence testified that such change in cabin pressure in the airplane could cause a fistula and that since plaintiffs “symptoms were not there before the flight and occurred during and were present after then, it would have to occur at that time ... I would have to date it to that very time.” This evidence supports the Full Commission’s finding of an accidental injury.

We next consider whether this accidental injury arose out of and in the course of plaintiffs employment. Defendants concede that it did. Plaintiffs evidence consisted of testimony that 21 December 1979 was the first time she had flown on a commercial airliner for her employer and that this flight was an interruption of her normal work routine. This, combined with the medical testimony, is sufficient to support a finding that the accident “arose out of’ plaintiffs employment. See Lefler v. Lexington City Schools, 60 N.C. App. 194, 298 S.E. 2d 404 (1982).

We hold that there was sufficient evidence to support the Commission’s finding and conclusion that plaintiff sustained an injury by accident arising out of and in the course of her employment.

Affirmed.

Judges Arnold and Whichard concur.