Dyer v. MacK Foster Poultry & Livestock, Inc. , 50 N.C. App. 291 ( 1981 )

273 S.E.2d 321 (1981)

Annie Greene DYER, Plaintiff,
v.
MACK FOSTER POULTRY & LIVESTOCK, INC., Employer, Travelers Insurance Company, Carrier, Defendants.

No. 8010IC334.

Court of Appeals of North Carolina.

January 6, 1981.

Brewer & Freeman by Paul W. Freeman, Jr., Wilkesboro, for plaintiff-appellant.

No brief filed for defendant-employer.

No brief filed for defendant-carrier.

WHICHARD, Judge.

It is well-established in this jurisdiction that

[u]nder the [Workers'] Compensation Act, the North Carolina Industrial Commission is constituted the agency to hear evidence, resolve conflicts therein, make findings of fact, and state its conclusions. If the findings are supported by competent evidence, they are conclusive on the courts.

Jackson v. Highway Commission, 272 N.C. 697, 700, 158 S.E.2d 865, 867 (1968). Applying this principle to the evidence in the record here, we find the following:

The plaintiff testified that it was a part of her normal work routine to operate the packers and to lift the packed cases, placing them on top of each other. She testified: "[A]s we get these boxes full, we stack [them] up; and that's what I was doing when I had this catch in my back. I was packing big eggs." She further testified: "I was reaching down getting the eggs. I was stooping down. The day before when I picked up the flats of eggs I stooped down then." (Emphasis supplied.) Finally, she testified: "I reached down to get my eggs and when I reached down, I couldn't get back up. I guess it was the same way I had reached down before." (Emphasis supplied.)

We find that the testimony of plaintiff quoted above clearly constituted competent evidence from which the Hearing Commissioner (and the Full Commission by adoption) could have found that there was "no interruption of [plaintiff's] work routine or the introduction of some new circumstance not a part of the usual work routine." The finding is thus binding on this Court.

The Opinion and Award of the Full Commission found the Opinion and Award of the Hearing Commission to be "a proper application of the law of this State to the facts of record", citing Reams v. Burlington Industries, 42 N.C.App. 54, 255 S.E.2d 586 (1979). In Reams the plaintiff's duties "consisted of lifting bales of cloth weighing 70 to 80 pounds, placing them on a measure graft, inspecting the cloth, and removing the bales from the measure graft." Reams, 42 N.C.App. at 55, 255 S.E.2d at 587. Plaintiff ordinarily inspected no more than 30 bales of cloth per day. On the date his injury occurred another employee was absent from work, and plaintiff was asked to perform the absent employee's duties. Plaintiff performed these duties for approximately two hours during which he handled approximately 100 bales of cloth, and then informed his supervisor he could no longer perform the job. He subsequently discovered that he had suffered a ruptured intervertebral disc. This Court affirmed the Industrial Commission's order which concluded that the plaintiff did not "sustain an injury by accident" within the meaning of section 97-2(6) of the Workers' Compensation Act, stating,

We do not think that the mere fact that the plaintiff was performing a task for his employer which involved a greater volume of lifting than his ordinarily assigned task may be taken as an indication that an injury he sustained while performing the work was the result of an accident within the meaning of the Act.

Reams, 42 N.C.App. at 57, 255 S.E.2d at 588 (emphasis supplied).

The only basis we find for distinguishing the facts in this case from those in Reams is that here the plaintiff was performing the work of two other employees rather than one. We do not find that distinction sufficient to merit a different result. The evidence here permitted the Hearing Commissioner (and the Full Commission by adoption) to find facts on which to base a conclusion that this plaintiff, like the plaintiff in Reams, was, on the date her injury was incurred, simply engaged in "a greater volume of lifting than [was her] ordinarily assigned task." Under the decision in Reams, this would not render her performance at the time of the injury other than "a part of the usual work routine."

See also Beamon v. Grocery, 27 N.C.App. 553, 219 S.E.2d 508 (1975), and cases cited.

There being competent evidence to support the findings of the Hearing Commissioner which were adopted by the Full Commission, and the Full Commission having concluded correctly that the findings dictate a denial of plaintiff's claim by virtue of the decision of this Court in Reams, the decision of the North Carolina Industrial Commission is

Affirmed.

CLARK and WEBB, JJ., concur.