IN THE COURT OF APPEALS OF NORTH CAROLINA
2021-NCCOA-651
No. COA21-70
Filed 7 December 2021
North Carolina Industrial Commission, IC No. 18-018836
JENNIFER ALDRIDGE, Employee, Plaintiff
v.
NOVANT HEALTH, INC., Employer (Self-Insured), Defendant
Appeal by Defendant from an Opinion and Award entered 30 September 2020
by the North Carolina Industrial Commission. Heard in the Court of Appeals 20
October 2021.
Campbell & Associates, by Bradley H. Smith, for plaintiff-appellee.
Jason P. Burton for defendant-appellant.
HAMPSON, Judge.
Factual and Procedural Background
¶1 Novant Health, Inc., (Defendant) appeals from an Opinion and Award entered
by the Full Commission (Commission) of the North Carolina Industrial Commission
concluding Jennifer Aldridge (Plaintiff) suffered an injury by accident and granting
Plaintiff’s claim for compensation under the Workers’ Compensation Act. The Record
reflects the following: ALDRIDGE V. NOVANT HEALTH, INC.
Opinion of the Court
¶2 Plaintiff began working as a registered nurse for Defendant in November 2010.
Plaintiff worked at “Stanback Rehabilitation” unit in Rowan Hospital in Salisbury,
North Carolina. On 7 March 2018, Plaintiff was assigned to work on the “med-surg
unit”—not her usually assigned unit. On that day, Kayla Beeker (Beeker) a certified
nursing assistant (CNA), asked Plaintiff to assist Beeker in changing a pad
underneath a patient who had soiled herself. The patient was “very large” weighing
between 300 and 400 pounds. While Beeker stood on one side of the patient and
pulled the patient’s hip toward Beeker, Plaintiff stood on the other side and pushed
the patient’s hip with Plaintiff’s left hand and pulled on the soiled pad with her right
hand.
¶3 As Plaintiff pulled the pad, she heard a “snapping sound” and felt “a very sharp
pain and burning sensation that went from [her] wrist to [her] elbow” and to her
shoulder, neck, and back. Plaintiff had to pull with more force than usual because of
the patient’s size. Moreover, the patient did not help as Plaintiff tried to pull the pad
from under the patient. Plaintiff sought medical treatment, including surgery, as a
result of her injury. Plaintiff filed a Notice of Accident with Defendant. Defendant
denied Plaintiff’s workers’ compensation claim on the basis that Plaintiff’s injury was
“not the result of an accident or sudden traumatic event.”
¶4 On 31 July 2018, Plaintiff filed a request for a hearing with the Industrial
Commission on her compensation claim. Plaintiff’s compensation claim came on for ALDRIDGE V. NOVANT HEALTH, INC.
hearing on 17 January 2019 before a Deputy Commissioner. The Deputy
Commissioner heard testimony from both Plaintiff’s and Defendant’s witnesses. In
addition to the factual circumstances leading to Plaintiff’s injury, Plaintiff testified
that when she changes a patient’s pad, the patient typically pulls themselves up on
the side of the bed so that Plaintiff can roll the patient to the right and remove the
pad. According to Plaintiff, the patient in this instance “wasn’t helping . . . at all.”
When Plaintiff assisted with moving a patient who weighed as much as the patient
in the incident in question, Plaintiff would always be part of a team of at least three
people moving the patient. Plaintiff estimated she moved a patient of that size twice
a month as part of a team of three to four people. Plaintiff also stated she would help
others move patients “once a shift” on any given floor of the hospital and that “one
out of five” patients were overweight.
¶5 Beeker testified as Defendant’s witness. Although Beeker could not recall how
much the patient in this case weighed, she described the patient as “pretty hefty, but
it’s not uncommon for two of us to be turning a patient that is overweight and not
willing to help.” However, Beeker explained when a patient is “extremely obese or
they’re a difficult patient that we’ve already tried once to move . . . we’ll call for extra
help and a lot of times it’s maybe three of us, maybe four at the most.” Beeker also
stated she would have preferred to have three or four people moving the patient she
and Plaintiff moved on the day in question. She had also never witnessed Plaintiff ALDRIDGE V. NOVANT HEALTH, INC.
attempt to move a patient weighing approximately 350 pounds with only one other
person helping in the time Beeker had worked with Plaintiff.
¶6 Victoria Tuttle (Tuttle) testified on Plaintiff’s behalf. Tuttle was employed by
Defendant as a CNA at Rowan Hospital and worked with Plaintiff once or twice a
month at the time. Tuttle testified she had to move patients weighing 350 pounds to
change their pads as part of her duties with Defendant; but, when she did, “[t]hree to
four” people would assist and “[s]ix would be great if they’re noncompliant or they
can’t help themselves.” Tuttle stated she had previously tried to move a patient
weighing 350 pounds with only one other person assisting but could not do it, and she
had to get more help.
¶7 Christopher Cook (Cook) testified on Defendant’s behalf. Cook testified he was
employed as a nurse manager for Defendant at Rowan Hospital on the date in
question. According to Cook, nurses and nursing assistants would change pads on
patients every day and that he noticed a “trend in the population of obesity [in
patients] increasing[.]” Cook testified multiple nurses would work together in teams
to move overweight patients “daily.” However, Cook was not aware of an official
policy or protocol directing nurses or nursing assistants on how many employees
should assist in moving patients based on a patient’s weight and size. Cook also
stated that teams of at least three employees were needed to move patients on a “daily
basis[.]” ALDRIDGE V. NOVANT HEALTH, INC.
¶8 On 16 October 2019, the Deputy Commissioner entered an Opinion and Award
in Plaintiff’s favor. Based on the testimony, exhibits, and depositions filed in the
claim, the Deputy Commissioner made the following pertinent Findings of Fact:
5. In an attempt to change the soiled bed pad, CNA Beeker pulled the patient towards herself, and Plaintiff pushed from the opposite side of the bed, while also pulling on the bed pad with her right arm. The patient did not assist in moving herself. As she was pulling on the bed pad, Plaintiff heard a snap and felt sharp pain and a burning sensation in her right arm. Plaintiff immediately stopped and indicated to CNA Beeker that she had injured herself. . . .
....
7. It was not unusual for Plaintiff to be asked to work a different unit; this occurred approximately two to three times per month. In general, it was not unusual for a CNA to ask Plaintiff for help; this occurred regularly. It was also not unusual for Plaintiff to pull a bed pad out from under a patient; she estimated she performed this specific task twice per month.
9. It was also not uncommon for patients to be unable or unwilling to help when being moved; this could be due to dementia, being sedated, or being post-surgical.
10. Prior to March 7, 2018, Plaintiff had assisted in moving large patients before, but only as a team of three or four people. Plaintiff estimated she assisted in this fashion approximately twice per month.
11. Prior to March 7, 2018, Plaintiff had never tried to pull out a soiled bed pad from underneath such a large patient who did not assist, with only one other employee helping. ALDRIDGE V. NOVANT HEALTH, INC.
12. . . . As a CNA, Tuttle had removed bed pads from soiled patients weighing 350 pounds as part of a team of three or four people. It was not unusual for a team of 3 or 4 people to perform this task as it occurred daily.
13. CNA Tuttle had also attempted to perform the task of removing a bed pad from a 350-pound patient with one other person, without success. CNA Tuttle had never seen Plaintiff attempt to do so.
15. CNA Beeker agreed that with a patient as large as 350 pounds who was unable to assist, you would want a team of three or four people moving the patient, and she would call for extra help.
16. CNA Beeker had also not seen Plaintiff attempt to move a 350 pound patient with the help of just one other person.
17. The undersigned finds that removing the soiled bed pad from underneath an uncooperative patient weighing 350 pounds, with just one other employee’s assistance, was not part of Plaintiff’s normal work routine as a Registered Nurse for Defendant- Employer. Such task was unusually difficult and had not been performed by Plaintiff previously; therefore, it constituted an interruption of Plaintiff[’s] usual work routine.
¶9 Consequently, the Deputy Commissioner concluded:
4. The preponderance of the evidence in this matter demonstrates Plaintiff’s injury occurred while she was assisting a CNA with the task of removing a soiled bed pad from underneath an unusually large patient who was either unable or unwilling to assist in lifting herself; said task was typically performed by a team of 3 or more employees; . . . This unusually difficult task was something Plaintiff had never performed before and was not part of her normal work routine. ALDRIDGE V. NOVANT HEALTH, INC.
5. Accordingly, the undersigned concludes the March 7, 2018, incident constituted an interruption of plaintiff’s regular work routine that was neither designed nor expected by plaintiff and is, therefore, compensable as an injury by accident. N.C. Gen. Stat. § 97-2(6).
Therefore, the Deputy Commissioner entered an award in Plaintiff’s favor.
Defendant filed Notice of Appeal to the Full Commission on 29 October 2019.
¶ 10 On 30 September 2020, “[h]aving reviewed the prior Opinion and Award based
upon the record of proceedings before Deputy Commissioner Brown, . . . and the
parties’ briefs and oral arguments, the Full Commission” entered its Opinion and
Award “pursuant to N.C. Gen. Stat. § 97-85.” The Commission made the following
relevant Findings of Fact:
4. While attempting to change the soiled bed pad, CNA Beeker pulled the patient toward herself, and plaintiff pushed from the opposite side of the bed, while also pulling on the bed pad with her right arm. The patient did not assist in moving herself. As she was pulling on the bed pad, plaintiff heard a snap and felt sharp pain and burning sensation in her right arm. Plaintiff immediately stopped and indicated to CNA Beeker that she had injured herself.
7. It was not unusual for plaintiff to encounter overweight or obese patients while at work. Mr. Cook estimated that on any given day, 50% of the patients were overweight and 25% of the patients were obese, with on average two patients as large as 350 pounds. It was also not uncommon for patients to be unable or unwilling to help when being moved, which could be due to dementia, being sedated, or being post-surgical. ALDRIDGE V. NOVANT HEALTH, INC.
8. Prior to March 7, 2018, plaintiff assisted in moving large patients, but only as a team of three or four people. Plaintiff estimated she assisted in this fashion approximately twice per month. Also prior to March 7, 2018, plaintiff never attempted to remove a soiled bed pad from underneath such a large uncooperative patient, with only one other employee helping.
¶ 11 Consequently, the Commission concluded:
1. “A plaintiff is entitled to compensation for any 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.’ ” N.C. Gen. Stat. § 97-2(6); Gray v. RDU Airport Auth., 203 N.C. App. 521, 525, 692 S.E.2d 170, 174 (2010) (quotng Pitillo v. N.C. Dep’t of Envtl. Health & Natural Res., 151 N.C. App. 641, 645, 566 S.E.2d 807, 811 (2002); N.C. Gen. Stat. § 97- 1(6) (2009)). “The plaintiff bears the burden of proving both elements of the claim.” Id. (quoting Morrison v. Burlington Industries, 304 N.C. 1, 13, 282 S.E.2d 458, 467 (1981)).
2. The elements of an “accident” include the interruption of the routine of work and the introduction thereby of unusual conditions likely to result in unexpected consequences. An “accident within the meaning of the North Carolina Workers’ Compensation Act is “an unlooked for and untoward event which is not expected or designed by the injured employee.” Adams v. Burlington Indus. Inc., 61 N.C. App. 258, 260, 300 S.E.2d 455, 456 (1983).
3. “The terms ‘accident’ and ‘injury’ are separate and distinct concepts, and there must be an ‘accident’ that produces the complained-of ‘injury’ in order for the injury to be compensable.” N.C. Gen. Stat. § 97-2(6); Gray, 203 N.C. App. at 525, 692 S.E.2d at 174; O’Mary v. Clearing Corp., 261 N.C. 508, 510, 135 S.E.2d 193, 194 (1964).
4. In the present case, the preponderance of the evidence in this matter demonstrates plaintiff’s injury occurred while she was assisting a CNA with the task of removing a soiled bed pad from ALDRIDGE V. NOVANT HEALTH, INC.
beneath an unusually large patient who was either unable or unwilling to assist in lifting herself. This task was typically performed by a team of three or more employees. This unusually difficult task was something plaintiff had never performed before and was not part of her normal work routine. Accordingly, the Full Commission concludes the March 7, 2018, incident constituted an interruption of plaintiff’s regular work routine that was neither designed nor expected by plaintiff and is, therefore, compensable as an injury by accident. N.C. Gen. Stat. § 97-2(6); See Calderwood v. Charlotte-Mecklenburg Hosp. Auth., 135 N.C. App. 112, 519 S.E.2d 61 (1999).
Therefore, the Full Commission entered an award in Plaintiff’s favor. Defendant
timely filed written Notice of Appeal from the Full Commission’s Opinion and Award
to this Court on 29 October 2020.
Issue
¶ 12 The issue on appeal is whether the Commission erred in determining Plaintiff
suffered an injury by accident, and thus, was entitled to compensation.
Analysis
¶ 13 Defendant argues the Commission erred in awarding Plaintiff’s claim because
the competent evidence in the Record did not support the Commission’s Finding and
Conclusion the 7 March 2018 incident was an “accident” under the Workers’
Compensation Act. Our standard of review for a Commission’s opinion and award is
limited to whether the Commission’s findings of fact support its conclusions of law.
Where the competent evidence supports the Commission’s findings, those findings
are binding on appeal. Legette v. Scotland Mem’l Hosp., 181 N.C. App. 437, 442, 640 ALDRIDGE V. NOVANT HEALTH, INC.
S.E.2d 744, 748 (2007) (citation omitted). “Thus, on appeal, this Court does not have
the right to weigh the evidence and decide the issue on the basis of its weight. The
court’s duty goes no further than to determine whether the record contains any
evidence tending to support the finding.” Adams v. AVX Corp., 349 N.C. 676, 681,
509 S.E.2d 411, 414 (1998) (citation and quotation marks omitted). We review the
Commission’s conclusions of law de novo. McRae v. Toastmaster Inc., 358 N.C. 488,
496, 597 S.E.2d 695, 701 (2004) (citation omitted).
¶ 14 Although Defendant’s brief asserts the competent evidence did not support the
Commission’s Findings regarding Plaintiff’s injury, Defendant really argues the
Commission’s Findings did not support its Conclusion the 7 March 2018 incident was
an “accident” under the statute and, thus, compensable. Here, the Commission
found: Plaintiff was injured as a result of moving the patient while trying to change
the patient’s soiled bed pad; it was not unusual for Plaintiff to assist in moving
patients, even obese patients weighing 350 pounds; that it was not unusual for some
patients to be unable or unwilling to help as Plaintiff attempted to move them and
change their bed pads; but, that Plaintiff had never before attempted to change a bed
pad on a patient weighing 350 pounds with only one other person, and Plaintiff had
always attempted to move a patient of this size as part of a team of three to four
people. ALDRIDGE V. NOVANT HEALTH, INC.
¶ 15 The competent evidence in this case supports these Findings. Plaintiff testified
she had never before moved a patient of this size with only one other person helping.
Beeker testified the patient involved in this case was a patient she would have
preferred to have a team of three to four to move. Moreover, Beeker testified she had
never seen Plaintiff move a patient of that size with just one other person before.
Similarly, Tuttle testified: she had usually moved a patient of that size as part of a
team of three to four; she had previously tried to move a patient of that size with just
one other person helping but could not; and Tuttle had never witnessed Plaintiff move
a patient of that size with just one person helping. Cook testified that, although he
was not aware of any protocols for moving patients of this size, using teams of three
to four people to do so occurred on a daily basis. Thus, the Record evidence supports
the Commission’s Finding Plaintiff had never moved a patient of this size with just
one other person helping and that she routinely moved a patient of this size as part
of a team of three to four.
¶ 16 The crux of Defendant’s argument is that these Findings do not support the
Commission’s Conclusion Plaintiff’s injury was the result of a compensable accident
under the Workers’ Compensation Act codified in Chapter 97 of our General Statutes.
“ ‘Injury and personal injury’ shall mean only injury by accident arising out of and in
the course of the employment . . . .” N.C. Gen. Stat. § 97-2(6) (2019). “A plaintiff is
entitled to compensation for an injury under the Workers’ Compensation Act only if ALDRIDGE V. NOVANT HEALTH, INC.
(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 & Nat. Res., 151 N.C. App. 641,
645, 566 S.E.2d 807, 811 (2002) (citation and quotation marks omitted). “There must
be an accident followed by an injury by such accident which results in harm to the
employee before it is compensable under our statute.” O’Mary v. Clearing Corp., 261
N.C. 508, 510, 135 S.E.2d 193, 194 (1964) (citation and quotation marks omitted).
¶ 17 An accident is “an unlooked for or untoward event which is not expected or
designed by the person who suffers the injury[;] [t]he elements of an accident are the
interruption of the routine of work and the introduction thereby of unusual conditions
likely to result in unexpected consequences.” Shay v. Rowan Salisbury Sch., 205 N.C.
App. 620, 624, 696 S.E.2d 763, 766 (2010) (citations omitted, brackets in original).
However: “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) (citations omitted).
¶ 18 Here, the Commission concluded:
This unusually difficult task was something plaintiff had never performed before and was not part of her normal work routine. Accordingly, the Full Commission concludes the March 7, 2018, incident constituted an interruption of plaintiff’s regular work routine that was neither designed nor expected by plaintiff and ALDRIDGE V. NOVANT HEALTH, INC.
is, therefore, compensable as an injury by accident. N.C. Gen. Stat. § 97-2(6); See Calderwood v. Charlotte-Mecklenburg Hosp. Auth., 135 N.C. App. 112, 519 S.E.2d 61 (1999).
The Commission’s Findings Plaintiff had never moved a patient weighing 350 pounds
with only one person helping and that such patients were typically moved by a team
of three to four people supports the Commission’s Conclusion the incident in question
constituted an interruption of Plaintiff’s work routine and was not designed or
expected by Plaintiff.
¶ 19 Calderwood v. Charlotte-Mecklenburg Hosp. Auth., the case the Commission
cited in its Opinion and Award, supports Plaintiff’s assertion this incident was an
accident under the Workers’ Compensation Act. 135 N.C. App. 112, 519 S.E.2d 61
(1999). In Calderwood, the plaintiff was a nurse in a labor and delivery unit. Id. at
113, 519 S.E.2d at 62. Plaintiff was injured when she lifted a patient’s leg numerous
times over a thirty-minute period; however, this patient weighed 263 pounds and was
unable to assist in lifting her leg. Id. The plaintiff testified she routinely lifted
patients’ legs during labor and delivery, but that this patient’s leg was unusually
heavy and the plaintiff had never had to lift a patient’s leg without assistance from
the patient. Id. The Commission found that the plaintiff had conducted her job “in
the usual way” and concluded the plaintiff’s injury did not occur by accident. Id. at
114, 519 S.E.2d at 63. ALDRIDGE V. NOVANT HEALTH, INC.
¶ 20 On appeal, this Court concluded there was no evidence to support the
Commission’s finding the plaintiff conducted her employment in the usual way where
the “undisputed evidence” was that she had never lifted a patient’s leg where the
patient was unusually large and unable to assist the plaintiff. Id. at 115-16, 519
S.E.2d at 63. We reasoned: “The question is whether her regular work routine
required lifting the legs of women weighing 263 pounds” and were unable to assist.
Id. at 116, 519 S.E.2d at 63. Although Calderwood addressed whether the evidence
supported the Commission’s finding the plaintiff conducted her work in the usual
way, this Court’s reversal of the Commission implied the incident could have been an
accident under the statute.
¶ 21 Similarly, here, the question before the Commission was whether Plaintiff’s
regular work routine required her to help move a patient weighing 350 pounds, and
who was unable or unwilling to assist, with only the help of one other person. The
Commission’s Findings that Plaintiff had never attempted to move a patient of this
size with only one other person, and that such patients were usually moved by a team
of three to four people supported the Conclusion this incident was unforeseen and
was an interruption not designed or expected by Plaintiff. See Legette, 181 N.C. App.
at 446, 640 S.E.2d at 750-51 (holding plaintiff moving a patient alone was an
interruption to her work routine where the plaintiff had to exert more force than
usual and where the maneuver was typically a two-person task). ALDRIDGE V. NOVANT HEALTH, INC.
¶ 22 Defendant argues this case is similar to Evans v. Wilora Lake
Healthcare/Hilltopper Holding Corp., 180 N.C. App. 337, 637 S.E.2d 194 (2006), and
Landry v. U.S. Airways, Inc., 150 N.C. App. 121, 563 S.E.2d 23, rev’d per curiam, 356
N.C. 419, 571 S.E.2d 586 (2002), where our courts held the plaintiffs’ injuries were
not the result of accidents. In Evans, the plaintiff worked for a healthcare facility
caring for residents within the facility. Evans, 180 N.C. App. at 337, 637 S.E.2d at
194-95. The plaintiff’s duties included: “Feeding, passing trays, . . . grooming,
dressing, undressing, [and ] changing . . . garments[.]” Id. at 338, 637 S.E.2d at 195.
The plaintiff claimed her left wrist was injured as she was helping a resident—with
the assistance of the resident’s family member—remove the resident’s pants. Id. We
held although the plaintiff claimed she “exerted unexpected force to move the pad on
which the resident lay . . . [n]othing in the record indicates plaintiff was performing
unusual or unexpected job duties.” Id. at 341, 637 S.E.2d at 196.
¶ 23 The plaintiff in Landry worked for the airline unloading mail, freight, and
luggage. Landry, 150 N.C. App. at 121-22, 563 S.E.2d at 24. The plaintiff injured
himself as he lifted a mail bag that was heavier than the plaintiff had expected. Id.
at 122, 563 S.E.2d at 24. The mailbags ranged from one pound to 400 pounds. Id.
The Commission concluded the plaintiff’s injury was not the result of an accident. Id.
at 123, 563 S.E.2d at 25. This Court held the Commission’s finding that “[m]ailbags
often . . . were heavier or lighter than anticipated” was unsupported by the evidence ALDRIDGE V. NOVANT HEALTH, INC.
where the plaintiff “merely testified mailbags were often overweight, not that this
fact was unanticipated by him when he lifted them.” Id. at 124, 563 S.E.2d at 26.
Therefore, this Court reversed the Commission’s Opinion and Award. Id. at 124-25,
563 S.E.2d at 26.
¶ 24 However, the dissenting opinion concluded that, although the bags were
sometimes heavier or lighter than expected, “the evidence as a whole clearly supports
the Commission’s findings that plaintiff’s job required him to lift weights up to 400
pounds”; “that plaintiff never knew prior to lifting mailbags how much they weighed”;
and “that it was not unusual for mailbags to be extremely heavy” and for the plaintiff
to be unaware of that fact until he moved them. Id. at 126, 563 S.E.2d at 27.
Consequently, the dissent would have concluded the plaintiff “engaged in his normal
duties and using his normal motions when injured.” Id. The North Carolina Supreme
Court reversed this Court for the reasons stated in the dissent. 356 N.C. 419, 571
S.E.2d 586 (2002).
¶ 25 Here, unlike in Evans, Plaintiff testified she had never moved a patient of this
size without more than one person assisting. The plaintiff in Evans did not claim
that she would have usually had more help—indeed, the resident’s family member
was assisting the plaintiff—only that moving the resident required more force than
she expected. Similarly, the plaintiff in Landry did not claim he would usually lift a
heavy bag with more assistance, only that he did not expect the particular bag in ALDRIDGE V. NOVANT HEALTH, INC.
question to be as heavy as it was. However, there was no evidence in either of these
cases showing the plaintiffs experienced unexpected circumstances outside the
normal course of their employment. In this case, although Plaintiff did have to move
large patients as a part of her normal duties, the Commission’s Findings reflect she
never had to do so in the manner which led to her injury and, unlike in Evans and
Landry, this was outside the usual, normal, and expected job duties. Moreover, the
testimony during the hearing supports those Findings, and it is not this Court’s place
to reweigh the evidence. Adams, 349 N.C. at 681, 509 S.E.2d at 414.
¶ 26 Thus, here, we conclude the Commission’s Findings support its Conclusion
Plaintiff’s injury was the result of an accident. Therefore, in turn, the Commission
did not err in concluding Plaintiff suffered a compensable injury under the Workers’
Compensation Act. Consequently, the Commission did not err in entering its Opinion
and Award in favor of Plaintiff.
Conclusion
¶ 27 Accordingly, for the foregoing reasons, we affirm the Commission’s Opinion
and Award.
AFFIRMED.
Judges DILLON and DIETZ concur.