Dillingham v. Yeargin Construction Co.

348 S.E.2d 143, 82 N.C. App. 684, 1986 N.C. App. LEXIS 2625
CourtCourt of Appeals of North Carolina
DecidedSeptember 16, 1986
DocketNo. 8610IC287
StatusPublished
Cited by2 cases

This text of 348 S.E.2d 143 (Dillingham v. Yeargin Construction Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dillingham v. Yeargin Construction Co., 348 S.E.2d 143, 82 N.C. App. 684, 1986 N.C. App. LEXIS 2625 (N.C. Ct. App. 1986).

Opinion

EAGLES, Judge.

The plaintiff assigns as error the finding of the Industrial Commission that his heart attack was not an injury by accident arising out of and in the course of his employment. Since it is undisputed that the heart attack arose out of and in the course of plaintiffs employment, our inquiry is limited to deciding whether the Commission erred in finding that it was not caused by an accident. In reviewing the Commission’s findings, we are limited in that we may consider only (1) whether there is competent evidence to support the Commission’s findings and (2) whether those findings justify the Commission’s legal conclusions. Barham v. Food World, 300 N.C. 329, 266 S.E. 2d 676, reh. denied, 300 N.C. 562, 270 S.E. 2d 105 (1980).

In order for an injury to be compensable under G.S. 97.2(6), it must result from an accident to be compensable. The term “acci[687]*687dent” has been variously defined, but, in essence, it requires that the injury be the result of some unusual or unexpected event or condition. See Gabriel v. Newton, 227 N.C. 314, 42 S.E. 2d 96 (1947). Where the injury is caused by a heart attack, the plaintiff must show that it was precipitated by some “unusual or extraordinary exertion.” Lewter v. Enterprises, Inc., 240 N.C. 399, 404, 82 S.E. 2d 410, 415 (1954).

In addition, it is well established that where the injury occurs while the plaintiff is carrying on his usual and customary duties in his usual way, the injury does not arise by accident. Jackson v. North Carolina State Hwy. Comm’n, 272 N.C. 697, 158 S.E. 2d 865 (1968); Sanderson v. Northeast Const. Co., 77 N.C. App. 117, 334 S.E. 2d 392 (1985). This is true even where the exertion is the obvious cause of the injury. See Slade v. Hosiery Mills, 209 N.C. 823, 184 S.E. 844 (1936); Neely v. Statesville, 212 N.C. 365, 193 S.E. 664 (1937); Jackson, supra. In order for plaintiff appellant to prevail here, he must demonstrate that the evidence required the Commission to find that the heat and other conditions plaintiff was subject to were such that it could not be said that he was carrying on his usual work in his usual way when the heart attack occurred.

In its “Findings of Fact,” the Commission found, in part, that:

7. . . . Plaintiffs injury did not however occur as the result of any interruption of his normal work routine. Plaintiff was not exposed to extreme heat nor did his injury result from extreme exertion. The temperature in the work area was cooler than the surrounding outside air and the area was ventilated with conditioned air.
8. Plaintiff was not at an increased risk of developing heat exhaustion or cardiac arrest as a result of his work in the HPIC area, than the general public not so employed.

Plaintiff argues that these findings are erroneous. Specifically, the plaintiff contends that the conditions to which he was exposed on 20 June 1984 were sufficiently unusual and unexpected to constitute an accident. Based on our examination of the record, we hold that there was competent evidence to support the Commission’s findings of fact and that the Commission’s findings support its legal conclusion that the plaintiff did not suffer an injury by accident.

[688]*688The evidence shows that the plaintiff was attending to his usual and customary duties when his heart attack occurred. The plaintiff was an instrumentation fitter, hired to work at the Brunswick nuclear power plant. Accordingly, he was sometimes required to work in areas where there was a risk of exposure to radiation. By his own estimate, plaintiff had done this type of work approximately 10 times in the two months he had been employed at the plant. Each time, it was necessary for him to dress in the special protective clothing. Although plaintiff makes much of the fact that he spent about 75% of his working time outside of the plant, the amount of time spent pursuing a particular task does not answer the crucial question of whether a task was, nevertheless, part of his usual work. Here, all of the evidence indicates that working in the HPIC room was an integral part of plaintiffs usual work responsibilities.

There is also competent evidence to support the Commission’s findings that the temperature was not unusually hot and that the plaintiff was not exposed to a greater risk from the heat than the general public. The plaintiff testified that the HPIC room was “at least” 20 degrees hotter than the outside temperature, which he estimated at over 90 degrees. He also testified, however, that he would rather get an answer on what the temperature was inside the HPIC room from someone else. In addition, the plaintiff had earlier testified that there was no way he could guess at the inside temperature and that “[i]t was just hot, that’s all I can say.” He also testified that the HPIC room was the hottest area of the plant.

Plaintiff also attempted to demonstrate that he was subject to an unusual amount of heat by testifying that he was sweating profusely inside the radiation suit. No evidence was presented, however, to show how much hotter it was inside the suit, to what degree this additional temperature could have increased his risk of cardiac arrest, or whether that temperature might be considered unusual. Moreover, the plaintiff testified that he sweated each time he had worn the suit and that the sweating had begun in the dressing area and before he had even begun working in the HPIC room.

The Commission also heard evidence on the temperature of the HPIC room from Robert Harrelson, who was the only other [689]*689person in the room at the time. Mr. Harrelson testified that the HPIC room was hot but not abnormally hot. He also testified that the HPIC room was no warmer than other parts of the plant and that it had an air conditioning vent. When asked to compare the outside temperature with the inside temperature he said that they were “maybe the same” but that he did not know. The only other evidence of the temperature in the HPIC room came from Dr. Credle. Dr. Credle stated in his deposition that part of the history he received concerning the plaintiff’s injury was a statement by the plant’s safety officer that the temperature in the HPIC room was “in excess of 86 degrees.”

The evidence of the temperature of the outside air, the HPIC room, and inside the radiation suit is scant and inconclusive. Because findings of the Commission are conclusive on appeal if supported by competent evidence, even when the evidence supports a contrary finding, Morrison v. Burlington Industries, 304 N.C. 1, 282 S.E. 2d 458 (1981), we may not reverse the Commission’s findings that the temperature in the HPIC room was cooler than the outside temperature, that the plaintiff was not exposed to extreme heat, and that the plaintiff was not at a greater risk of cardiac arrest than the general public.

We note that the Commission’s findings of fact contain a finding that the plaintiff did not suffer from “extreme” heat or “extreme” exertion. Since, however, a plaintiff needs to show that the exertion or strain was only unusual, not extreme, this finding would, by itself, be insufficient for us to determine the rights of the parties. Consequently, we would have to remand this case for further findings of fact. Perry v. Hibriten Furniture Co., 296 N.C. 88, 249 S.E. 2d 397 (1978).

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Bluebook (online)
348 S.E.2d 143, 82 N.C. App. 684, 1986 N.C. App. LEXIS 2625, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dillingham-v-yeargin-construction-co-ncctapp-1986.