Moose v. Hexcel-Schwebel

592 S.E.2d 615, 163 N.C. App. 177, 2004 N.C. App. LEXIS 309
CourtCourt of Appeals of North Carolina
DecidedMarch 2, 2004
DocketNo. COA03-542.
StatusPublished
Cited by3 cases

This text of 592 S.E.2d 615 (Moose v. Hexcel-Schwebel) 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
Moose v. Hexcel-Schwebel, 592 S.E.2d 615, 163 N.C. App. 177, 2004 N.C. App. LEXIS 309 (N.C. Ct. App. 2004).

Opinion

WYNN, Judge.

Plaintiff, Patricia A. Moose, and Defendants, Hexcel-Schwebel and AIG Claim Services, appeal from the opinion and award of the North Carolina Industrial Commission awarding temporary total disability and permanent partial disability compensation to Ms. Moose. Defendants contend that the Commission erred by concluding Ms. Moose sustained a compensable injury by accident arising out of and in the course of her employment. Plaintiff, in her appeal, asks this Court to consider whether the Commission erred in failing to award (I) total disability compensation at the rate of $415.54 per week from 15 August 2000 and continuing until further orders of the Commission; (II) an attorney fee of 25% on the lump sum recovery from 15 August 2000; (III) payment of medical bills that are approved by the Commission and vocational rehabilitation services as may be necessary to allow Plaintiff to obtain suitable work in accordance with her restrictions; and (IV) an election of remedies to her post-injury wage than her pre-injury wage. After careful review, we affirm the opinion and award.

The pertinent facts indicate that Ms. Moose had been employed by Hexcel-Schwebel as a smash-hand technician for five years at the time of her injury. Hexcel-Schwebel produced lightweight woven fiberglass for circuit boards and electronics. As a smash-hand technician, Ms. Moose was required to make sure the ends on a warp were pulled through if the ends were broken. If she did not have any work to do, Ms. Moose was required to relieve weavers as they were taking their breaks. Ms. Moose did not have to weave on a day-to-day basis and the lifting of bobbins was not a part of her job as a smash-hand technician.

On the weekend Ms. Moose was injured, her supervisor asked her to operate a loom because the scheduled employee was on vacation. Thus, Ms. Moose operated the machine *617for three twelve hour shifts. On Sunday, Ms. Moose lifted a large bobbin that weighed between 20 and 22 pounds off of the floor with both hands. When she bent down to lift the bobbin, she felt her left arm pull and pain radiated through her left arm, neck and shoulder. Ms. Moose testified that she immediately told her supervisor about the pain and worked the remainder of the shift at her supervisor's request. Her supervisor testified that lifting the heavy bobbins was not a part of Ms. Moose's normal job.

After the pain did not subside, Ms. Moose sought treatment with Dr. Daniel Bellingham the following Tuesday. Ms. Moose was subsequently referred to Dr. William O. Bell, a neurologist, to determine whether Ms. Moose had a stroke. After the MRI ruled out a stroke, the doctor diagnosed Ms. Moose with ulnar neuropathy at the elbow, which is essentially a pinched nerve at the elbow. On 31 October 2000, she underwent left ulnar nerve decompression surgery, and afterwards, she had several months of physical therapy. On 27 March 2001, Dr. Bell assigned a 10% permanent disability rating to the left elbow, determined that she could not return to her previous employment, recommended sedentary, low physical demand type employment, restricted Ms. Moose from lifting anything over 20 pounds and recommended limited use of her left arm. Dr. Bell opined Ms. Moose's injury was work-related.

After Hexcel-Schwebel's denial of Ms. Moose's workers' compensation claim, the Commission awarded Ms. Moose temporary total disability compensation, 24 weeks of permanent partial disability compensation, attorney's fees, and reimbursement or payment of her medical bills. Plaintiff and Defendant appeal.

"When considering an appeal from the Commission, its findings are binding if there is any competent evidence to support them, regardless of whether there is evidence which would support a contrary finding. Therefore, our Court is limited to two questions: (1) whether competent evidence exists to support the Commission's findings, and (2) whether those findings justify its conclusions of law." Shaw v. Smith & Jennings, Inc., 130 N.C.App. 442, 445, 503 S.E.2d 113, 116 (1998).

I. Defendant's Appeal

In its sole issue on appeal, Hexcel-Schwebel contends the Commission erred in finding and concluding Ms. Moose sustained a compensable injury by accident arising out of and in the course of her employment. Hexcel-Schwebel argues that the lifting of the heavy bobbins had become a part of Ms. Moose's normal work routine and therefore an injury caused by the lifting of the bobbin could not constitute a compensable injury under our workers' compensation act. We disagree.

"Under the North Carolina Workers' Compensation Act, an injury arising out of and in the course of employment is compensable only if caused by an `accident' and the claimant bears the burden of proving an accident has occurred." N.C. Gen.Stat. Section 97-2(6)(2001); Calderwood v. Charlotte-Mecklenburg Hosp. Auth., 135 N.C.App. 112, 115, 519 S.E.2d 61, 63 (1999). "An accident is an unlooked for and untoward event which is not expected or designed by the person who suffers the injury." Id. "The 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." Adams v. Burlington Industries, Inc., 61 N.C.App. 258, 260, 300 S.E.2d 455, 456 (1983). "If the employee is performing his regular duties in the usual and customary manner and is injured, there is no accident and the injury is not compensable." Porter v. Shelby Knit, Inc., 46 N.C.App. 22, 26, 264 S.E.2d 360, 363 (1980).

In this case, the Commission found:

4. On August 13, 2000, Arlene Smith was plaintiff's supervisor. As a weaver was on vacation, Ms. Smith asked plaintiff to leave her smash technician job and do the weaving. The weaving job required plaintiff to lift heavy yarn bobbins, weighing approximately twenty pounds. Plaintiff occasionally had to help with weaving, but the lifting was not a regular part of her primary job as a smash end technician.

Indeed, the record shows that Arlene Smith testified that she was Ms. Moose's supervisor;

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592 S.E.2d 615, 163 N.C. App. 177, 2004 N.C. App. LEXIS 309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moose-v-hexcel-schwebel-ncctapp-2004.