Swindell v. DAVIS BOAT WORKS INC.

337 S.E.2d 592, 78 N.C. App. 393, 1985 N.C. App. LEXIS 4290

• Court: Court of Appeals of North Carolina
• Decided: December 17, 1985
• Docket: 8510IC252
• Status: Published

Opinion

JOHNSON, Judge.

We note that on appeal plaintiff has proceeded in forma pauperis. Plaintiff has failed to present any Assignments of Error within the Record. Rule 10(a), N.C. App. P. Neither the Exceptions, nor their respective Assignments of Error, which plaintiff relies on are set forth at the conclusion of the Record on Appeal. Rule 10(c), N.C. App. P. In order to prevent any manifest injustice to this plaintiff we will, nonetheless, review the merits of his appeal. Rule 2, N.C. Rules App. P.

The issue raised by plaintiffs appeal is whether, consistent with North Carolina law, the opinion and award filed by the Full Commission is supported by competent evidence. We hold that the Record on Appeal supports the opinion and award by the Full Commission.

Findings of Fact by the Industrial Commission when supported by competent evidence are conclusive on appeal. Byers v. North Carolina State Highway Commission, 3 N.C. App. 139, 164 S.E. 2d 535 (1968), aff'd, 275 N.C. 229, 166 S.E. 2d 649 (1969). The Full Commission concluded as a matter of law that plaintiffs injury was not an accident and, therefore, he was not entitled to benefits under the Workers’ Compensation Act. G.S. 97-2(6); Russell v. Pharr Yarns, Inc., 18 N.C. App. 249, 196 S.E. 2d 571 (1973).

The statutory definition for a compensable injury under the Workers’ Compensation Act is set forth in G.S. 97-2(6).

Injury. — ‘Injury and personal injury’ shall mean only injury by accident arising out of and in the course of the employment, and shall not include a disease in any form except where it results naturally and unavoidably from the accident.

This Court has held that the statutory definition of the word injury is not synonymous with accident. See Russell v. Yarns, supra. There must be some new circumstance not a part of the usual work routine in order to find that an accident has occurred. Id.

In the case sub judice, the Industrial Commission found as fact that there were no unusual circumstances at the time plaintiff injured himself. In response to a direct question on this point, plaintiff testified that there was nothing different from any other time he was in the break area.

Q. Is there anything — any reason you feel that side-stepping this foreman was different from any other time you were in the break area and other people were at the machine? I mean, what was so different about this occasion that caused you to hurt yourself?

A. I’m not saying there is anything different from it. The only thing I can say is that I believe the accident was caused by the side-stepping, then final side-step and pivot. . . .

Plaintiff proceeded to assert that the cramped conditions he was working in may have led to the accident. However, there was no medical testimony to corroborate this assertion by plaintiff. Prior to 10 September 1982, the date of the injury plaintiff complains of, plaintiff felt a popping in his knee.

Q. Before you talk about this occasion you need to give a date and time?

A. I can’t give it a date and time because I have no recollection as to what day, because at that time it was not of importance to me. I passed it off as being no more significant as the popping of a finger joint.

Q. Could you give it a month and year?

A. No, ma’am; I couldn’t.

Q. Before or after September 10, 1982.

A. Before.

Plaintiff further testified that he had experienced this popping in his knee at least a dozen times during a two week period prior to 10 September 1982.

Q. How many times have you felt the popping? Prior to September 10, 1982, how many times have you felt the popping in your knee?

A. I would say at least a dozen — a dozen and a half times.

Plaintiff had previously noticed a looseness in his knee while crawling in cramped working conditions. Seventy-five (75) percent of the time plaintiff worked in these cramped conditions and had done so since the date of his employment. Plaintiff testified that there was nothing different about the snack area on the day he injured himself. “No matter how great the injury, if it is caused by an event that involves both an employee’s normal work routine and normal working conditions it will not be considered to have been caused by an accident.” Searsey v. Perry M. Alexander Construction Co., 35 N.C. App. 78, 80, 239 S.E. 2d 847, 849, disc. rev. denied, 294 N.C. 736, 244 S.E. 2d 154 (1978).

The Full Commission and the Deputy Commissioner found as a fact that plaintiff had a prior injury of his knee in an automobile accident. Plaintiffs testimony supported this finding. Plaintiff testified that after the accident a “sac of fluid the size of a golfball” formed on his left knee. We conclude that the Full Commission’s Findings of Fact are supported by competent evidence and the Findings of Fact support the Full Commission’s Conclusion of Law, that plaintiffs injury was not caused by an accident within the meaning of the Workers’ Compensation Act.

Affirmed.

Judges Webb and Phillips concur.