Hewett v. CONSTRUCTOR'S SUPPLY CO., INC. , 29 N.C. App. 395 ( 1976 )

224 S.E.2d 297 (1976) 29 N.C. App. 395

Robert Lee HEWETT
v.
CONSTRUCTOR'S SUPPLY COMPANY, INC., Employer and American Mutual Liability Insurance Company, Carrier.

No. 7510IC865.

Court of Appeals of North Carolina.

May 5, 1976. Certiorari Denied July 14, 1976.

Clayton, Myrick, McCain & Oettinger by Grover C. McCain, Jr., Durham, for plaintiff-appellant.

Teague, Johnson, Patterson, Dilthey & Clay by I. Edward Johnson, Raleigh, for defendants-appellees.

Certiorari Denied by Supreme Court July 14, 1976.

VAUGHN, Judge.

The hearing before the hearing officer was conducted on 14 January 1975, and that opinion and award was filed 21 January 1975. The record discloses that thereafter claimant retained his present counsel and, on 19 June 1975, moved that the matter be remanded for the taking of additional evidence. This motion was supported by an affidavit of the claimant. The thrust of this affidavit is that claimant says he first noticed pain after he dropped 10 feet from the top of the bin to the floor and fell when his right foot slipped on a wet spot on the floor. There was no reference to such an episode at the hearing in January, 1975. At that hearing in January, on cross-examination, defendant admitted executing a statement on 26 August 1974. That statement was admitted into evidence. In that statement, defendant did not mention a "fall" and the statement was generally consistent with his testimony at the hearing. A little over a month after claimant filed this motion and affidavit, the Commission, on 24 July 1975, entered its opinion and award affirming the award of the hearing officer. Apparently no action was taken on the motion. Neither the motion nor the affidavit are the subject of an exception and neither are mentioned elsewhere in the record or briefs.

On appeal, claimant contends that the Commission's conclusion that claimant's injury was not the result of an accident is inconsistent with the findings of fact. We concur with the implicit conclusion of the Commission that, on the evidence in this case, there was no accident when this painter moved from a squatting position to a standing position. The order is affirmed.

Affirmed.

BROCK, C. J., and CLARK, J., concur.