Veneris v. Domtar Paper Co., LLC ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-649
NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
JAMES MICHAEL VENERIS,
Employee-Plaintiff,
v. From the North Carolina
Industrial Commission
I.C. File No. 770306
DOMTAR PAPER COMPANY, LLC, F/K/A
WEYERHAEUSER COMPANY,
Self-Insured Employer,
and
SPECIALITY RISK SERVICES,
Third Party Administrator,
Defendants.
Appeal by plaintiff from opinion and award entered 22 March
2013 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 6 November 2013.
Wallace and Graham, P.A., by Edward L. Pauley, for
plaintiff-appellant.
Teague Campbell Dennis & Gorham LLP, by Tracey L. Jones and
Leslie P. Lasher, for defendants-appellees.
HUNTER, JR., Robert N., Judge.
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James Michael Veneris (“Plaintiff”) appeals from an opinion
and award of the North Carolina Industrial Commission denying
his claim for a ten percent compensation increase pursuant to
N.C. Gen. Stat. § 97-12 (2011). Plaintiff contends that he is
entitled to the compensation increase because his injury was
caused by the willful failure of his employer, Domtar Paper
Company, LLC (“Defendant”), to comply with 29 C.F.R. § 1910.133(2013). For the following reasons, we disagree and affirm the
Industrial Commission’s opinion and award.
I. Factual & Procedural History
On 22 May 2007, Plaintiff filed a claim for benefits with
the Industrial Commission seeking compensation for an eye injury
Plaintiff sustained while working at Defendant’s paper plant.
Defendant denied liability and the matter came on for a hearing
on 13 July 2011. The evidence presented at the hearing tended
to show the following.
Plaintiff began working for Defendant on 16 May 1977 at
Defendant’s paper plant in Plymouth, North Carolina.
Plaintiff’s first position with the company was as an “extra
board,” a job where Plaintiff was asked to “fill-in” for jobs as
needed by Defendant. Plaintiff’s work as an extra board
required him to spend his days working in maintenance with
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millwrights, welders, and pipefitters. Plaintiff held the extra
board position for approximately two and a half years.
Thereafter, Plaintiff moved into various roles including working
as boiler room utility person and in Defendant’s electrical
generation plant.
In November 1982, Plaintiff became a utility mechanic, a
position he held until January 2011. As a utility mechanic,
Plaintiff was tasked with repairing and maintaining equipment at
the plant. In this role, Plaintiff was required to assist
welders at least three days a week for periods of time as short
as twenty minutes and as long as the entire work day. Plaintiff
was required to hold material while the welders worked, which
placed Plaintiff in close proximity to the welding arc. As a
result, Plaintiff was often exposed to welding light.
Plaintiff testified at the hearing that Defendant provided
welders with welding shields and mandated their use while
actively welding. Plaintiff was provided with clear safety
glasses to wear while assisting the welders inside and UV
sunglasses to wear when working outside. Plaintiff was often
instructed by the welder to avert or close his eyes during the
welding. Plaintiff testified that his eyes had been burned from
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the welding arc on at least one occasion during his tenure at
the paper plant.
On the morning of 25 December 2005, Plaintiff began
noticing an impairment to his central vision. After several
medical evaluations, a neuro-opthamologist concluded that
Plaintiff was probably suffering from welder’s arc retinopathy,
a condition caused by exposure to intense welding light.
Although Plaintiff continued to work for Defendant after this
diagnosis, his vision began to affect his performance.
Calvin Outlaw (“Mr. Outlaw”), Defendant’s Safety and
Security Manager, testified that employees were supplied with
standard safety glasses, tinted sunglasses for outdoor use, and
welding shields for welding. Mr. Outlaw testified that
Defendant was aware of its obligation to provide appropriate eye
protection to its employees and believed it had met that
obligation. Mr. Outlaw admitted that Plaintiff did not have
welding eye protection and admitted that Plaintiff was exposed
to welding light. Nevertheless, Mr. Outlaw testified that
Defendant would have provided the necessary eye protection to
Plaintiff if Defendant had identified or recognized the need
ahead of time.
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After hearing the foregoing evidence, the Deputy
Commissioner entered an opinion and award on 10 September 2012
concluding that Plaintiff’s eye injury was compensable under the
Workers’ Compensation Act. The opinion and award also concluded
that Plaintiff’s compensation should be increased by ten percent
pursuant to N.C. Gen. Stat. § 97-12 due to Defendant’s willful
failure to provide appropriate eye protection as required by 29
C.F.R. § 1910.133. Both parties appealed to the Full
Commission.
On 22 March 2013, the Full Commission entered an opinion
and award upholding the compensability of Plaintiff’s injury,
but denied Plaintiff’s claim for a ten percent increase in
compensation under N.C. Gen. Stat. § 97-12. Plaintiff filed
timely notice of appeal to this Court on 2 April 2013.
II. Jurisdiction & Standard of Review
Plaintiff’s appeal from the Industrial Commission’s opinion
and award lies of right to this Court pursuant to N.C. Gen.
Stat. § 7A-29(a) (2011). Accord N.C. Gen. Stat. § 97-86 (2011).
Our review of an opinion and award of the Industrial
Commission “is limited to consideration of whether competent
evidence supports the Commission’s findings of fact and whether
the findings support the Commission’s conclusions of law. This
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‘court’s duty goes no further than to determine whether the
record contains any evidence tending to support the finding.’”
Richardson v. Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660,
669 S.E.2d 582, 584 (2008) (citation omitted) (quoting Anderson
v. Lincoln Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274
(1965)). “The Commission is the sole judge of the credibility
of the witnesses and the weight to be given their testimony.”
Anderson, 265 N.C. at 433–34, 144 S.E.2d at 274.
However, “[c]onclusions of law by the Industrial Commission
are reviewable de novo by this Court.” Bond v. Foster Masonry,
Inc., 139 N.C. App. 123, 127, 532 S.E.2d 583, 585 (2000).
“Under a de novo review, the court considers the matter anew and
freely substitutes its own judgment for that of the lower
tribunal.” Craig v. New Hanover Cnty. Bd. of Educ., 363 N.C.
334, 337, 678 S.E.2d 351, 354 (2009) (quotation marks and
citation omitted).
III. Analysis
The only question presented to this Court by Plaintiff’s
appeal is whether the Full Commission erred in denying
Plaintiff’s claim for a ten percent compensation increase
pursuant to N.C. Gen. Stat. § 97-12. Plaintiff contends that he
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is entitled to the compensation increase because Defendant
willfully violated 29 C.F.R. § 1910.133. We disagree.
Pursuant to N.C. Gen. Stat. § 97-12, “[w]hen the injury or
death [of the employee in a workers’ compensation case] is
caused by the willful failure of the employer to comply with any
statutory requirement or any lawful order of the Commission,
compensation shall be increased by ten percent (10%).” As used
in this statute, “willful” is defined as “a deliberate purpose
not to discharge some duty necessary to the safety of the person
or property of another, a duty assumed by contract or imposed by
law.” Brown v. Kroger Co., 169 N.C. App. 312, 318, 610 S.E.2d
447, 451 (2005) (quotation marks and citations omitted).
Furthermore, the federal occupational safety and health
standards promulgated by the Occupational Safety and Health
Administration (“OSHA”) are “statutory requirements” within the
scope of N.C. Gen. Stat. § 97-12. Id. at 317–18, 610 S.E.2d at
451; see also N.C. Gen. Stat. § 95-131(a) (2011) (“All
occupational safety and health standards promulgated under the
federal act . . . shall be adopted as the rules of the
Commissioner of this State unless the Commissioner decides to
adopt an alternative State rule . . . .”); N.C. Gen. Stat. § 95-
129(2) (2011) (“Each employer shall comply with occupational
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safety and health standards or regulations promulgated pursuant
to this Article[.]”). Relevant to Plaintiff’s claim, 29 C.F.R.
§ 1910.133(a)(1) places an affirmative duty on employers to
“ensure that each affected employee uses appropriate eye or face
protection when exposed to eye or face hazards from flying
particles, molten metal, liquid chemicals, acids or caustic
liquids, chemical gases or vapors, or potentially injurious
light radiation.”
Here, the Full Commission entered the following findings of
fact:
12. Calvin Outlaw, Defendant’s Safety and
Security Manager since 2001, agreed with
Plaintiff’s testimony that Plaintiff worked
around welders quite often; that Plaintiff
was exposed to welding light; that he did
not have eye protection for that welding
light; that utility mechanics were given
sunglasses and safety goggles but not
welding protection; that goggles and
sunglasses do not protect against welding
light; and that Plaintiff was not protected
from welding light but he should have been.
He had worked for Defendant for thirty-four
years.
13. Mr. Outlaw also testified that United
States Department of Labor Occupational
Safety & Health Administration (OSHA)
regulation 29 CFR § 1910.133 requires the
employer to ensure that each affected
employee use appropriate eye or face
protection when exposed to eye or face
hazards from flying particles, molten metal,
liquid chemicals, acids or caustic liquids,
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chemical gases or vapors, or potentially
injurious eye radiation. Mr. Outlaw
testified that based upon this OSHA
regulation, Defendant provided employees
with protective eye gear such as safety
glasses, prescription eyewear with shields
on them, and welding shields for welders.
Mr. Outlaw believed that Defendant provided
Plaintiff and other employees the
appropriate protective gear. There is
insufficient evidence to show that Mr.
Outlaw was aware of the hazards of welding
light for utility mechanics prior to the
hearing before the Deputy Commissioner.
Based on these findings of fact, the Full Commission entered the
following conclusion of law:
10. There is insufficient evidence to
establish that Defendant willfully failed to
comply with any specific OSHA regulation to
award an increase of ten percent of
Plaintiff’s ongoing temporary total
disability compensation. Defendant provided
Plaintiff with clear safety glasses and UV
tinted goggles towards the last five to ten
years of his work in the plant. There is
insufficient evidence to find that Defendant
was aware that the safety eye protection
provided to Plaintiff would not provide
protection against welders’ maculopathy,
which is a rare condition.
In challenging the opinion and award of the Full Commission,
Plaintiff contends that Finding of Fact 13 is not supported by
competent evidence and that Conclusion of Law 10 is not
supported by the findings of fact. We address each in turn.
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First, Plaintiff takes issue with two components of Finding
of Fact 13: (1) that “Mr. Outlaw believed that Defendant
provided Plaintiff and other employees the appropriate
protective gear;” and (2) that “[t]here is insufficient evidence
to show that Mr. Outlaw was aware of the hazards of welding
light for utility mechanics prior to the hearing before the
Deputy Commissioner.” We hold that competent evidence exists in
the record to support both of these statements. Specifically,
Mr. Outlaw testified as follows:
[Questioner:] Okay. Mr. Outlaw, are you
aware of any safety or OSHA
regulations or statutory
requirements that Weyerhauser
or Domtar is not following
with regards to the
protection from welding
exposure?
[Mr. Outlaw:] No.
[Questioner:] So it’s your testimony that
Weyerhauser/Domtar is
following all the regulations
required under OSHA?
[Mr. Outlaw:] Yes.
. . . .
[Questioner:] Mr. Veneris was not protected
from hazardous light, is that
correct?
[Mr. Outlaw:] I would not go as far as to
say he wasn’t protected. We
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will supply any type of
equipment that was needed.
If there was a need and they
had identified it to us or we
had recognized that it was a
hazard, he would have been
protected. But from what he
was saying that he was only
wearing clear eyewear and
never brought it up to any
type of leadership that there
was a hazard or caused any
problems, no—from what he’s
saying, no, he wasn’t
protected. But was there
equipment available for him
to—did we make equipment
available? If he was
exposed, we did.
. . . .
[Questioner:] Mr. Outlaw, other than Mr.
Veneris claiming he has an
occupational disease related
to this peripheral exposure
to welding arcs there hasn’t
been any other claims to your
knowledge, correct? . . .
[Mr. Outlaw:] That is correct.
. . . .
[Questioner:] [W]ould there have been any
reason for Domtar or
Weyerhauser to think that
utility mechanics were in any
way put in harms way doing
their job?
Mr. Outlaw: No, no.
Accordingly, because Mr. Outlaw’s testimony indicated (1) that
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Defendant believed it had been providing OSHA compliant
protective gear to its employees, and (2) that Defendant was
unaware of the hazard faced by utility mechanics, the Full
Commission had evidence tending to support Finding of Fact 13.
See Pittman v. Int’l Paper Co., 132 N.C. App. 151, 156, 510
S.E.2d 705, 709, aff’d per curiam, 351 N.C. 42, 519 S.E.2d 524(1999) (“The facts found by the Commission are conclusive upon
appeal to this Court when they are supported by competent
evidence, even when there is evidence to support contrary
findings.”).
Second, Plaintiff contends that Conclusion of Law 10 is not
supported by the findings of fact. Specifically, Plaintiff
directs our attention to a number of the Full Commissions
findings of fact tending to show that Defendant knew about the
hazards of welding light, knew that Plaintiff worked in close
proximity to welding light, knew that plaintiff would be
affected by the welding light, and knew about the OSHA
regulation, yet provided safety glasses to Plaintiff that were
not rated for welding. Plaintiff contends that these findings
contradict Finding of Fact 13 and demonstrate Defendant’s
willful violation of 29 C.F.R. § 1910.133.
However, it does not follow from these facts that it was
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Defendant’s deliberate purpose to avoid its obligation to
provide Plaintiff with appropriate eye protection. Indeed,
Defendant could have believed, even mistakenly, that utility
mechanics exposed to welding light did not require the same
level of eye protection that Defendant afforded to welders.
Finding of Fact 13 supports this inference, stating that “Mr.
Outlaw believed that Defendant provided Plaintiff and other
employees the appropriate protective gear.” Accordingly,
because there is insufficient evidence to establish that it was
Defendant’s deliberate purpose to avoid its obligation under 29
C.F.R. § 1910.133, we hold that Conclusion of Law 10 is
supported by the Full Commission’s findings of fact.
IV. Conclusion
For the foregoing reasons, we affirm the opinion and award
of the Industrial Commission denying Plaintiff’s claim for a ten
percent increase in compensation pursuant to N.C. Gen. Stat. §
97-12.
Affirmed.
Judges HUNTER, Robert C., and CALABRIA concur.
Report per rule 30(e).