Key v. Wagner Woodcraft, Inc. , 33 N.C. App. 310 ( 1977 )

235 S.E.2d 254 (1977) 33 N.C. App. 310

John Henry KEY, Employee,
v.
WAGNER WOODCRAFT, INC., Employer, and
Iowa National Mutual Insurance Company, Carrier.

No. 7618IC884.

Court of Appeals of North Carolina.

June 1, 1977.

Gardner & Tate by Raymond A. Bretzmann, High Point, for plaintiff-appellee.

Henson & Donahue by Perry C. Henson and Richard L. Vanore, Greensboro, for defendants-appellants.

BRITT, Judge.

First, defendants contend that the commission erred in determining that plaintiff was reasonably excused from giving written notice to his employer within thirty days after the alleged accident and that the employer had not been prejudiced thereby. We find no merit in this contention.

G.S. 97-22 provides in part that no compensation shall be payable to an employee unless written notice is given within thirty days after the occurrence of the accident, "unless reasonable excuse is made to the satisfaction of the Industrial Commission for not giving such notice and the Commission is satisfied that the employer has not been prejudiced thereby." The commission determined that plaintiff was reasonably excused from not giving written notice since the "employer had knowledge of the injury by accident on April 30, 1975 per notification by plaintiff to his supervisor at the shop and the plant superintendent at the hospital . . .." The commission also determined that the employer had not been prejudiced by the lack of written notice.

We think there is competent evidence to support the commission's determination. The statute requires that reasonable excuse must be made to the satisfaction of the commission and that it must be satisfied that the employer has not been prejudiced thereby. Obviously, the commission was satisfied by plaintiff's evidence and we agree. Evidence presented at the hearing indicates that on the date of the injury, 30 April 1975, the plant manager heard of the alleged injury by accident about ten minutes after it occurred. During plaintiff's hospitalization in May, 1975, the plant manager, Mr. Simpson, visited plaintiff who related the details of the occurrence to him. After the alleged accident plaintiff returned on the next work day, 5 May 1975, and told his foreman, Pete Rush, that he had been having pain since moving the lumber the preceding Wednesday and that he was being put in the hospital. Plaintiff also went to the office and told the owner, Mr. Wagner, that he was being sent to the hospital. The evidence shows that plaintiff was hospitalized, put in traction and operated upon before returning to work four months later. Since the evidence is sufficient to support the commission's findings that reasonable excuse for not giving the required written notice was shown, and that the employer was not prejudiced by the failure to give written notice, the findings are conclusive on appeal. G.S. 97-86; Blalock v. Roberts Co., 12 N.C.App. 499, 183 S.E.2d 827 (1971).

Defendants next contend that the commission erred in finding that the plaintiff sustained an injury by accident arising out of and in the course and scope of his employment. We find no merit in this contention.

To be compensable under our Workmen's Compensation Act, G.S. 97-1, et seq., an injury must result from an accident which is to be considered as a separate event preceding and causing the injury, and the mere fact of injury does not of itself establish the fact of accident. Jackson v. Highway Commission, 272 N.C. 697, 158 S.E.2d 865 (1968); Bigelow v. Tire Sales Co., 12 N.C.App. 220, 182 S.E.2d 856 (1971).

"To sustain an award of compensation in ruptured or slipped disc cases the injury to be classed as arising by accident must involve more than merely carrying on the usual and customary duties in the usual way. . . . Accident involves the interruption of the work routine and the introduction thereby of unusual conditions likely to result in unexpected consequences.. . ." Harding v. Thomas & Howard Co., 256 N.C. 427, 429, 124 S.E.2d 109, 111 (1962).

In Biglow v. Tire Sales Co., supra, this court affirmed the commission's determination that a 48-year-old employee, who had worked with his employer for 20 years and sustained a ruptured disc while he was attempting to put a 900-pound tire on a tractor hub, sustained an injury by accident within the meaning of the Workmen's Compensation Act where the position of the tractor on a hillside prevented the employee from following his customary work routine in installing the tire.

In McMahan v. Supermarket, 24 N.C.App. 113, 210 S.E.2d 214 (1974), the plaintiff had been employed as a stock clerk and bag boy for some three months prior to the alleged accident. On the date in question, he had been stocking shelves in the stockroom when he was asked to deliver a case of dog food to a customer's car. When he reached down to pick up the case of dog food, he felt a stinging pain in his left groin which later was diagnosed as a hernia or rupture. The commission found that plaintiff's duties were to stock the stockroom, load, unload and bag, and that the handling of the case of dog food constituted an interruption of his usual work routine resulting in an injury by accident. This court affirmed the determination of the commission.

In Keller v. Wiring Co., 259 N.C. 222, 130 S.E.2d 342 (1963), the claimant suffered a ruptured disc when he picked up and removed a rock from a ditch he was digging. The removal of the rock necessitated a twisting movement which increased the stress on the vertebrae. The Supreme Court approved a finding of the commission that claimant had sustained an injury by accident.

In Davis v. Summitt, 259 N.C. 57, 129 S.E.2d 588 (1963), claimant suffered an injury when he attempted to elevate and hold a cabinet, weighing approximately 175 pounds, in place while another employee fastened it to the wall. The task of elevating and holding the cabinet in place was usually assigned to two men, but in this instance claimant was performing it by himself. This evidence was held sufficient to support the commission's finding that claimant suffered a compensable injury by accident arising out of and in the course of his employment.

In Edwards v. Publishing Co., 227 N.C. 184, 41 S.E.2d 592 (1947), plaintiff was required to lift a plate weighing between 40 and 50 pounds from the floor and twisting to his right, hand it to a pressman. When he did so, he felt a severe pain in the lower part of his back which was subsequently diagnosed as a ruptured disc. The court held that, "[t]he evidence of the sudden and unexpected displacement of the plaintiff's intervertebral disc under the strain of lifting and turning as described lends support to the conclusion that the injury complained of should be regarded as falling within the category of accident, rather than as the result of inherent weakness, or as being one of the ordinary and expected incidents of the employment." For similar results, see also Searcy v. Branson, 253 N.C. 64, 116 S.E.2d 175 (1960); Dunton v. Construction Co., 19 N.C.App. 51, 198 S.E.2d 8 (1973); Moore v. Sales Co., 214 N.C. 424, 199 S.E. 605 (1938).

In the present case plaintiff had worked as a machine operator for most of his eleven years on the job. While he could operate all of the machines his usual job involved operating the variety saw. He handled finished lumber almost exclusively, in trimming out the furniture and finishing it up. Although he seldom handled heavy pieces of unfinished lumber, on the date in question he was requested to help a fellow employee straighten some scrap pieces of lumber. The fellow employee was attempting to raise a large piece of lumber so some scraps could be moved from underneath it. When plaintiff took hold of one end of the heavy mahogany board he felt a stinging sensation in his neck as though a bee had stung him. The pain continued and his injury was subsequently diagnosed as a ruptured disc.

The commission concluded that plaintiff sustained an injury by accident arising out of and in the course of his employment. We think the evidence is sufficient to support the conclusion that it was an injury by accident in that the evidence shows that plaintiff was not carrying out his usual and customary duties, and that the circumstances involved an "interruption of the work routine and the introduction thereby of unusual conditions likely to result in unexpected consequences." Harding v. Thomas & Howard Co., supra.

The award of the Industrial Commission is, therefore,

Affirmed.

PARKER and MARTIN, JJ., concur.