Edwards v. . Publishing Co. ( 1947 )

SEAWELL, J., concurring in result. This was a proceeding under the Workmen's Compensation Act for compensation for an injury sustained by the plaintiff while in the employ of defendant Publishing Company. The Industrial Commission found, under the evidence offered, that the plaintiff had sustained an injury by accident arising out of and in the course of his employment by the defendant, and awarded compensation under the Act. On appeal to the Superior Court the defendants' exceptions were overruled and the findings and conclusions of the Industrial Commission were affirmed.

Defendants appealed to this Court, assigning error in the ruling of the trial judge. The defendants challenge the correctness of the ruling below on the ground that there was no competent evidence to sustain the finding that the injury complained of was "by accident" within the meaning of the Workmen's Compensation Act. G.S., 97-2 (f). They do not controvert the fact that the injury, if properly determined to have been by accident, arose out of and in the course of plaintiff's employment by defendant Publishing Company.

The pertinent facts as found by the hearing commissioner and affirmed by the full commission, were as follows: "The commissioner finds that on February 3, 1945, the claimant in this case was employed as a learner and on said date and in the course of his regular employment, he was required to lift a plate from the floor and hand it to the pressman; and in doing so, the claimant handed the plate to the pressman to his right and at the time his body was in a twist from the position in which he was standing; and at that time he felt an excruciating pain in his low back and hip and turned very white and pale and had to lie down. He was seen in a day or two by Dr. Vernon Lassiter, who strapped his back and treated him for strained muscle. The claimant worked with difficulty for several days up until about the 17th of February. He was seen by Dr. R. A. Moore on March 7th, and Dr. Moore diagnosed his condition as a ruptured intervertebral disc and operated on him on the 14th of March. The claimant was disabled as a result of said injury and operation until the 10th of June, upon which date his disability following the operation was terminated."

These findings seem to be in accord with the evidence offered. Plaintiff testified that in the course of his employment and in the performance of his work he picked up a plate off the floor, the plate weighing between 40 and 50 pounds, and made one step with his left foot and had to turn and hand the plate to the pressman over to his right, "kind of twisting"; that he twisted around and handed it to the boy and felt a severe pain in the lower part of his back and hip. "I never had a pain like that before." He said he did not slip but "twisted." Dr. Moore testified the plaintiff described his injury as having been sustained while he was lifting a plate, and that he felt something give way in his back. He gave his opinion that the lifting of the plate in the manner described was sufficient to have produced the injury he found, and that in his opinion it was thus caused.

The defendants call attention to admission by the plaintiff that on two different occasions, several years before, when he arose from a sitting position he had a catch in his back, "above the beltline." They also point to evidence tending to show that plaintiff had been doing similar work for three months, and that on the occasion of his injury he picked up the plate and "handed it over to the right in the normal, usual way." Defendants contend this evidence indicates a pre-existing injury, or physical weakness, and negatives the idea of unusual conditions or unexpected consequences, and hence that the finding that the injury resulted from an accident was unsupported. G.S., 97-52.

However, in view of the finding by the statutory fact-finding body, the plaintiff is entitled to have the evidence considered in the light most favorable for the establishment of his claim, for, if there by any competent evidence to support the findings of the Industrial Commission, these findings must be held conclusive of the facts and of the permissible inferences to be drawn therefrom. Southern v. Cotton Mills Co.,200 N.C. 165, 156 S.E. 861; Carlton v. Bernhardt-Seagle Co., 210 N.C. 655,188 S.E. 77; Barbour v. State Hospital, 213 N.C. 515, 196 S.E. 812;Dickey v. Cotton Mills (S.C.), 39 S.E.2d 501.

An accident, as the word is used in the Workmen's Compensation Act, has been defined as "an unlooked for and untoward event which is not expected or designed by the injured employee." Love v. Lumberton, 215 N.C. 28,1 S.E.2d 121; Smith v. Creamery Co., 217 N.C. 468, 8 S.E.2d 231. "A result produced by a fortuitous cause." Slade v. Hosiery Mills,209 N.C. 823, 184 S.E. 844. "An unexpected or unforeseen event." Webster. "An unexpected, unusual or undesigned occurrence." Black.

The question here presented is whether, taking into consideration all the circumstances connected with plaintiff's claim, the rupture of his intervertebral disc occurred on 3 February, 1945, and, if so, whether it was the result of such an unlooked for and untoward event, produced by lifting the plate and handing it to another in a "twisted" position as described by the plaintiff, as to come within the definition of an injury by accident, and hence to furnish the basis for an award of compensation under the remedial provisions of the Act. The Industrial Commission has so found and the Superior Court has affirmed.

This ruling must be upheld. The 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. Smith v. CreameryCo., 217 N.C. 468, 8 S.E.2d 231; MacRae v. Unemployment Comp. Com.,217 N.C. 769, 9 S.E.2d 595; Moore v. Sales Co., 214 N.C. 424,199 S.E. 605; Com. Casualty Ins. Co. v. Hoage, 75 F.2d 677; Dixon v.Norfolk Ship Dry Dock Corp. (Va.), 28 S.E.2d 617; Giguere v. WhitingCo. (Vt.), 98 A.L.R., 196. See also Rewis v. Ins. Co., 226 N.C. 325,38 S.E.2d 97.

We find nothing in Neely v. Statesville, 212 N.C. 365, 193 S.E. 664;Slade v. Hosiery Mills, 209 N.C. 823, 184 S.E. 844, or Buchanan v.Highway Com., 217 N.C. 173, 7 S.E.2d 382, to militate against the conclusion reached on the facts here presented.

Judgment affirmed.