Lutes v. Export Leaf Tobacco Co.

198 S.E.2d 746 (1973) 19 N.C. App. 380

Karl Allen LUTES, Employee,
v.
EXPORT LEAF TOBACCO CO., Employer,
Liberty Mutual Insurance Co., Carrier.

No. 7321IC585.

Court of Appeals of North Carolina.

September 12, 1973.

Billings & Graham, by William T. Graham, Winston-Salem, for plaintiff appellant.

Deal, Hutchins & Minor, by Richard Tyndall, and Walter W. Pitt, Jr., Winston-Salem, for defendant appellees.

HEDRICK, Judge.

G.S. § 97-2(18), pars. a-e provides that in all claims for compensation for hernia resulting from injury by accident, the claimant must prove to the satisfaction of the Commission:

a. That there was an injury resulting in a hernia;

b. That the hernia appeared suddenly;

c. That it was accompanied by pain;

d. That the hernia immediately followed an accident;

e. That the hernia did not exist prior to the accident for which compensation is claimed.

Failure to prove the existence of any one of the five elements of G.S. § 97-2(18), pars. a-e nullifies plaintiff's claim. Hensley v. Cooperative, 246 N.C. 274, 98 S.E.2d 289 (1957); Faires v. McDevitt and Street Co., 251 N.C. 194, 110 S.E.2d 898 (1959).

Plaintiff argues that since the Commission concluded that there was an accident within the meaning of the statute and that since there was evidence the hernia appeared "suddenly" shortly thereafter, it was error for the Commission to find and conclude that the plaintiff did not suffer an injury by accident resulting in a hernia. This argument, and plaintiff's claim, must fail simply because the Commission found and concluded that there was no causal connection between the "accident" and the hernia. The findings of the Commission when supported by any competent evidence are binding on appeal. Godwin v. Swift and Co., 270 N.C. 690, 155 S.E.2d 157 (1967); Enroughty v. Industries, Inc., 13 N.C.App. 400, 185 S.E.2d 597 (1971), cert. denied, 280 N.C. 721, 186 S.E.2d 923 (1972). In the present case the material findings and conclusions of the Commission are supported by plenary competent evidence.

The order appealed from is

Affirmed.

CAMPBELL and VAUGHN, JJ., concur.