226 S.E.2d 227 | N.C. Ct. App. | 1976
Thomas Alton PULLEY, Employee-Plaintiff,
v.
MIGRANT & SEASONAL FARM-WORKERS ASSOCIATION, Employer-Defendant, and the Home Indemnity Company, Carrier-Defendant.
Court of Appeals of North Carolina.
*228 Thomas S. Erwin, Raleigh, for employee-plaintiff.
Hedrick, Parham, Helms, Kellam & Feerick by Edward L. Eatman, Jr., Charlotte, for carrier-defendants.
CLARK, Judge.
The added finding of fact by the Full Commission that "As the plaintiff was picking up his side of the refrigerator, it slipped and he got a catch in his back. . ." is not supported by the evidence. Plaintiff testified:
"Q. Well, when you felt this catch, did you let go of your side?
A. The refrigerator slipped down, yes, sir."
Linwood Sexton testified, as summarized in the record on appeal, that he was on one side and plaintiff on the other side of the refrigerator with one leg on the floor and one foot on the porch, and the refrigerator dropped and all the weight went on him (Sexton).
Clearly, the testimony of the plaintiff establishes that he first had "a catch in his back" and then the refrigerator slid to the porch. Sexton's testimony does not conflict *229 with that of the plaintiff. We, therefore, cannot accept this finding of fact, and we must now determine if the other findings of fact by the Industrial Commission which were supported by competent evidence do or do not sustain the legal conclusion and the award of the Industrial Commission. Byers v. Highway Comm., 275 N.C. 229, 166 S.E.2d 649 (1969).
The term "accident" as used in the Workmen's Compensation Act has been defined as (1) an unlooked for and untoward event which is not expected or designed by the injured employee; (2) a result produced by a fortuitous cause. O'Mary v. Clearing Corp., 261 N.C. 508, 135 S.E.2d 193 (1964).
To obtain an award of compensation in hernia and 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. Lawrence v. Mill, 265 N.C. 329, 144 S.E.2d 3 (1965); Byrd v. Cooperative, 260 N.C. 215, 132 S.E.2d 348 (1963); Harding v. Thomas & Howard Co., 256 N.C. 427, 124 S.E.2d 109 (1962); Dunton v. Construction Co., 19 N.C.App. 51, 198 S.E.2d 8 (1973); Russell v. Yarns, Inc., 18 N.C.App. 249, 196 S.E.2d 571 (1973).
Awards of compensation in hernia and ruptured or slipped disc cases have been upheld where the employee was injured while lifting objects when in an unusually twisted, cramped or awkward position. Keller v. Wiring Co., 259 N.C. 222, 130 S.E.2d 342 (1963); Searcy v. Branson, 253 N.C. 64, 116 S.E.2d 175 (1960); Edwards v. Publishing Co., 227 N.C. 184, 41 S.E.2d 592 (1947).
The finding by the Full Commission that the refrigerator first slipped and then plaintiff had a catch in his back, which we must reject as unsupported by the evidence, was undoubtedly considered significant, if not controlling, by the Commission in overruling the Hearing Commissioner and concluding that plaintiff sustained an injury by accident. Without this finding the facts found do not establish that plaintiff at the time of injury was performing any unusual task or that he was in a twisted, cramped or awkward position. He was performing his usual work of moving a refrigerator, of average or usual weight, from a truck into a house.
We find that the facts found by the Full Commission which are supported by competent evidence do not sustain the conclusion that plaintiff sustained an injury by accident. The award of the Industrial Commission is
Reversed and Remanded.
VAUGHN and MARTIN, JJ., concur.
