Lead Opinion

*********** This matter was reviewed by the Full Commission based upon the record of the proceedings before Deputy Commissioner Kim Cramer, along with the briefs and arguments on appeal. The appealing party has not shown good ground to receive further evidence or to amend the prior Opinion and Award. Accordingly, the Full Commission adopts and affirms the Deputy Commissioner's holding and enters the following Opinion and Award.

*********** The Full Commission finds as fact and concludes as matters of law the following, which were entered by the parties at the hearing on 22 September 1999 as:

STIPULATIONS 1. The parties are subject to and bound by the North Carolina Workers' Compensation Act.

2. An employment relationship existed between plaintiff and defendant-employer at all relevant times.

3. The employer was insured for workers' compensation coverage at all relevant times.

4. Plaintiff-employee's average weekly wage may be determined, subject to a Form 22.

5. Plaintiff injured her left shoulder on June 26, 1998, and contends this was as a result of an injury by accident arising out of and in the course of her employment with The Summit, which the Defendants deny.

6. Post-hearing, the parties submitted a set of stipulated medical records, which were received on February 15, 2000.

*********** Based upon the evidence of record, the Full Commission enters the following:

FINDINGS OF FACT 1. On the date of the hearing, Plaintiff was 44 years of age. She finished high school and is trained as a certified nursing assistant (CNA). She has been working as a CNA for about 15 years. In 1998, she was working in private duty nursing, first for The Summit and then for Intermediate Medical Services.

2. As part of her normal duties as a certified nursing assistant, plaintiff regularly changed diapers on adult patients. On any typical day, she may have changed a patient's diaper and also the patient's clothing. As part of this duty, she would regularly lift or move patients.

3. On her third day of employment with The Summit, June 26, 1998, as plaintiff was attempting to change the diaper of a total care patient, plaintiff's left shoulder dislocated. Plaintiff testified at one point that she was attempting to lift the patient when her left shoulder came out of joint. Later, plaintiff testified that she was attempting to slide the patient or straighten out her legs, and the patient moved her legs or shifted. It is not clear from her testimony at which point she contends the injury occurred.

4. The patient, who weighed about 121 pounds, was immobile and contracted. As testified by the other nursing assistants who regularly worked with this patient, she was unable to kick out or voluntarily shift her weight, so she could not have moved her legs as plaintiff implied in her testimony. In order to change her diapers, the nursing assistants would roll her over on one side and then back. There was nothing unusual in the circumstances under which Plaintiff was attempting to change this patient's diaper on this occasion. Plaintiff regularly lifted and moved patients and changed their diapers.

5. Plaintiff testified that she was surprised at the patient's weight, although the patient was not particularly heavy. Plaintiff's subjective assessment of the patient's weight, even if miscalculated, is not an interruption of her normal work routine. Plaintiff would be required to work with new patients from time to time and to make such assessments of a patient's weight.

6. After the incident, Plaintiff sought immediate assistance from another CNA, Cindy Myers, and a nurse, Caren Hutchinson, who both worked with her. She told Ms. Myers and Ms. Hutchinson that her arm had slipped out of joint, that this had happened before, and that she would not need the assistance of a doctor if she could get her arm back into place. Ms. Hutchinson did not want to herself try to put the arm back in place and told Plaintiff to seek medical assistance from their workers' compensation physician.

7. The testimony of the treating physicians, Dr. Doyle and Dr. DePaolo, shows that the dislocation of the Plaintiff's left shoulder could be caused by the duties a CNA may regularly carry out, such as lifting patients. Although lifting the patient may be causally connected to the dislocation, it was the same type of lifting that plaintiff normally did in her work as a certified nursing assistant. There was nothing different on this occasion.

*********** Based upon the foregoing findings of fact, the Full Commission makes the following:

CONCLUSION OF LAW The law in North Carolina has different compensability requirements for different types of injuries. Injuries not to the back, such as plaintiff's in this case, require an interruption of plaintiff's work routine or the introduction of unusual conditions likely to result in an unlooked-for event or unexpected consequences. No such interruption or introduction occurred in this case and plaintiff's case is therefore noncompensable. Poe v. Acme Builders, 69 N.C. App. 147, 316 S.E.2d 338 (1984). Had plaintiff's injury occurred under the exact same circumstances and resulted in an injury to her back rather than her shoulder, this case would be compensable under the existing specific traumatic incident law. However, given the facts of this case and the existing law, plaintiff has failed to prove by the greater weight of the evidence that the injury she sustained on June 26, 1998 was caused by an accident arising out of and in the course of her employment with the Defendant-employer. N.C. Gen. Stat. § 97-2(6).

*********** Based upon the foregoing findings of fact and conclusions of law, the Full Commission affirms the holding of the Deputy Commissioner and enters the following:

ORDER 1. Under the law, plaintiff's claim must be and is hereby Denied.

2. Each side shall pay their own costs, except that defendants shall pay the expert witness fees previously assessed.

S/_____________________________ CHRISTOPHER SCOTT COMMISSIONER

CONCURRING:

S/_____________________________ RENEE C. RIGGSBEE COMMISSIONER

DISSENTING:

S/_____________________________ THOMAS JEFFERSON BOLCH COMMISSIONER

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Concurrence Opinion

I concur in the majority opinion in this case, but write separately to specifically disagree with the dissenting opinion's reference to an appellate standard of review in weighing the evidence in this case.

The Full Commission is not an appellate body. When review is brought from a deputy commissioner's decision to the Full Commission, the Full Commission sits as the ultimate trier of fact rather than as an appellate body. N.C.G.S. § 97-85; Adams v. AVX Corporation, 349 N.C. 676,509 S.E.2d 411 (1998). In contrast to appellate review of a Full Commission decision by the appellate courts, the determinations made by a deputy commissioner are not conclusive on the Full Commission. See Adamsv. AVX Corporation, supra; compare N.C.G.S. § 97-85 (full Commission shall review the award, receive further evidence, rehear the parties)with N.C.G.S. § 97-86 (award of Commission shall be binding as to all questions of fact). Thus, the Full Commission decides claims on the evidence before the Commission based on the greater weight of the credible evidence. See Adams v. AVX Corporation, supra (Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony).

The dissenting opinion inappropriately cites an appellate standard of review when it quotes Adams to say:

"The evidence tending to support plaintiff's claim is to be viewed in the light most favorable to plaintiff, and plaintiff is entitled to the benefit of every reasonable inference to be drawn from the evidence."

This statement is taken out of context from the Adams decision. When this statement is placed in context, it is apparent that the Supreme Court was referring to appellate review, not the ultimate fact-finding of the Full Commission:

"`The findings of fact by the Industrial Commission are conclusive on appeal if supported by any competent evidence.' Gallimore v. Marilyn's Shoes, 292 N.C. 399, 402, 233 S.E.2d 529 at 531 (1977). Thus on appeal, this Court `does not have the right to weigh the evidence and decide the issue on the basis of weight. The court's duty goes no further than to determine whether the record contains any evidence tending to support the finding. Anderson, 265 N.C. at 434, 144 S.E.2d at 274.

"N.C.G.S. § 97-86 provides that an `award of the Commission upon such review, as provided in G.S. § 97-85, shall be conclusive and binding as to all questions of fact.' N.C.G.S. § 97-86 (1991). As we stated in Jones v. Myrtle Desk Co., 264 N.C. 401, 141 S.E.2d 632 (1965), `[t]he findings of fact of the Industrial Commission are conclusive on appeal when supported by competent evidence, even though there be evidence that would support findings to the contrary" Id. at 402, 141 S.E.2d at 633. The evidence tending to support plaintiff's claim is to be viewed in the light most favorable to plaintiff, and plaintiff is entitled to the benefit of every reasonable inference to be drawn from the evidence."

Adams v. AVX Corp., supra, 349 at 681. When placed in proper context, it is apparent that the Supreme Court was stating that on appeal the findings of the Full Commission awarding benefits for the plaintiff-employee are to be viewed in the light most favorable to plaintiff because he was the successful party before the Commission. Under Section 97-86 the findings of the Commission are binding unless there is no competent evidence to support the findings.

Under these circumstances, it is no more reasonable for a Commissioner to cite the "viewed in the light most favorable to plaintiff" language ofAdams, than it would be for another Commissioner to hold that the evidence is to be viewed in the light favorable to defendant as found inBosley v. Alexander, 114 N.C. App. 470, 442 S.E.2d 82 (1994) ("viewed in light most favorable to defendant" used to determine jury question),Guilford County v. Kane, 114 N.C. App. 243, 441 S.E.2d 556 (1994) (denial of directed verdict judged under "viewed in light most favorable to defendant" standard) and numerous other decisions. This is an appellate standard of review applicable to legal sufficiency issues such as an appeal to the appellate courts from a directed verdict, summary judgment, jury issue submission, and other proceedings. This standard is not applicable to the trier of fact. The image of fairness, represented by the slogan that "justice is blind," requires that the Commission review the case with fairness to all parties rather than merely review a claim through rose colored glasses that favors one party over another.

Moreover, the suggestion that the Commission is to weigh evidence in favor of one party has frequently been rejected by our appellate courts in workers' compensation cases. In Rooks v. Ideal Cement Co.,9 N.C. App. 57, 175 S.E.2d 324 (1970), the Court of Appeals rejected this position when it stated:

"Appellant also argues that where the medical opinions of two physicians conflict as to the condition of the claimant in a workers' compensation claim the conflict should always be resolved in favor of the claimant rather than against him. Appellant's argument completely overlooks the necessity for someone to pass upon the credibility of witnesses. The Industrial Commission has the duty and authority to resolve conflicts in testimony whether medical or not. If the findings made by the Commission are supported by competent evidence they must be accepted as final truth."

Thus, the Court of Appeals in Rooks affirmed a Full Commission decision in favor of the defendant despite contrary evidence in the record favoring plaintiff's claim.

Similarly, the Courts of Appeals in Cauble v. The Macke Co.,78 N.C. App. 793, 338 S.E.2d 320 (1986) and Wagoner v. Douglas BatteryManufacturing Co., 80 N.C. App. 163, 341 S.E.2d 120 (1986) reversed decisions of the Full Commission because the Commission improperly applied a "viewed in the light most favorable to plaintiff" standard. InCauble, the Court of Appeals explained:

"The plenary powers of the Commission are such that upon review, it may adopt, modify or reject the findings of fact of the Hearing Commissioner, and in doing so may weigh the evidence and make its own determination as to the weight and credibility of the evidence. [citation omitted] The Industrial Commission has the duty and authority to resolve conflicts in the testimony whether medical or not, and the conflict should not always be resolved in favor of the claimant."

Wagoner, supra (emphasis added). In Wagoner, the Court of Appeals explained the error of the Industrial Commission in applying an appellate standard rather than completing its obligation to weigh the evidence:

"Here, as in Cauble, the Commission did not weigh the evidence. The . . . language from the Opinion and Award indicates that the Commission `apparently acted under the mistaken impression that the law required a finding for the plaintiff if there was any competent evidence [, viewed in the light most favorable to plaintiff,] to support such a finding.' [citation omitted] The authority cited by the Commission, Buck v. Procter Gamble Co., 52 N.C. App. 88, 278 S.E.2d 268 (1981), applies to review of evidence by appellate courts upon appeal from the Industrial Commission. Appellate courts must follow the "any competent evidence" standard in deciding whether the evidence permits a determination by the Industrial Commission, which is the fact-finder. Buck, supra. The fact-finder, however, is not required to so view the evidence. Rather, its duty is to weigh the evidence, resolve conflicts therein, and make its own determination as to weight and credibility."

Wagoner, supra. The application of the "viewed in the light most favorable to plaintiff" standard by the Full Commission is reversible error. See Wagoner, supra; Cauble, supra; Rook, supra.

There may be some "appeal" in the simplicity of reviewing the record to determine whether plaintiff has presented some evidence to support his case, and, if so, then finding in favor of the plaintiff. That, however, is not our job as Commissioners. The Full Commission is the trier of fact, and our review does not end with determining whether plaintiff has presented a prima facie case. Rather, we must determine the competency of the evidence and then weigh and consider all competent evidence in rendering the decision on the merits. As a fair and impartial tribunal for the administration of claims, we cannot give preference to certain evidence solely because it was offered by one party or another.

In the instant case, the majority has applied the correct standard of review as expressed in G.S. § 97-85, and the findings are made on the greater weight of the credible evidence.

S/_____________________________ RENEE C. RIGGSBEE COMMISSIONER

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Dissenting Opinion

"The evidence tending to support plaintiff's claim is to be viewed in the light most favorable to plaintiff, and plaintiff is entitled to the benefit of every reasonable inference to be drawn from the evidence."Doggett v. South Atl. Warehouse Co., 212 N.C. 599, 194 S.E. 111 (1937), cited with approval in Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998).

Plaintiff, Helen Hill, is a 44 year old lady who has worked as a Certified Nursing Assistant for over 15 years. On June 26, 1998, Plaintiff injured her left shoulder while lifting a patient, Minnie Lawrence, to change her wet diaper. Plaintiff was told by co-worker CNAs that Ms. Lawrence would be changed after lunch since she needed 2 people to change her. Both co-workers went out for a cigarette break and were going to meet Plaintiff for lunch following their smoke. Plaintiff decided to change Ms. Lawrence by herself since she knew the patient was wet from not being changed all morning and she did not participate in the smoking break. Plaintiff testified that:

While Plaintiff noted that the bed Ms. Lawrence was lying in was "low", she still felt the diaper change was manageable by one (1) CNA. Plaintiff testified that:

her weight was surprising because I didn't know she was as contracted as she was. And I went to lift her up, and somehow — I don't know — she shifted or how it happened. Somehow when I lift her up — and my arm just — I lift her, and she was really heavy and contracted. And I just — it — my arm came out because of her surprising weight, I guess . . . I mean it dislocated. It just pulled it because she was heavy and so much contracted, and it was my first time doing her, and she didn't look as heavy as she was when I tried to change her.

Plaintiff had never lifted Ms. Lawrence before and was not familiar with her health and physical condition before June 26, 1998. Plaintiff screamed when her left shoulder dislocated from Ms. Lawrence's unexpected weight. Cindy Myers, one of the CNAs on cigarette break, came to Ms. Lawrence's room and finished the diaper change. Ms. Myers testified that Plaintiff asked her for help in getting her arm back in joint immediately after the accident. Plaintiff told Ms. Myers that she would have to go to the emergency room if she waited too long to treat her dislocated shoulder. While Ms. Myers had successfully changed Ms. Lawrence in the past without incident, she did agree that each patient is handled in a different manner that is predictable the more each individual patient is dealt with.

A June 26, 1998 accident report filed by Plaintiff's supervisor, Caren Hutchinson, put the exact time of the injury at 11:15AM. Janie Canton, LPN and current quality care coordinator with Defendant-Employer, confirmed that the employer policy required two (2) nurses to lift a patient in Ms. Lawrence's state of health.

The facts "viewed in the light most favorable to plaintiff" as required by Doggett v. South Atl. Warehouse Co., 212 N.C. 599, 194 S.E. 111 (1937), cited with approval in Adams v. AVX Corp., 349 N.C. 676,509 S.E.2d 411 (1998), show an unusual occurrence that produced unexpected results and the resulting injury is by definition an injury by accident growing out of the course and scope of employment.

Plaintiff is entitled to workers compensation benefits under our law.

This 26th day of March 2002.

S/_____________________________ THOMAS J. BOLCH COMMISSIONER