IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-938
Filed: 19 April 2016
From the North Carolina Industrial Commission, I.C. No. 13-706519
JOSEPH W. BARNETTE, Employee, Plaintiff,
v.
LOWE’S HOME CENTERS, INC., Employer, SELF-INSURED (SEDGWICK
CLAIMS MANAGEMENT SERVICES, INC., Administrator), Defendant.
Appeal by Plaintiff from opinion and award entered 15 April 2015 by the North
Carolina Industrial Commission. Heard in the Court of Appeals 28 January 2016.
Wallace and Graham, PA., by Whitney V. Wallace, for Plaintiff.
Cranfill Sumner & Hartzog LLP, by Jaye E. Bingham-Hinch, for Defendant.
STEPHENS, Judge.
In this appeal by an injured employee from an opinion and award of the North
Carolina Industrial Commission denying compensation, we apply our well
established standard of review and hold that, while certain of the findings of fact
challenged by the employee are supported by competent evidence, the Commission’s
legal conclusion that the employee failed to show that his injury “resulted from a
fortuitous event, an interruption of his work routine, or an unusual task” and, thus,
failed to establish that he sustained an injury by accident is not supported by the
findings of fact. Accordingly, we reverse and remand.
BARNETTE V. LOWE’S HOME CTRS, INC.
Opinion of the Court
Factual and Procedural Background
Plaintiff Joseph W. Barnette began working as a delivery driver for Defendant
Lowe’s Home Centers, Inc. (“Lowe’s”) in 2004. At the time he began his employment
with Lowe’s, Barnette had pre-existing back problems that had required medical
treatment from about 2000 or 2001 forward. On 8 August 2012, Barnette was
working with another Lowe’s employee, Ron Alcorn, to deliver a refrigerator to a
home on Bald Head Island. Like many homes on the island, this home had a so-called
“reverse” floor plan with the kitchen on an upper floor. Barnette testified that the
delivery was difficult, requiring him and Alcorn to carry a large refrigerator up a
narrow twisting flight of stairs. At the top of the stairs, Barnette and Alcorn
discovered that the refrigerator would not fit through the final turn of the stairwell
and, thus, they had to take the refrigerator immediately back down the stairs.
Barnette alleged that, near the bottom of the stairs, he lost all feeling in his right
hand and forearm. Barnette shifted the weight of the refrigerator to his other hand
and continued carrying the appliance down the stairs. The evidence was conflicting
about whether Barnette mentioned his arm and hand symptoms to Alcorn at that
moment. Feeling returned to Barnette’s hand in about 20 to 30 minutes. Alcorn
drove Barnette back to the local Lowe’s. Barnette testified that he reported to the
manager on duty that he had hurt his hand, but could not remember whether he
mentioned “all the details . . . .”
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Opinion of the Court
On 15 January 2013, Barnette filed a Form 18 asserting that he had “injured
his right arm/elbow/hand when performing [an] unusually difficult delivery of a
refrigerator up and down a narrow set of stairs” on 8 August 2012. On 19 March
2013, Lowe’s filed a Form 61 Denial of Workers’ Compensation Claim and Amended
Denials of Workers’ Compensation Claim on 20 June and 7 November 2013. Barnette
filed a Form 33 Request that Claim be Assigned for Hearing on 5 April 2013 and an
amended Form 18 on 5 November 2013. On 7 January 2014, a hearing was held
before the deputy commissioner, who filed an opinion and award on 4 August 2014
denying Barnette benefits for failure to show he sustained an injury by accident.
Barnette appealed to the Full Commission (“the Commission”), and, on 15 April 2015,
the Commission affirmed the deputy commissioner’s opinion and award with
modifications, still denying Barnette compensation. From the Commission’s opinion
and award, Barnette appeals.
Discussion
Barnette argues that the Commission erred in (1) making findings of fact 4, 6,
and 7, and (2) finding and concluding that Barnette’s injuries were not the result of
an accident. We reverse and remand.
I. Standard of Review
On appeal, we review an opinion and award in a workers’ compensation case
to determine “whether there is any competent evidence in the record to support the
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Opinion of the Court
Commission’s findings and whether those findings support the Commission’s
conclusions of law.” Oliver v. Lane Co., 143 N.C. App. 167, 170, 544 S.E.2d 606, 608
(2001) (citation omitted). Thus, our “duty goes no further than to determine whether
the record contains any evidence tending to support the finding.” Adams v. AVX
Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (citation and internal quotation
marks omitted), rehr’g denied, 350 N.C. 108, 532 S.E.2d 522 (1999). “[T]he
Commission is the sole judge of the credibility of witnesses and may believe all or a
part or none of any witness’s testimony . . . .” Harrell v. J.P. Stevens & Co., Inc., 45
N.C. App. 197, 205, 262 S.E.2d 830, 835 (citation omitted), disc. review denied, 300
N.C. 196, 269 S.E.2d 623 (1980). The Commission’s findings of fact are conclusive on
appeal if supported by competent evidence, even if there is evidence to support
contrary findings. Pittman v. Int’l Paper Co., 132 N.C. App. 151, 156, 510 S.E.2d 705,
709 (citation omitted), affirmed per curiam, 351 N.C. 42, 519 S.E.2d 524 (1999). “The
Commission’s findings of fact may be set aside on appeal only when there is a complete
lack of competent evidence to support them.” Jones v. Candler Mobile Village, 118
N.C. App. 719, 721, 457 S.E.2d 315, 317 (1995) (citation omitted; emphasis added).
Findings of fact unchallenged by the appellant are presumed to be supported by
competent evidence on appeal. Cooper v. BHT Enters., 195 N.C. App. 363, 364-65,
672 S.E.2d 748, 751 (2009) (citation omitted). Where conclusions of law are not
supported by the findings, we must reverse those portions of the opinion and award,
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Opinion of the Court
remanding to the Commission for entry of conclusions of law that are supported. See,
e.g., Goodrich v. R.L. Dresser, Inc., 161 N.C. App. 394, 403, 588 S.E.2d 511, 517 (2003).
II. Findings of fact 4, 6, & 7
Barnette first argues that no competent evidence supports the Commission’s
findings of fact 4, 6, and 7. We are not persuaded.
Specifically, Barnette challenges the following portions of these findings of fact
as not supported by competent evidence:
4. [Barnette] could not recall whether he immediately
reported his injury to Mr. Alcorn. . . .
....
6. Mr. Alcorn recalled . . . no specific injury, pain, or
symptoms reported by [Barnette] at that time. Mr. Alcorn
testified that this was not the first time he witnessed
[Barnette’s] weakness, which he attributed to [Barnette’s]
age.
7. Defendant’s Assistant Manager, Krystal Webb, . . .
did not recall [Barnette] reporting how the numbness
started . . . .
On appeal, Barnette cites various portions of the testimony before the Commission
that appear to contradict the findings of fact made by the Commission or which would
support different findings of fact. However,
it is [not] the role of this Court to comb through the
testimony and view it in the light most favorable to the
[appellant], when the Supreme Court has clearly
instructed us to do the opposite. Although by doing so, it is
possible to find a few excerpts that might be speculative,
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Opinion of the Court
this Court’s role is not to engage in such a weighing of the
evidence.
Alexander v. Wal-Mart Stores, Inc., 166 N.C. App. 563, 573, 603 S.E.2d 552, 558
(2004) (Hudson, J., dissenting), reversed per curiam for the reasons stated in the
dissenting opinion, 359 N.C. 403, 610 S.E.2d 374 (2005). Having engaged in our
proper review, we conclude that each of the factual findings challenged by Barnette
is supported by competent evidence in the record
For example, in contending that no competent evidence supports the above-
quoted portion of finding of fact 4, Barnette draws our attention to his testimony that
he told Alcorn that he needed to see a doctor when his hand went numb as the two
men carried the refrigerator to the bottom of the stairs. However, our review of the
record reveals that, on direct examination, Barnette also testified that, when he
suddenly lost all feeling in his right hand and forearm, “it scare[d] me a little bit. It
scare[d] me a lot. And so I—I can’t recall whether I tell [Alcorn] something’s going
on at that juncture or not.” Likewise, on cross-examination, Barnette reiterated that,
“while I was lifting [the refrigerator] and as I sat it down, . . . I had to let go. I had
nothing left. And I cannot remember whether I communicated that with [Alcorn] or
not, at the time.” This testimony supports the Commission’s factual finding that
Barnette “could not recall whether he immediately reported his injury to Mr.
Alcorn. . . .”
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Opinion of the Court
Similarly, the part of finding of fact 6 stating that Alcorn “recalled . . . no
specific injury, pain, or symptoms reported by [Barnette] at that time” is supported
by Alcorn’s response when asked whether he immediately realized Barnette was
having symptoms as a result of his alleged injury. Alcorn testified that he knew
Barnette was “having trouble holding that weight and taking it down one step at a
time. So, he had said he’s having difficulty doing it,” but did not describe any
symptoms until he and Alcorn “got back on the barge [to return to the mainland from
Bald Head Island].” In addition, when asked whether Barnette had ever exhibited
any physical difficulty in performing his job, Alcorn replied, “Just a weakness at
times. I mean, it’s—it’s a hard job. . . . He’s an old man. I’m sorry.” That evidence
supports the finding that “Mr. Alcorn testified that this was not the first time he
witnessed [Barnette’s] weakness, which he attributed to [Barnette’s] age.”
Finding of fact 7, that “Krystal Webb, . . . did not recall [Barnette] reporting
how the numbness started[,]” is supported by Webb’s response to the question, “Did
[Barnette] report to you how the pain started or the numbness started?”:
I don’t recall. It was on the job, per se, I assumed that it
could have been a job related injury. But that was not
discussed between us. It was just the fact that he needed
to go to this appointment the next day. So, I—I don’t really
recall it being on the job injury. That—that wasn’t
discussed.
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BARNETTE V. LOWE’S HOME CTRS, INC.
Opinion of the Court
We thus overrule Barnette’s challenge to findings of fact 4, 6, and 7. We address his
challenge to a portion of denominated finding of fact 25, along with the Commission’s
closely related conclusion of law 4, in section III of this opinion.
III. Denominated finding of fact 25 and conclusion of law 4
Barnette argues that a portion of denominated finding of fact 25—that he
“failed to show that his right arm condition resulted from a fortuitous event, an
interruption of his work routine, or an unusual task. . . . [r]ather, [than while he was]
performing his usual, strenuous job in its usual way”—and related conclusion of law
4—that, as a result, Barnette “failed to prove that his injury resulted from an
‘accident’ ”—are not supported by the Commission’s other findings of fact. We agree.
As an initial matter, we note that the part of denominated finding of fact 25 to
which Barnette objects is actually a legal, rather than a factual, determination.
“[A]ny determination requiring the exercise of judgment or the application of legal
principles is more properly classified a conclusion of law. Any determination reached
through logical reasoning from the evidentiary facts is more properly classified a
finding of fact.” In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675 (1997)
(citations and internal quotation marks omitted). Whether Barnette’s “right arm
condition resulted from a fortuitous event, an interruption of his work routine, or an
unusual task” was a determination requiring “the application of legal principles”—to
wit, the definition of “accident” as developed in our State’s worker’s compensation
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Opinion of the Court
jurisprudence—and, thus, it is a conclusion of law. See id. Regardless of how they
may be labeled, we treat findings of fact as findings of fact and conclusions of law as
conclusions of law for purposes of our review. See, e.g., N.C. State Bar v. Key, 189
N.C. App. 80, 88, 658 S.E.2d 493, 499 (2008) (“[C]lassification of an item within [an]
order is not determinative, and, when necessary, the appellate court can reclassify an
item before applying the appropriate standard of review.”). Accordingly, we must
consider whether the challenged portion of denominated finding of fact 25 and
conclusion of law 4 are supported by the Commission’s other findings of fact. See
Oliver, 143 N.C. App. at 170, 544 S.E.2d at 608 (citation omitted).
Under the Worker’s Compensation Act (“the Act”), an employee
is entitled to compensation for an injury only if (1) it is
caused by an accident, and (2) the accident arises out of and
in the course of employment. . . .
[The Act] defines injury to mean only injury by accident
arising out of and in the course of the employment. Our
Supreme Court has defined the term accident as used in
the . . . Act as an unlooked for and untoward event which
is not expected or designed by the person who suffers the
injury; the elements of an accident are the interruption of
the routine of work and the introduction thereby of unusual
conditions likely to result in unexpected consequences.
Shay v. Rowan Salisbury Sch., 205 N.C. App. 620, 624, 696 S.E.2d 763, 766 (citations,
internal quotation marks, and some brackets omitted; emphasis added), appeal
dismissed, 364 N.C. 435, 702 S.E.2d 216 (2010). “[U]nusualness and unexpectedness
are [the] essence” of an accident under the Act. Smith v. Cabarrus Creamery Co., 217
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Opinion of the Court
N.C. 468, 472, 8 S.E.2d 231, 233 (1940). “If an employee is injured while carrying on
his usual tasks in the usual way the injury does not arise by accident. An accidental
cause will be inferred, however, when an interruption of the work routine and the
introduction thereby of unusual conditions likely to result in unexpected consequences
occurs.” Gunter v. Dayco Corp., 317 N.C. 670, 673, 346 S.E.2d 395, 397 (1986)
(citations omitted; emphasis added).
This rule applies even where the usual tasks of an employee’s work are
physically awkward, strenuous, or demanding. For example, in Porter v. Shelby Knit,
Inc., the injured employee was a knitter whose usual work “duties included doffing,
a task which entailed pulling rods from rolls of cloth.” 46 N.C. App. 22, 23, 264 S.E.2d
360, 361 (1980) (internal quotation marks omitted). Because the evidence showed
“that, on the occasion of [the] plaintiff’s injury[,] withdrawal of the rod was unusually
difficult because the roll of cloth was extra tight, . . . . [and, as a result,] the effort
which [the] plaintiff exerted was unusual[,]” this Court affirmed the Commission’s
conclusion that her injury was the result of an accident. Id. at 27, 264 S.E.2d at 363
(emphasis added). The Court reasoned that unusual conditions, to wit, the extra
tightness of the roll requiring unusual effort and exertion, constituted an
“interrupti[on of] what was [the] plaintiff’s normal work routine. . . .” Id.
Likewise, in Calderwood v. Charlotte-Mecklenburg Hosp. Auth., the injured
employee was a labor and delivery nurse whose patients frequently received epidural
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Opinion of the Court
blocks that left them in need of the nurse’s help to raise their legs during childbirth.
135 N.C. App. 112, 113, 519 S.E.2d 61, 62 (1999), disc. review denied, 351 N.C. 351,
543 S.E.2d 124 (2000). This Court reversed the Commission’s conclusion that the
nurse’s injury was not the result of an accident, noting that, when injured, she had
been performing her usual strenuous duties of helping a patient who had received an
epidural lift her legs, but that unusual conditions had interrupted her normal work
routine. Id. at 116, 519 S.E.2d at 63-64. Specifically, “the undisputed evidence [was]
that [the p]laintiff had never in her eleven years of work with [the employer] assisted
a patient in child delivery where she was required, without any assistance from the
patient, to lift the leg(s) of the patient, especially a patient weighing 263 pounds.” Id.
at 115-16, 519 S.E.2d at 63.
In a case involving an even more physically demanding normal work routine,
this Court concluded that a compensable injury by accident occurred where a
professional football player, “engaging in his normal work duty of blocking an
offensive lineman, . . . was injured because he was forced by another player into
utilizing an unusual and awkward blocking or work technique that was not normally
used in [the player’s] normal work routine.” Renfro v. Richardson Sports, Ltd.
Partners, 172 N.C. App. 176, 183, 616 S.E.2d 317, 324 (2005) (emphasis added), disc.
review denied, 360 N.C. 535, 633 S.E.2d 821 (2006). In that case, the Commission’s
critical findings of fact were:
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Opinion of the Court
9. At practice on August 7, 2001, [the] plaintiff was
playing defense at a linebacker position. During a
particular play, [the] plaintiff became engaged by a block
from an offensive lineman.
10. At the point when the offensive player engaged [the]
plaintiff with the block, the impact caused [the] plaintiff’s
left hand and wrist to be moved down and around, forcing
it into what [the] plaintiff described as an awkward
position.
11. It was unexpected and unusual for the offensive
player to block [the] plaintiff with an impact that caused
his left hand and wrist into an awkward position. At the
time of injury, [the] plaintiff was engaged in an activity
within the scope of his employment contract and was
taking reasonable measures to protect himself from injury,
given the nature of the game. [The p]laintiff was required
to do what he was doing at the time of injury and had no
choice but to perform his job as best he could,
notwithstanding the risk of injury.
Id. at 181-82, 616 S.E.2d at 323. This Court held that these findings of fact supported
the Commission’s conclusion that, “[a]lthough an injury sustained while playing
football may not be an unusual occurrence, such injury [under the circumstances
present here] is not a probable, intended consequence of the employment and
constituted an unlooked for and untoward event that was not expected or designed
by [the] plaintiff.” Id. at 182, 616 S.E.2d at 324.
Regarding the work activity Barnette was engaged in when he sustained his
injury, the Commission found as fact:
1. At the time of hearing before the Deputy
Commissioner, [Barnette] was 59 years old. He has a high
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Opinion of the Court
school diploma. [Barnette] worked as a delivery driver for
Defendant-Employer from November 2004, through
August 2012. [Barnette] estimated his deliveries consisted
of approximately 80% to 85% appliances and that he often
delivered with co-worker, Ron Alcorn.
2. On August 8, 2012, [Barnette] testified that he and
Mr. Alcorn delivered a side-by-side refrigerator to a home
on Bald Head Island (“BHI”) after making four or five other
deliveries. After removing the doors of the refrigerator,
[Barnette] and Mr. Alcorn lifted the refrigerator up a
winding staircase leading to the second-story kitchen of the
home. [Barnette] testified that he and Mr. Alcorn were
unable to make the final turn into the kitchen and decided
to head back down the stairs, when his right hand went
completely numb, roughly three-fourths of the way down the
stairs. [Barnette] testified that he immediately
experienced numbness, but no pain, and that he used his
left arm to help Mr. Alcorn finish the descent.
3. It was not uncommon for [Barnette] to deliver large
appliances upstairs at homes like the one in question at
BHI, which have “reverse” floor plans, with the kitchen on
a second or third level. He described the homes on BHI as
“tight” and with narrow staircases. Regarding the home in
question, [Barnette] testified that the staircase was not a
standard staircase and was unusually tight.
....
5. Ron Alcorn testified at the hearing before the
Deputy Commissioner that he and [Barnette] worked
together four to five times per week before [Barnette’s]
workplace injury and that about 75% of the time, an old
refrigerator will have to be removed from the home to make
room for the new one. Mr. Alcorn recalled the day of the
incident, stating that he and [Barnette] only made it two-
thirds of the way up the staircase with the new refrigerator
when they decided it was not going to fit and that they
should return downstairs. Mr. Alcorn testified that the
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Opinion of the Court
staircase involved in this claim was narrow, that most of
the staircases at the homes at BHI were “32-36” inches wide,
but this staircase was “29-30” inches wide.
(Emphasis added). These findings of fact indicate that, like the professional football
player in Renfro, Barnette’s usual work routine and normal work duties were
physically strenuous, and that those duties often included the delivery of large
appliances, like refrigerators, to homes on BHI with reverse floor plans and narrow
staircases and the removal of customers’ old refrigerators back down the staircases.
However, the above-quoted findings of fact also plainly establish “the introduction . . .
of unusual conditions likely to result in unexpected consequences[,]” see Gunter, 317
N.C. at 673, 346 S.E.2d at 397 (citations omitted), during the delivery when Barnette
sustained his injury.
Specifically, the uncontradicted evidence and findings of fact 2, 3, and 5
establish that, at the home where Barnette was injured, “the staircase was not a
standard staircase and was unusually tight” such that, instead of carrying the new
refrigerator up the stairs, setting it down, and then later carrying an old refrigerator
down the stairs, Barnette and Alcorn “only made it two-thirds of the way up the
staircase with the new refrigerator when they decided it was not going to fit and that
they should return downstairs.” Thus, the “unusual condition[]” of the narrow, non-
standard staircase “result[ed] in [the] unexpected consequence[]” of Barnette having
to hold and carry the refrigerator two-thirds of the way up the staircase and then
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Opinion of the Court
back down again without a break or the opportunity to reposition his hold on the
appliance to better accommodate the descent. See id. Simply put, Barnette, while
“engaging in his normal work duty of [delivering a refrigerator to a second-floor
kitchen by means of a staircase], . . . was injured because he was forced by [the
unusual narrowness of the staircase] into utilizing an unusual and awkward . . . work
technique that was not normally used in his normal work routine[,]” to wit, having to
carry the new refrigerator back down the unusually narrow staircase without a break
or pause. See Renfro, 172 N.C. App. at 183, 616 S.E.2d at 324.
Plainly then, the portion of denominated finding of fact 25 stating that
Barnette “failed to show that his right arm condition resulted from a fortuitous event,
an interruption of his work routine, or an unusual task. . . . [r]ather, [than while he
was] performing his usual, strenuous job in its usual way” is not supported by the
Commission’s findings of fact 2, 3, and 5. Further, because those findings of fact
establish that Barnette did not sustain his injury while “carrying on his usual tasks
in the usual way[,]” but rather as a result of “an interruption of the work routine and
the introduction thereby of unusual conditions[,]” an accidental cause must be
inferred. See Gunter, 317 N.C. at 673, 346 S.E.2d at 397 (citations omitted).
Accordingly, conclusion of law 4—that Barnette “failed to prove his injury resulted
from an ‘accident’ ”—is not supported by the Commission’s findings of fact.
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Conclusion
The Commission’s challenged findings of fact 4, 6, and 7 are supported by
competent evidence, see Oliver, 143 N.C. App. at 170, 544 S.E.2d at 608, but are not
pertinent to the issue of whether Barnette’s injury is compensable. Regarding
compensability, unchallenged finding of fact 24 and conclusion of law 3 establish that
Barnette’s injury was caused by the refrigerator-moving incident during his work,
thus satisfying the requirement that the injury arise out of and in the course of
employment. See Shay, 205 N.C. App. at 624, 696 S.E.2d at 766. However, the
challenged part of denominated finding of fact 25 and conclusion of law 4—that
Barnette’s injury was part of his normal work routine and not the result of an
accident—are not supported by the Commission’s other findings of fact. See Gunter,
317 N.C. at 675, 346 S.E.2d at 398. Accordingly, the Commission’s opinion and award
must be reversed and the matter remanded for further proceedings to determine the
benefits to which Barnette is entitled as a result of his compensable injury by accident
and the entry of an appropriate amended opinion and award.
REVERSED AND REMANDED.
Judges HUNTER, JR., and INMAN concur.
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