Griggs v. Eastern Omni Constructors

2. An employment relationship existed between plaintiff and defendant-employer on April 6, 1999, the date of the alleged injury by accident.

3. Plaintiff's average weekly wage was $670.00.

4. The parties submitted medical records, which were attached to the Pre-trial Agreement, from the following providers: (a) James D. Kindl, M.D., (b) Robert E. "Butch" Cassidy, M.D., and (c) Rehabilitation Services of Danville.

2. Part of an electrician's normal job is to "pull wire" through a conduit. This is done both with installation and removals. If the wire is to be discarded, then it can be cut, but if it is to be saved, then it needs to be pulled out and greater care must be taken. An electrician may be in an awkward position from time to time, depending on the job.

3. On April 6, 1999, plaintiff was working for defendant-employer on a job site. He was involved in removing an electrical line that was to be installed elsewhere. In order to do this, plaintiff needed to pull the wire through the conduit. He had another employee assisting him. Plaintiff was on a lift and was reaching up and across his body. As plaintiff pulled the wire, he felt a pop and pain in his right shoulder.

4. Plaintiff reported his injury to a supervisor and was told to see a physician. Plaintiff initially came under the care of Dr. James Kindl, and later was seen by Dr. Robert Cassidy. An MRI and x-rays were obtained and on May 9, 1999, Dr. Cassidy assessed plaintiff with a rotator cuff strain/sprain with tendonitis/bursitis. When conservative treatment failed to bring relief, plaintiff eventually underwent surgery on his right shoulder.

5. The evidence fails to show that plaintiff's right shoulder injury was caused by an accident arising out of and in the course of his employment with defendant-employer. While plaintiff indicated that he was in an awkward position, his testimony is equivocal regarding the unusualness of the incident. The greater weight of the evidence including his testimony demonstrates that there was no interruption of his regular work routine, as pulling wire sometimes in awkward positions was a normal part of plaintiff's job routine. Significantly, plaintiff had been working as an electrician pulling wire for 22 years. Moreover, there was nothing unusual in what plaintiff was required to do in removing the wire on April 6, 1999.

2. Each side shall pay their own costs.

This the _____ day of November 2001.

S/_____________________________ DIANNE C. SELLERS COMMISSIONER

CONCURRING:

S/_____________________________ BUCK LATTIMORE CHAIRMAN

S/_____________________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

I respectfully dissent from the majority's decision to affirm the Deputy Commissioner's Opinion and Award which held that plaintiff failed to prove that he sustained an injury by accident arising out of and in the course of his employment with defendant-employer.

Under the North Carolina Workers' Compensation Act, an on-the-job incident resulting in a shoulder injury, as in the case at bar, is compensable only if it is caused by an "accident" and the worker bears the burden of proving that an accident occurred.Morrison v. Burlington Industries, 304 N.C. 1, 282 S.E.2d 458 (1981). An accident is defined as the interruption of the work routine and the introduction of unusual conditions likely to result in unexpected consequences. Adams v. BurlingtonIndustries, 61 N.C. App. 258, 260, 300 S.E.2d 455, 456 (1983). In this case the majority finds that pulling wire while in awkward positions was a normal part of plaintiff's job routine and that there was nothing unusual in what plaintiff was required to do on April 6, 1999.

I believe that the holding in Calderwood v.Charlotte-Mecklenburg Hosp. Auth., 135 N.C. App. 112,519 S.E.2d 61 (1999), rev. denied, 351 N.C. 351, 543 S.E.2d 124 (2000) is dispositive and requires finding a compensable injury by accident under the facts of this case. In Calderwood a labor and delivery nurse injured her shoulder while lifting the leg of a heavy patient. The Court of Appeals found that the fact that the nurse's job responsibilities included assisting patients who received epidurals resulting in a total block was not dispositive. The critical issue was whether the nurse's regular work routine involved lifting the legs of women weighing 263 pounds who had total blocks as a result of epidurals.

The evidence in this case shows that on April 6, 1999 plaintiff was assigned the job of disconnecting all the electrical systems and pulling and saving all control wiring so that the wiring could be reinstalled in a new line. Plaintiff testified that this was the first time in his 22 years as an electrician that he was asked to pull and save the old wiring for reinstallation. The task involved pulling wire up through a pipe, pulling it out on the floor, straightening the wire out, and then re-pulling it back up in the air and down through another pipe to a control panel. At the time he injured his shoulder, plaintiff was lifting the wire and holding it over his head to guide it to go down to the pipe. Plaintiff had not been in a situation before where he had to pull wire in this fashion. In addition, plaintiff was working on a strict time line and, due to a reduction in personnel, was working with no helper. All of these unusual conditions constituted an interruption of plaintiff's regular work routine. Although employer's witness Ben Redman testified that on more than one occasion he had pulled wire the way plaintiff described, the undisputed evidence is that plaintiff had never in his 22 years of electrical work performed his job as described. Pursuant to the holding in Calderwood, the fact that plaintiff's job responsibilities included pulling wire is not dispositive. The question is whether plaintiff's regular work routine required pulling old wire in such a way that the wire could be saved for reinstallation, with no helper and under a strict time frame, and there is no evidence that it did.

Therefore, for the foregoing reasons, I must respectfully dissent from the opinion of the majority in this case. I believe that the evidence shows that plaintiff sustained a compensable injury by accident arising out of and in the course of his employment with defendant-employer.

S/_____________________________ LAURA KRANIFELD MAVRETIC COMMISSIONER