An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 January 2009
COLTER BRADLEY STANFIELD, Employee,
I.C. No. 600557
METAL BEVERAGE CONTAINER/
BALL CORPORATION, Employer,
Court of Appeals
SELF-INSURED, SPECIALTY RISK
Appeal by defendant from an Opinion and Award filed 30 January
2008 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 25 September 2008.
Patterson Harkavy, L.L.P., by Henry N. Patterson, Jr., and
Jessica E. Leaven, for plaintiff appellee.
Teague, Campbell, Dennis & Gorham, L.L.P., by Tamara R. Nance,
for defendant appellant.
(“defendant”), appeals from an Opinion and Award of the North
Carolina Industrial Commission (“the Commission”) finding that
injury under the North Carolina Workers’ Compensation Act.
-2Plaintiff was employed by defendant as a spray operator in a
plant devoted primarily to the manufacture of cans for a nearby
brewery. When a coworker was absent, plaintiff would be reassigned
to the position of bodymaker adjuster.
While assigned as a spray
operator, plaintiff worked only on the floor level of the plant;
adjuster, his work station was located on a raised platform. The
bodymaker adjuster normally remained on the platform, but would
descend three or four steps to the floor level whenever necessary
to clear jams in the trimmer machines.
In both his regular job and in the position of bodymaker
adjuster, plaintiff was required to pick up cans when they fell out
of the machines.
The company provided plaintiff with a can hook so
that, especially when working on the floor level as a spray
operator, he would not have to bend over to reach the cans.
However, while working as a bodymaker adjuster, plaintiff was
required to pick up cans that had fallen behind the trimmer into an
area unreachable from the lower level.
To retrieve those cans,
plaintiff would have to squat or crouch down on the platform
because the can hook was not long enough to cover the distance from
the standing position.
On 28 January 2006, plaintiff worked on the night shift and
was assigned to work as a bodymaker adjuster.
One of the bodymaker
machines to which he was assigned that night was pushing cans out
at an angle, causing the trimmer machine to jam more often than
-3normal.1 Since the trimmer was jamming so frequently, plaintiff had
to walk down the steps, clear the jam, and pick up fallen cans
repeatedly during his shift.
plaintiff crouched once again to remove fallen cans from behind the
When he stood and turned to walk away, he felt
his knee pop and experienced acute pain which persisted throughout
Plaintiff reported his injury the next day and was
referred to Dr. Joseph Guarino on 2 February 2006.
proved ineffective and plaintiff’s symptoms persisted, defendant
denied liability for his workers’ compensation claim.
subsequently sought the medical opinion of his family doctor, who
ordered a magnetic resonance imaging (“MRI”) and referred him to
Dr. Frank Rowan, an orthopedic surgeon.
Dr. Rowan reviewed the
MRI, which revealed a tear of plaintiff’s lateral meniscus, and
scheduled plaintiff for arthroscopic surgery.
The surgery, which
took place on 21 March 2006, allowed plaintiff to return to his
regular job by 23 April 2006.
However, plaintiff still suffered a
seven percent permanent partial impairment rating to his left leg.
While still recovering from surgery, plaintiff initiated this
workers’ compensation claim by filing a Form 18, alleging injury to
Marlon J. Herring, Jr., a production supervisor employed by
defendant Ball Corporation, testified that over the course of “a
good day” the machines might jam “as few as ten or less” times;
whereas, “on a bad day” they may jam more than forty times. The
Commission found that the “trimmer was jamming every ten minutes or
so.” Extrapolated over a twelve-hour shift, this factual finding
underscores the abnormal frequency with which these jams occurred
and substantiates the Commission’s finding that the trimmer was
jamming “more than normal.”
-4his left knee suffered while working for defendant on 29 January
Defendant denied this claim on the grounds that the injury
was not suffered as the result of an accident, and as such was not
compensable under the Workers’ Compensation Act.
Plaintiff filed a request for a hearing and the case was heard
before Deputy Commissioner Morgan S. Chapman on 11 January 2007.
Deputy Commissioner Chapman concluded that the injury was not the
Plaintiff appealed to the Commission, which heard
the case on 5 November 2007.
On 30 January 2008, the Commission
filed an Opinion and Award, reversing Deputy Commissioner Chapman’s
decision, and awarding compensation for plaintiff’s injuries.
“Appellate review of an award from the Industrial Commission
is generally limited to two issues: (1) whether the findings of
fact are supported by competent evidence, and (2) whether the
conclusions of law are justified by the findings of fact.” Clark v.
Wal-Mart, 360 N.C. 41, 43, 619 S.E.2d 491, 492 (2005).
award is granted upon review of the Commission as provided in N.C.
Gen. Stat. § 97-85 (2007), the findings of fact shall be deemed
conclusive and binding. N.C. Gen. Stat. § 97-86 (2007). Defendant
does not contend that the findings of the Commission were not based
on competent evidence, but rather challenges its conclusion of
Our review in this case is thus limited to whether the
Defendant made nine assignments of error, but focused the
argument in its brief solely on Assignment of Error No. 7, which
challenges the Commission’s legal conclusion that plaintiff’s
-5Commission’s findings of fact support its legal conclusion that
plaintiff’s injury was compensable under the Workers’ Compensation
Act as an “injury by accident arising out of and in the course of
employment.” N.C. Gen. Stat. § 97-2(6) (2007).
An accident under the Workers’ Compensation Act has been
defined as “‘an unlooked for and untoward event which is not
expected or designed by the person who suffers the injury.’” Porter
v. Shelby Knit, Inc., 46 N.C. App. 22, 26, 264 S.E.2d 360, 363
(1980) (citation omitted). “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.”
The findings of the Commission fail to establish either of
bodymaker adjuster, not while working in his regularly assigned
position as a spray operator.
However, the Full Commission’s
reassignment constituted an interruption of plaintiff’s “normal
activity the Commission found to be required in “both his regular
injury resulted from an accident. Because defendant’s other
assignments of error were not argued, they are deemed abandoned.
See N.C. R. App. P. 28(b)(6) (2008) (“Assignments of error not set
out in appellant’s brief, or in support of which no reason or
argument is stated or authority cited, will be taken as
-6job and in the bodymaker position.”
“[O]nce an activity, even a
strenuous or otherwise unusual activity, becomes a part of the
employee’s normal work routine, an injury caused by such activity
is not the result of an interruption of the work routine or
otherwise an ‘injury by accident’ under the Workers’ Compensation
Act.” Bowles v. CTS of Asheville, 77 N.C. App. 547, 550, 335 S.E.2d
502, 504 (1985).
“The cases upholding compensation awards involve
some activity which is unusual for that employee.”
Id. at 550, 335
Industries, 61 N.C. App. 258, 300 S.E.2d 455 (1983)); see also
Gunter v. Dayco Corp., 317 N.C. 670, 675-76, 346 S.E.2d 394, 398
(1986) (compensating the plaintiff who “had not learned how to do
the new job when he was injured”).
Here, regardless of his station assignment on any given day,
the Commission’s findings of fact establish that plaintiff’s daily
work duties included the activity he was conducting when injured.
The Commission found that, in order to pick up cans from the
bodymaker position, plaintiff had to descend a set of stairs or
squat from his place atop a raised platform, which are body
movements not required from the spray operator position; however,
the Commission also found that plaintiff had been “trained in the
bodymaker position,” and worked there “often,” including twenty-one
times between 12 July and 5 October 2005 and six times during the
month of his injury.
In fact, plaintiff only worked a total of
eighteen days during the month of his injury; thus, he was employed
-7as a bodymaker adjuster a full third of his shifts during that
Accordingly, the recurrent nature of plaintiff’s employment as
a bodymaker adjuster precludes a determination that picking up
cans, even if that activity required squatting or descending
stairs, was unusual for him.3
Therefore, we conclude, as did
bodymaker adjuster position often enough that performing those work
duties had become a regular part of his work routine.”
Next, this Court has held that when an employee sustains an
injury by performing an unusual volume of ordinarily assigned work
duties, it is not an accident and therefore is not compensable. See
Reams v. Burlington Industries, 42 N.C. App. 54, 255 S.E.2d 586
(1979)(denying compensation for injury suffered because employee
had to lift 100, rather than the usual 30, bales of cloth); Dyer v.
Livestock, Inc., 50 N.C. App. 291, 273 S.E.2d 321 (1981) (denying
compensation for injury suffered because the plaintiff singlehandedly operated machines usually operated by three employees).
Here, in concluding that plaintiff had been injured by an
“accident,” the Commission focused on the “unusual conditions”
Cf. Adams, 61 N.C. App. 258, 300 S.E.2d 455 (compensating
the plaintiff for an injury incurred while he was performing duties
with distinct physical requirements from that of his regular
position). However, in Adams, though the evidence showed the
plaintiff had performed these duties “on previous occasions,” the
Court did not mention the number of times, recency, or frequency
with which he had worked in the new position. In contrast, each of
these factors in the case at bar indicate that the physical
requirements unique to bodymaker adjuster position had become part
of plaintiff’s normal work routine by the date of his injury.
Commission stated that “the conditions plaintiff experienced on the
shift beginning January 28, 2006 compared to previous shifts when
bodymaker machine and the conditions resulting from the frequent
number of jams in the trimmer.” Specifically, the Commission found
that “it was unusual for plaintiff to have to climb the steps and
Importantly, however, the Commission also made a finding of fact
that the duties of the bodymaker adjuster included “clearing jams
on the bodymaker and trimmer machines, changing the tooling on the
machines, keeping the machines running and cleaning up the work
Thus, even if the trimmer machines were jamming with
unusually high frequency, the Commission’s findings establish that
the only thing “unusual” about plaintiff’s shift on 26 January 2008
was the volume of ordinarily assigned work duties.
In the case at bar, plaintiff’s orthopedic surgeon explained
that the frequent stair climbing and squatting which was required
weakened the muscles which would normally protect the meniscus and
therefore was a contributing factor in the acute meniscal tear
plaintiff suffered. Consequently, he opined to a reasonable degree
of medical certainty that this increased activity was a direct
cause of the lateral meniscal tear; the Commission adopted this
In doing so, the Commission chose not to base
-9its decision on the activity itself but instead on the frequency
with which that activity was performed.
In the absence of some new
circumstance not part of plaintiff’s normal work routine, the
Workers’ Compensation Act does not authorize compensation simply
because plaintiff was engaged in more than the usual amount of work
of the type normally assigned. See Reams, 42 N.C. App. at 57, 255
S.E.2d at 588.
For the foregoing reasons, we hold there are insufficient
findings of fact to support the legal conclusion that plaintiff’s
injuries were the result of an accident. Accordingly, the Opinion
and Award of the Commission is reversed.
Judges TYSON and CALABRIA concur.
Report per Rule 30(e).
Concurred prior to 31 December 2008.