Phillips v. Boling Co.

EAGLES, Judge. Plaintiffs sole assignment of error on appeal is whether the full Commission erred in finding that the deputy commissioner was justified in concluding that the evidence supported a finding [141] that the incident in question was not an accident arising out of and in the scope of plaintiffs employment. We find no error. Plaintiff does not contend that the findings and conclusions of the full Commission as adopted from the opinion and award of the deputy commissioner are not supported by competent evidence in the record so as to make those findings and conclusions erroneous and contrary to law. Plaintiff has not assigned as error any particular finding of fact and has not proposed a suggestion for required additional or different findings of fact. Rule 10(b)(2), Rules of Appellate Procedure. The only exception filed by plaintiff-employee here is to the judgment of the full Commission in “finding that the hearing examiner was justified in concluding that the evidence supported a finding that the incident in question was not an accident.” This is a broadside exception and does not present for review the sufficiency of the evidence to support any particular finding of fact. Mayhew Electric Co. v. Carras, 29 N.C. App. 105, 223 S.E. 2d 536 (1976); Hatchell v. Cooper, 266 N.C. 345, 146 S.E. 2d 62 (1966). Findings of fact made by the Commission are conclusive on appeal when supported by competent evidence, even though there is evidence to support a contrary finding of fact. Walston v. Burlington Industries, 304 N.C. 670, 285 S.E. 2d 822 (1982). Plaintiffs arguments on appeal tend to show that there is evidence in the record which could support findings of fact contrary to those reached by the full Commission. However, absent a showing that the facts and conclusions found by the full Commission are not supported by competent evidence, plaintiff may not prevail on appeal. The full Commission’s opinion and award states, in pertinent part In the Commission’s opinion, Deputy Commissioner Rush made the correct decision, based upon the evidence and the applicable law. Therefore the Commission AFFIRMS and ADOPTS the opinion and award filed in this case on April 27, 1983. The opinion and award of the deputy commissioner concluded, in pertinent part [142] The plaintiff did not, at the time complained of, sustain an injury by accident and is, therefore, not entitled to the benefits of the Worker’s Compensation Act. G.S. 97-2(6). This conclusion was based on findings of fact adduced from evidence which tended to show that plaintiff was working as a supervisor in more than one area and that his job involved lifting. On the date in question, the fan repair was part of his job description. Plaintiff had the assistance of a full maintenance crew and one helper at the time of the incident complained of. Plaintiff was not shown to be in an awkward position and no other unusual event took place at that time. There was nothing unusual about the weight he was lifting and according to plaintiffs own testimony, he had lifted heavier objects in the past. Plaintiff felt pain only after he put the fan shaft down and had taken a few steps. In addition, plaintiff had prior back problems which could have been the cause of the difficulty complained of. We note that there is no claim here that the 25 October 1982 incident, in which plaintiff slipped and fell while covering wood shavings, was an accident arising out of and in the scope of his employment. We hold that there is competent evidence which tends to show that the task of lifting the fan shaft was a part of plaintiffs job duties which supports the opinion and award of the full Commission. Because there is no exception to any particular finding of fact and since the findings of the Industrial Commission are supported by evidence in the record, we are bound by the findings of fact of the Industrial Commission. They are not subject to review in this appeal. Blalock v. Roberts Co., 12 N.C. App. 499, 183 S.E. 2d 827 (1971). The opinion and award of the full Industrial Commission is therefore Affirmed. Judges Webb and Cozort concur.