An unpublished opinion of the North Carolina Court of Appeals does not constitute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.



                                NO. COA13-649
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 7 January 2014


JAMES MICHAEL VENERIS,
     Employee-Plaintiff,

      v.                                      From the North Carolina
                                              Industrial Commission
                                              I.C. File No. 770306
DOMTAR PAPER COMPANY, LLC, F/K/A
WEYERHAEUSER COMPANY,
     Self-Insured Employer,

      and

SPECIALITY RISK SERVICES,
     Third Party Administrator,

      Defendants.


      Appeal by plaintiff from opinion and award entered 22 March

2013 by the North Carolina Industrial Commission.                   Heard in the

Court of Appeals 6 November 2013.


      Wallace and Graham,            P.A.,    by    Edward     L.   Pauley,     for
      plaintiff-appellant.

      Teague Campbell Dennis & Gorham LLP, by Tracey L. Jones and
      Leslie P. Lasher, for defendants-appellees.


      HUNTER, JR., Robert N., Judge.
                                       -2-
    James Michael Veneris (“Plaintiff”) appeals from an opinion

and award of the North Carolina Industrial Commission denying

his claim for a ten percent compensation increase pursuant to

N.C. Gen. Stat. § 97-12 (2011).              Plaintiff contends that he is

entitled to the compensation increase because his injury was

caused by the willful failure of               his employer,        Domtar Paper

Company, LLC (“Defendant”), to comply with 29 C.F.R. § 1910.133

(2013).    For the following reasons, we disagree and affirm the

Industrial Commission’s opinion and award.

                   I.     Factual & Procedural History

    On 22 May 2007, Plaintiff filed a claim for benefits with

the Industrial Commission seeking compensation for an eye injury

Plaintiff sustained while working at Defendant’s paper plant.

Defendant denied liability and the matter came on for a hearing

on 13 July 2011.         The evidence presented at the hearing tended

to show the following.

    Plaintiff began working for Defendant on 16 May 1977 at

Defendant’s      paper      plant     in     Plymouth,        North      Carolina.

Plaintiff’s first position with the company was as an “extra

board,” a job where Plaintiff was asked to “fill-in” for jobs as

needed    by   Defendant.       Plaintiff’s     work     as    an     extra   board

required   him   to     spend   his   days   working   in     maintenance      with
                                           -3-
millwrights, welders, and pipefitters.                   Plaintiff held the extra

board     position      for    approximately        two     and    a   half     years.

Thereafter, Plaintiff moved into various roles including working

as    boiler    room    utility    person    and    in    Defendant’s     electrical

generation plant.

       In November 1982, Plaintiff became a utility mechanic, a

position he held until January 2011.                      As a utility mechanic,

Plaintiff was tasked with repairing and maintaining equipment at

the   plant.      In    this    role,   Plaintiff        was   required   to    assist

welders at least three days a week for periods of time as short

as twenty minutes and as long as the entire work day.                      Plaintiff

was required to hold material while the welders worked, which

placed Plaintiff in close proximity to the welding arc.                           As a

result, Plaintiff was often exposed to welding light.

       Plaintiff testified at the hearing that Defendant provided

welders    with    welding       shields    and    mandated       their   use    while

actively    welding.          Plaintiff    was    provided      with   clear    safety

glasses    to    wear    while    assisting       the    welders    inside      and   UV

sunglasses to wear when working outside.                       Plaintiff was often

instructed by the welder to avert or close his eyes during the

welding.       Plaintiff testified that his eyes had been burned from
                                           -4-
the welding arc on at least one occasion during his tenure at

the paper plant.

      On   the      morning    of     25   December      2005,    Plaintiff        began

noticing an impairment to his central vision.                           After several

medical    evaluations,         a     neuro-opthamologist             concluded     that

Plaintiff was probably suffering from welder’s arc retinopathy,

a    condition      caused    by    exposure     to     intense       welding     light.

Although Plaintiff continued to work for Defendant after this

diagnosis, his vision began to affect his performance.

      Calvin     Outlaw       (“Mr.    Outlaw”),       Defendant’s        Safety     and

Security Manager, testified that employees were supplied with

standard safety glasses, tinted sunglasses for outdoor use, and

welding    shields      for     welding.         Mr.    Outlaw        testified     that

Defendant was aware of its obligation to provide appropriate eye

protection     to    its     employees     and   believed        it    had   met    that

obligation.         Mr. Outlaw admitted that Plaintiff did not have

welding eye protection and admitted that Plaintiff was exposed

to   welding     light.       Nevertheless,       Mr.    Outlaw       testified     that

Defendant would have provided the necessary eye protection to

Plaintiff if Defendant had identified or recognized the need

ahead of time.
                                         -5-
      After     hearing     the       foregoing       evidence,         the      Deputy

Commissioner entered an opinion and award on 10 September 2012

concluding that Plaintiff’s eye injury was compensable under the

Workers’ Compensation Act.            The opinion and award also concluded

that Plaintiff’s compensation should be increased by ten percent

pursuant to N.C. Gen. Stat. § 97-12 due to Defendant’s willful

failure to provide appropriate eye protection as required by 29

C.F.R.   §     1910.133.         Both    parties      appealed        to   the    Full

Commission.

      On 22 March 2013, the Full Commission entered an opinion

and award upholding the compensability of Plaintiff’s injury,

but   denied   Plaintiff’s       claim    for   a    ten   percent      increase    in

compensation under N.C. Gen. Stat. § 97-12.                          Plaintiff filed

timely notice of appeal to this Court on 2 April 2013.

                II.    Jurisdiction & Standard of Review

      Plaintiff’s appeal from the Industrial Commission’s opinion

and award lies of right to this Court pursuant to N.C. Gen.

Stat. § 7A-29(a) (2011).         Accord N.C. Gen. Stat. § 97-86 (2011).

       Our    review   of   an    opinion      and   award      of   the   Industrial

Commission     “is   limited     to   consideration        of   whether       competent

evidence supports the Commission’s findings of fact and whether

the findings support the Commission’s conclusions of law.                         This
                                            -6-
‘court’s duty goes no further                    than to determine whether the

record contains any evidence tending to support the finding.’”

Richardson v. Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660,

669 S.E.2d 582, 584 (2008) (citation omitted) (quoting Anderson

v. Lincoln Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274

(1965)).        “The Commission is the sole judge of the credibility

of the witnesses and the weight to be given their testimony.”

Anderson, 265 N.C. at 433–34, 144 S.E.2d at 274.

       However, “[c]onclusions of law by the Industrial Commission

are reviewable de novo by this Court.”                     Bond v. Foster Masonry,

Inc.,    139    N.C.   App.     123,      127,    532   S.E.2d    583,   585    (2000).

“Under a de novo review, the court considers the matter anew and

freely    substitutes       its     own    judgment      for   that   of    the   lower

tribunal.”        Craig v. New Hanover Cnty. Bd. of Educ., 363 N.C.

334,    337,     678   S.E.2d     351,     354    (2009)    (quotation      marks   and

citation omitted).

                                    III. Analysis

       The only question presented to this Court by Plaintiff’s

appeal     is     whether     the       Full     Commission      erred     in   denying

Plaintiff’s       claim     for     a    ten     percent    compensation        increase

pursuant to N.C. Gen. Stat. § 97-12.                    Plaintiff contends that he
                                              -7-
is   entitled      to    the    compensation        increase      because     Defendant

willfully violated 29 C.F.R. § 1910.133.                   We disagree.

       Pursuant to N.C. Gen. Stat. § 97-12, “[w]hen the injury or

death    [of     the    employee     in   a    workers’    compensation       case]       is

caused by the willful failure of the employer to comply with any

statutory requirement or any lawful order of the Commission,

compensation shall be increased by ten percent (10%).”                            As used

in this statute, “willful” is defined as “a deliberate purpose

not to discharge some duty necessary to the safety of the person

or property of another, a duty assumed by contract or imposed by

law.”     Brown v. Kroger Co., 169 N.C. App. 312, 318, 610 S.E.2d

447, 451 (2005) (quotation marks and citations omitted).

       Furthermore,       the   federal        occupational       safety    and    health

standards       promulgated     by    the      Occupational       Safety    and    Health

Administration (“OSHA”) are “statutory requirements” within the

scope of N.C. Gen. Stat. § 97-12.                   Id. at 317–18, 610 S.E.2d at

451;     see     also    N.C.   Gen.      Stat.      §   95-131(a)        (2011)       (“All

occupational safety and health standards promulgated under the

federal        act . . . shall       be       adopted    as   the    rules        of    the

Commissioner of this State unless the Commissioner decides to

adopt an alternative State rule . . . .”); N.C. Gen. Stat. § 95-

129(2)    (2011)       (“Each   employer       shall     comply    with    occupational
                                      -8-
safety and health standards or regulations promulgated pursuant

to this Article[.]”).      Relevant to Plaintiff’s claim, 29 C.F.R.

§   1910.133(a)(1)    places    an   affirmative        duty    on   employers     to

“ensure that each affected employee uses appropriate eye or face

protection   when    exposed    to   eye    or   face    hazards       from    flying

particles,   molten    metal,    liquid     chemicals,         acids   or     caustic

liquids,   chemical    gases    or   vapors,     or     potentially      injurious

light radiation.”

      Here, the Full Commission entered the following findings of

fact:

           12.   Calvin Outlaw, Defendant’s Safety and
           Security Manager since 2001, agreed with
           Plaintiff’s testimony that Plaintiff worked
           around welders quite often; that Plaintiff
           was exposed to welding light; that he did
           not have eye protection for that welding
           light; that utility mechanics were given
           sunglasses   and   safety   goggles   but not
           welding    protection;    that   goggles  and
           sunglasses do not protect against welding
           light; and that Plaintiff was not protected
           from welding light but he should have been.
           He had worked for Defendant for thirty-four
           years.

           13.   Mr. Outlaw also testified that United
           States Department of Labor Occupational
           Safety   &    Health   Administration    (OSHA)
           regulation 29 CFR § 1910.133 requires the
           employer   to   ensure   that  each    affected
           employee   use    appropriate  eye    or   face
           protection when exposed to eye or face
           hazards from flying particles, molten metal,
           liquid chemicals, acids or caustic liquids,
                                     -9-
            chemical gases or vapors, or potentially
            injurious   eye   radiation.      Mr.   Outlaw
            testified   that   based    upon   this   OSHA
            regulation,   Defendant   provided   employees
            with protective eye gear such as safety
            glasses, prescription eyewear with shields
            on them, and welding shields for welders.
            Mr. Outlaw believed that Defendant provided
            Plaintiff    and    other     employees    the
            appropriate protective gear.         There is
            insufficient evidence to show that Mr.
            Outlaw was aware of the hazards of welding
            light for utility mechanics prior to the
            hearing before the Deputy Commissioner.

Based on these findings of fact, the Full Commission entered the

following conclusion of law:

            10.    There is insufficient evidence to
            establish that Defendant willfully failed to
            comply with any specific OSHA regulation to
            award   an  increase    of  ten   percent   of
            Plaintiff’s     ongoing    temporary     total
            disability compensation. Defendant provided
            Plaintiff with clear safety glasses and UV
            tinted goggles towards the last five to ten
            years of his work in the plant.      There is
            insufficient evidence to find that Defendant
            was aware that the safety eye protection
            provided to Plaintiff would not provide
            protection   against   welders’  maculopathy,
            which is a rare condition.

In challenging the opinion and award of the Full Commission,

Plaintiff contends that Finding of Fact 13 is not supported by

competent    evidence   and   that    Conclusion   of   Law   10   is   not

supported by the findings of fact.         We address each in turn.
                                       -10-
      First, Plaintiff takes issue with two components of Finding

of   Fact   13:   (1)   that    “Mr.    Outlaw   believed    that    Defendant

provided    Plaintiff     and        other    employees     the     appropriate

protective gear;” and (2) that “[t]here is insufficient evidence

to show that Mr. Outlaw was aware of the hazards of welding

light for utility mechanics prior to the hearing before the

Deputy Commissioner.”       We hold that competent evidence exists in

the record to support both of these statements.                   Specifically,

Mr. Outlaw testified as follows:

            [Questioner:]      Okay.    Mr. Outlaw, are you
                               aware of any safety or OSHA
                               regulations     or   statutory
                               requirements that Weyerhauser
                               or Domtar is not following
                               with     regards    to     the
                               protection     from    welding
                               exposure?

            [Mr. Outlaw:]      No.

            [Questioner:]      So it’s your testimony that
                               Weyerhauser/Domtar         is
                               following all the regulations
                               required under OSHA?

            [Mr. Outlaw:]      Yes.

            . . . .

            [Questioner:]      Mr. Veneris was not protected
                               from hazardous light, is that
                               correct?

            [Mr. Outlaw:]      I would not go as far as to
                               say he wasn’t protected. We
                               -11-
                         will   supply    any   type    of
                         equipment that was needed.
                         If there was a need and they
                         had identified it to us or we
                         had recognized that it was a
                         hazard, he would have been
                         protected.    But from what he
                         was saying that he was only
                         wearing   clear    eyewear    and
                         never brought it up to any
                         type of leadership that there
                         was a hazard or caused any
                         problems, no—from what he’s
                         saying,     no,     he     wasn’t
                         protected.      But was there
                         equipment available for him
                         to—did   we    make    equipment
                         available?        If    he    was
                         exposed, we did.

         . . . .

         [Questioner:]   Mr. Outlaw, other than Mr.
                         Veneris claiming he has an
                         occupational disease related
                         to this peripheral exposure
                         to welding arcs there hasn’t
                         been any other claims to your
                         knowledge, correct? . . .

         [Mr. Outlaw:]   That is correct.

         . . . .

         [Questioner:]   [W]ould there have been any
                         reason     for    Domtar   or
                         Weyerhauser    to  think that
                         utility mechanics were in any
                         way put in harms way doing
                         their job?

         Mr. Outlaw:     No, no.

Accordingly, because Mr. Outlaw’s testimony indicated (1) that
                                                 -12-
Defendant       believed         it    had        been        providing     OSHA      compliant

protective gear to its employees, and (2) that Defendant was

unaware    of       the   hazard      faced       by     utility      mechanics,      the     Full

Commission had evidence tending to support Finding of Fact 13.

See Pittman v. Int’l Paper Co., 132 N.C. App. 151, 156, 510

S.E.2d 705, 709, aff’d per curiam, 351 N.C. 42, 519 S.E.2d 524

(1999) (“The facts found by the Commission are conclusive upon

appeal    to    this       Court      when       they    are       supported     by   competent

evidence,       even      when     there         is    evidence       to   support     contrary

findings.”).

    Second, Plaintiff contends that Conclusion of Law 10 is not

supported      by    the    findings         of       fact.        Specifically,      Plaintiff

directs    our       attention        to     a    number       of    the   Full    Commissions

findings of fact tending to show that Defendant knew about the

hazards of welding light, knew that Plaintiff worked in close

proximity       to     welding        light,          knew    that    plaintiff       would    be

affected       by    the    welding          light,          and    knew   about      the     OSHA

regulation, yet provided safety glasses to Plaintiff that were

not rated for welding.                 Plaintiff contends that these findings

contradict       Finding         of    Fact       13     and       demonstrate     Defendant’s

willful violation of 29 C.F.R. § 1910.133.

    However, it does not follow from these facts that it was
                                           -13-
Defendant’s       deliberate        purpose    to     avoid    its   obligation        to

provide       Plaintiff   with      appropriate       eye   protection.           Indeed,

Defendant      could    have    believed,      even    mistakenly,        that    utility

mechanics exposed to welding light                    did not require the same

level    of    eye    protection     that     Defendant      afforded     to     welders.

Finding of Fact 13 supports this inference, stating that “Mr.

Outlaw    believed      that    Defendant      provided       Plaintiff     and    other

employees       the    appropriate        protective        gear.”        Accordingly,

because there is insufficient evidence to establish that it was

Defendant’s deliberate purpose to avoid its obligation under 29

C.F.R.    §     1910.133,      we   hold    that      Conclusion     of    Law    10   is

supported by the Full Commission’s findings of fact.

                                    IV.    Conclusion

    For the foregoing reasons, we affirm the opinion and award

of the Industrial Commission denying Plaintiff’s claim for a ten

percent increase in compensation pursuant to N.C. Gen. Stat. §

97-12.

    Affirmed.

    Judges HUNTER, Robert C., and CALABRIA concur.

    Report per rule 30(e).
