An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d    u   r   e   .




                                 NO. COA13-651

                      NORTH CAROLINA COURT OF APPEALS

                             Filed:      1 April 2014


BRETT ALLSBROOK,
Employee,
Plaintiff

      v.                                    From The North Carolina
                                            Industrial Commission
                                            I.C. No. W13767
ILLINOIS TOOL WORKS/WILSONART,
Employer,

BROADSPIRE,
Carrier,
Defendants


      Appeal    by   plaintiff    from    opinion   and   award    entered    22

October 2012 by the North Carolina Industrial Commission.                 Heard

in the Court of Appeals 6 November 2013.


      Brett M. Allsbrook, pro se, for plaintiff-appellant.

      Hedrick Gardner Kincheloe & Garofalo, LLP, by M.                    Duane
      Jones and Elias W. Admassu, for defendants-appellees.


      DAVIS, Judge.


      Brett Allsbrook (“Plaintiff”) appeals from the Opinion and

Award of the North Carolina Industrial Commission (“the Full
                                           -2-


Commission”     or      “the        Commission”)          denying      his   workers’

compensation     claim         against         Illinois      Tool     Works/Wilsonart

(“Defendant”).       On appeal, Plaintiff primarily argues that the

Commission failed to make sufficient findings of fact to support

its determination that his injury was not a compensable injury

by accident.     After careful review, we affirm the Commission’s

opinion and award.

                                Factual Background

       At the time of the hearing, Plaintiff was 52 years old.                       In

November 2000, Plaintiff was hired by Defendant - a manufacturer

of high-pressure decorative laminate and backer boards - as a

packer, and in February 2008, he was reassigned to the position

of saw helper.         He continued to work in that position until

February 2009.         As a saw helper, Plaintiff’s responsibilities

included     working     in    the    finishing          area   and   assisting    saw

operators in cutting material to specific measurements.                           While

working for Defendant, Plaintiff used two different saws to cut

laminate and backer boards, a Schelling saw and a Mereen-Johnson

saw.

       The   Schelling        saw    is    a     newer    saw   and     is   computer-

controlled, allowing employees to load the laminate while the

saw    automatically     pushes      and       pulls   the   laminate    through   the

machine to make the appropriate cuts.                    The Mereen-Johnson saw is

an older saw that requires more physical force by the operator
                                   -3-


than the Schelling saw and is used as a back-up to the Schelling

saw.     The Mereen-Johnson saw uses air pressure to help guide the

laminate and backer boards through the cutting process.               When

using the Mereen-Johnson saw, two employees load the laminate or

backer board and then push it to other employees who guide the

laminate or backer board through the cutting process.            After the

cutting process is complete, an employee pushes the material to

other employees who unload the material from the saw.

       On 26 February 2009, Plaintiff was working with several

other employees to cut five foot by ten foot by one inch backer

boards with the Mereen-Johnson saw.           In order to achieve the

necessary cuts, two employees would pull the backer board onto

the air table, cut the ends, and then push the backer board to

Plaintiff.     Plaintiff would then rearrange the backer board to

cut the other end and push the backer board down the air table

to other employees, who would then remove it from the waist-high

air table.     Plaintiff alleges that near the end of his shift on

26 February 2009, he was bent at the waist at approximately a

90-degree angle using the Mereen-Johnson saw, when he felt a pop

in his chest.

       On 27 March 2009, Plaintiff gave a recorded statement to

Mollie    Murphy,   a   representative   of   his   employer’s    workers’

compensation carrier.      In this recorded statement, he stated the

following, as captured in the Commission’s finding of fact 7:
                                    -4-


           Plaintiff indicated “We put in full size
           laminate which could be as large as 5 foot
           by 12 foot.”      Plaintiff further indicated
           that at the time of the alleged accident he
           was working on the Mereen-Johnson saw and
           that he had worked on that saw prior to
           February 26, 2009.         When asked by Ms.
           Murphy, “Marine [sic] Johnson though has
           been in operation still and there are
           occasions that you work on it just like you
           work on the um . . . the newer model?”
           Plaintiff responded in the affirmative.
           Plaintiff indicated that boards he was
           working with at the time of the alleged
           accident measured 5 feet by 8 to 10 feet,
           less   than   the    maximum    size Plaintiff
           indicated   he     worked     with.  Plaintiff
           described the angle at which he pushed
           boards   on   the     Mereen-Johnson  saw   as
           “awkward” in that he ended up leaning at
           almost a 90 degree angle due to the height
           of the table. However, this was the method
           Plaintiff normally used when pushing boards,
           and he stated with respect to the push in
           question that it was a normal push for him
           and that it was not uneven or any harder
           than he typically pushed.

    After being treated by his employer’s physician, Plaintiff

sought treatment from Dr. Werner C. Brooks (“Dr. Brooks”), a

board-certified orthopedic surgeon, on 11 March 2009.          Plaintiff

received   treatment   for   A.C.   joint   and   sternoclavicular   joint

strains and was ultimately diagnosed with a labral tear.             On 22

May 2009, Dr. Brooks performed a right shoulder arthroscopy,

acromioplasty, distal clavicectomy, and labral tendon repair on

Plaintiff.

    Plaintiff continued to complain of problems with his right

shoulder and sternoclavicular joint following his treatment with
                                            -5-


Dr. Brooks.         On 27 July 2011, another orthopedic surgeon, Dr.

Christopher L. Elder (“Dr. Elder”), examined Plaintiff.                                    Dr.

Elder diagnosed Plaintiff with chronic “right shoulder pain and

mechanical symptoms status post arthroscopy with a labral repair

and subachromial decompression, distal clavicle excision” and

“continued right S.C. joint pain, swelling, and instability with

manageable     symptoms.”            Dr.     Elder        was   also      concerned       that

Plaintiff had a recurrent labral tear and scheduled a right

shoulder arthroscopy for 9 September 2011 in order to make a

diagnosis.          Dr.    Elder     opined        that     Plaintiff’s         S.C.    joint

symptoms were related to his initial injury in February 2009 and

that his current symptoms were related to the shoulder surgery

performed by Dr. Brooks.              Plaintiff has not worked for Defendant

since April 2009.

    On    14    June       2011,      a     hearing       was     held    before       Deputy

Commissioner Keisha M. Lovelace.                    On 29 March 2012, the deputy

commissioner entered an opinion and award denying Plaintiff’s

claim.    Plaintiff appealed to the Full Commission on 19 June

2012.     On   22    October        2012,    the    Full    Commission          entered    its

opinion and award affirming the deputy commissioner’s decision.

Plaintiff appealed the Commission’s decision to this Court.

                                          Analysis

    Our    review         of   an    Opinion       and    Award      by   the    Industrial

Commission     is    “limited       to    consideration         of    whether     competent
                                            -6-


evidence supports the Commission’s findings of fact and whether

the    findings    support     the        Commission’s       conclusions       of   law.”

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

669 S.E.2d 582, 584 (2008).                 With regard to the Commission’s

findings of fact, this Court’s “duty goes no further than to

determine whether the record contains any evidence tending to

support the finding[s].”              Id.         (citation and quotation marks

omitted).      The    findings       of    fact     made    by   the   Commission     are

conclusive on appeal if supported by competent evidence even if

there is also evidence that would support a contrary finding.

Nale v. Ethan Allen, 199 N.C. App. 511, 514, 682 S.E.2d 231,

234, disc. review denied, 363 N.C. 745, 688 S.E.2d 454 (2009).

The Commission’s conclusions of law, however, are reviewed de

novo.     Gregory v. W.A. Brown & Sons, ___ N.C. App. ___, ___, 713

S.E.2d 68, 74, disc. review denied, ___ N.C. ___, 719 S.E.2d 26

(2011).

       A plaintiff is entitled to compensation for an injury under

the Workers’ Compensation Act “only if (1) it is caused by an

accident, and (2) the accident arises out of and in the course

of    employment.”         Pitillo    v.     N.C.    Dep’t       of   Envtl.   Health   &

Natural    Res.,     151   N.C.   App.       641,    645,    566      S.E.2d   807,   811

(2002).     The plaintiff bears the burden of proving both elements

of the claim.        Morrison v. Burlington Indus., 304 N.C. 1, 13,

282 S.E.2d 458, 467 (1981).                Here, neither party disputes that
                                        -7-


Plaintiff’s    injury   arose     out    of    and    in   the    course    of    his

employment.       Rather,   the    sole       issue   on   appeal     is    whether

Plaintiff’s injury occurred as a result of an “accident” within

the meaning of the Workers’ Compensation Act.

     The terms “accident” and “injury” are separate and distinct

concepts.     Gray v. RDU Airport Auth., 203 N.C. App. 521, 525,

692 S.E.2d 170, 174 (2010).             An accident is “‘an unlooked for

and untoward event which is not expected or designed by the

person   who      suffers   the      injury,’”         that      involves     “‘the

interruption of the routine of work and the introduction thereby

of   unusual      conditions      likely       to     result     in      unexpected

consequences.’”         Calderwood       v.    Charlotte-Mecklenberg          Hosp.

Auth., 135 N.C. App. 112, 115, 519 S.E.2d 61, 63 (1999) (quoting

Adams v. Burlington Indus., 61 N.C. App. 258, 260, 300 S.E.2d

455, 456 (1983)), disc. review denied, 351 N.C. 351, 543 S.E.2d

124 (2000).

     “If an employee is injured while carrying on usual tasks in

the usual way the injury does not arise by accident.”                    Gunter v.

Dayco Corp., 317 N.C. 670, 673, 346 S.E.2d 395, 397 (1986).

However, “when an interruption of the employee’s normal work

routine occurs, introducing unusual conditions likely to result

in   unexpected     consequences,        an    accidental        cause     will    be

inferred.      The essence of an accident is its unusualness and

unexpectedness . . . .”         Gray, 203 N.C. App. at 525, 692 S.E.2d
                               -8-


at 174 (2010) (internal citation and quotation marks omitted).

In addition, “once 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).

    Among the findings of fact made by the Commission were the

following:


         3. As a saw helper, Plaintiff worked in the
         finishing area assisting saw operators in
         cutting material to specific measurements.
         Defendant-Employer uses two different saws
         to cut laminate and backer boards, a
         Schelling saw and a Mereen-Johnson saw.

         . . . .

         5. The Mereen-Johnson saw is an older saw
         than the Schelling saw. Cutting materials
         with   the   Mereen-Johnson   saw  is   more
         physically demanding than with the Schelling
         saw.   The   Mereen-Johnson  saw  uses   air
         pressure to help guide the laminate and
         backer boards through the cutting process,
         however, the saw operators and saw helpers
         have to use more effort to push and pull the
         material through the Mereen-Johnson saw.
         Defendant-Employer cuts 5 foot by 10 foot
         pieces of laminate weighing approximately 18
         to 19 pounds and 5 foot by 10 foot pieces of
         backer board weighing at least 100 pounds
         and up to approximately 400 pounds. When
         using the Mereen-Johnson saw, two employees
         load the laminate or backer board, and then
         push it to other employees who guide the
         laminate or backer board through the cutting
                    -9-


process.   After  the   cutting  process  is
complete, an employee pushes the material to
other employees who unload the material from
the saw. The Mereen-Johnson saw is used as a
"back-up" saw to help in times of heavy
work-loads or to cut backer boards and other
items not requiring the same level of
precision and accuracy as laminate.

6. On February 26, 2009, Plaintiff was
working with several other employees to cut
5 foot by 10 foot by 1 inch thick backer
boards on the Mereen-Johnson saw. In order
to achieve the necessary cuts, two employees
pulled the backer board onto the air table,
cut the ends or sides, and then pushed the
backer board to Plaintiff. Plaintiff then
rearranged the backer board to cut the other
end and then pushed the backer board down
the air table to other employees who removed
it from the air table and placed it on a
pallet. To push the backer board after
making his cuts, Plaintiff would lean over
the air table, which was waist-high, bend at
approximately a 90 degree angle, and push
the backer board. Plaintiff alleges that,
while pushing a board near the end of his
shift on February 26, 2009, he felt a pop in
his chest.

7. On March 27, 2009, Plaintiff gave a
recorded statement to Mollie Murphy from
Defendant-Carrier.   When   describing   his
position to Ms. Murphy, Plaintiff indicated
"We put in full size laminate which could be
as large as 5 foot by 12 foot." Plaintiff
further indicated that at the time of the
alleged accident he was working on the
Mereen-Johnson saw and that he had worked on
that saw prior to February 26, 2009. When
asked by Ms. Murphy, "Marine (sic) Johnson
though has been in operation still and there
are occasions that you work on it just like
you work on the um...the newer model?"
Plaintiff responded in the affirmative.
Plaintiff indicated that boards he was
working with at the time of the alleged
                    -10-


accident measured 5 feet by 8 to 10 feet,
less   than   the    maximum   size  Plaintiff
indicated   he     worked    with.   Plaintiff
described the angle at which he pushed
boards   on   the     Mereen-Johnson  saw   as
"awkward" in that he ended up leaning at
almost a 90 degree angle due to the height
of the table. However, this was the method
Plaintiff normally used when pushing boards,
and he stated with respect to the push in
question that it was a normal push for him
and that it was not uneven or any harder
than he typically pushed. Relative to the
circumstances     surrounding    his   alleged
accident, Plaintiff went on to state, "So um
again nothing out of the ordinary."

8. Plaintiff testified at the hearing before
the Deputy Commissioner that at the time the
alleged accident occurred, he pushed the
backer board in the same manner he normally
did when working on the Mereen-Johnson saw.
Plaintiff contended, however, that he did
not use the Mereen-Johnson saw on a regular
basis, and that at times the saw went unused
for months at a time.

9. Plaintiff's testimony about the frequency
with which the Mereen-Johnson saw was used
is in direct contradiction to the testimony
of Harold Whitted and Charles Dennis Clark.
Mr. Whitted is Plaintiff's former supervisor
and no longer works for Defendant-Employer.
He testified that using the Mereen-Johnson
saw in the manner Plaintiff testified he did
on February 26, 2009 was a normal job duty
for an employee in Plaintiff's position. Mr.
Clark, who is currently the manager for
Defendant-Employer's Fletcher facility, was
previously the manager of the pressing
department, which included the finishing
area where Plaintiff worked. He testified
that Plaintiff used both the Schelling saw
and the Mereen-Johnson saw on a regular
basis,   and   that  the   duties  Plaintiff
testified he was performing at the time he
was injured were consistent with Plaintiff's
                                -11-


         normal job duties.

         . . . .

         15. The Full Commission gives greater weight
         to the testimony of Mr. Whitted and Mr.
         Clark    and    finds,     based  upon   the
         preponderance of the evidence in view of the
         entire record that, at the time his injury
         occurred on February 26, 2009, Plaintiff was
         working with other employees to cut material
         which was consistent in size with the
         materials with which he normally worked.
         Plaintiff's   use,   along   with the  other
         employees, of the Mereen-Johnson saw was
         also not unusual, nor was the manner in
         which he pushed the board any different from
         the manner in which Plaintiff typically
         pushed boards when working on the Mereen-
         Johnson saw. As such, the Full Commission
         finds that Plaintiff was engaged in his work
         duties in his usual and . . . customary
         manner, and there was no interruption of his
         normal work routine likely to result in
         unexpected consequences.

    Based on these factual findings, the Commission issued the

following conclusions of law:

         1.   Under   the   North  Carolina   Workers’
         Compensation Act, an injury arising out of
         and   in   the   course  of   employment   is
         compensable only if it is caused by an
         “accident” and the claimant bears the burden
         of proving an accident has occurred. An
         accident is an unlooked for and untoward
         event which is not expected or designed by
         the person who suffers the injury. An
         accident therefore involves the interruption
         of the routine of work and the introduction
         thereby of unusual conditions likely to
         result in unexpected consequences.

         2.   In the instant case, Plaintiff has
         failed to establish that he sustained an
         injury by accident within the meaning of the
                                   -12-


            Act on February 26, 2009. N.C. Gen. Stat. §
            97-2(6).   Plaintiff    was   performing   his
            regular job in his normal, usual manner at
            the time of the injury.     Although Plaintiff
            may have assumed an awkward body position
            when pushing the heavy board, the position,
            and the size of the board were not unusual,
            nor was the use of the Mereen-Johnson saw to
            cut the board.      Plaintiff had previously
            worked with materials of the same size, as
            evidenced by his recorded statement, and,
            per his statement, there was nothing unusual
            about the push he made at the time he felt
            the pop and the body position resulting from
            the push saw was the body position he
            normally assumed when pushing boards on the
            Mereen-Johnson saw.

    As a result of these findings of fact and conclusions of

law, the Commission ultimately determined that ”Plaintiff failed

to establish that he sustained an injury by accident within the

meaning of the [Workers’ Compensation] Act.”

    In arguing for the reversal of the Commission’s decision,

Plaintiff    claims   there   is    “no   evidence”   supporting   the

Commission’s finding that Plaintiff was not injured by accident

and that he was instead carrying out his regular job duties in

his usual manner.     Plaintiff attempts to discredit the testimony

of Mr. Harold Whitted (“Mr. Whitted”) and Mr. Dennis Clark (“Mr.

Clark”), both of whom testified that the use of the Mereen-

Johnson saw in the manner described by Plaintiff was a normal

job duty for him, by citing the witnesses’ failure to produce a

log book regarding the number of hours and number of times the
                                     -13-


Mereen–Johnson    saw   was   used    in    order   to   corroborate   their

testimony.

      In making this argument, Plaintiff asks us to substitute

our own views of the witnesses’ credibility for those of the

Commission.      This we cannot do.         Our Supreme Court has made

clear that:

          (1) the Full Commission is sole judge of the
          weight and credibility of the evidence, and
          (2) appellate courts reviewing Commission
          decisions are limited to reviewing whether
          any   competent    evidence   supports   the
          Commission’s findings of fact and whether
          the    findings   of    fact   support   the
          Commission’s conclusions of law.

Deese v. Champion Int’l Corp., 352 N.C. 109, 116, 530 S.E.2d

549, 553 (2000).

      Moreover, when    making determinations        on credibility, the

Industrial Commission is not obligated to explain why it deemed

certain evidence credible or not credible.               Id.   This is so

because

          [r]equiring the Commission to explain its
          credibility determinations and allowing the
          Court of Appeals to review the Commission’s
          explanation     of     those      credibility
          determinations would be inconsistent with
          our   legal   system’s  tradition    of   not
          requiring the fact finder to explain why he
          or she believes one witness over another or
          believes one piece of evidence is more
          credible than another.

Id.
                                -14-


    Here, the Commission’s findings of fact make clear that it

deemed Mr. Whitted’s and Mr. Clark’s testimony to be credible.

In finding of fact 15, the Commission stated:

         15. The Full Commission gives greater weight
         to the testimony of Mr. Whitted and Mr.
         Clark    and    finds,     based  upon   the
         preponderance of the evidence in view of the
         entire record that, at the time his injury
         occurred on February 26, 2009, Plaintiff was
         working with other employees to cut material
         which was consistent in size with the
         materials with which he normally worked.
         Plaintiff's   use,   along   with the  other
         employees, of the Mereen-Johnson saw was
         also not unusual, nor was the manner in
         which he pushed the board any different from
         the manner in which Plaintiff typically
         pushed boards when working on the Mereen-
         Johnson saw. As such, the Full Commission
         finds that Plaintiff was engaged in his work
         duties in his usual and . . . customary
         manner, and there was no interruption of his
         normal work routine likely to result in
         unexpected consequences.

    Competent   evidence   supports    this   finding.   Mr.   Whitted,

Plaintiff’s former supervisor, testified that any employees who

worked with the saws “could work on either saw at you know,

given times.”   He also responded affirmatively when asked if

both saws were rotated in their use by Plaintiff’s department.

Mr. Whitted explained that

         [t]he initial saw crew . . . could be asked
         to work on either saw. Primarily the
         Schelling saw, that was our primary saw, but
         depending on what needed to be cut or if we
         needed assistance from other people, then
         we’d try to split the saw personnel up to
         work with the less experienced people, and
                                         -15-


             so they could work on either saw at, you
             know, given times.

     Similarly, Mr. Clark, the manager of the Fletcher facility,

also testified in the affirmative when asked if he agreed that

both the “Schelling and the Mereen-Johnson saws were used on a

regular basis by the staff, including Plaintiff.”                       Mr. Clark

further testified that both the physical activity of “pushing

and pulling” and the use of both saws was consistent with what

the “normal job involved for [Plaintiff] and other people in

that department.”

     This     testimony    by     Mr.    Whitted    and   Mr.   Clark   serves    as

competent     evidence     that     directly       supports     the   Commission’s

finding      that,    at   the    time    of    the   injury,     Plaintiff      was

performing his work duties in his usual and customary manner.

This,   in    turn,   supports     the    Commission’s     ultimate     conclusion

that Plaintiff failed to show that he sustained an injury by

accident within the meaning of the Workers’ Compensation Act.

     Plaintiff also contends that his statements that he had

worked on the Mereen-Johnson saw previously did not establish

any “regularity” and that the Commission erred in finding that

this was part of his normal job duties.                       However, Plaintiff

admits in his brief that “it is clear from the preponderance of

the evidence that [he] had previously worked on the                        Mereen-
                               -16-


Johnson saw.”   This admission by Plaintiff simply adds to the

competent evidence supporting the Commission’s determination.

                             Conclusion

    For the reasons stated above, the Opinion and Award of the

Full Commission is affirmed.

    AFFIRMED.

    Judges ELMORE and McCULLOUGH concur.

    Report per Rule 30(e).
