An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1317
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 17 June 2014


T. VAN LARRIMORE, Employee,
     Plaintiff

      v.                                      North Carolina
                                              Industrial Commission
                                              I.C. No. 458055
DILLARD, INC., Employer, ESIS,
Carrier,
     Defendants.


      Appeal by Defendants from opinion and award entered 26 June

2013 by the North Carolina Industrial Commission.                   Heard in the

Court of Appeals 10 April 2014.


      Sellers, Hinshaw, Ayers, Dortch & Lyons, P.A., by John F.
      Ayers, III, of Counsel, for Plaintiff.

      Hedrick Gardner Kincheloe & Garofalo, LLP, by Paul C.
      Lawrence, M. Duane Jones, and Adebola V. Lamikanra, for
      Defendants.


      DILLON, Judge.


      Defendants Dillard, Inc. (Dillard) and ESIS appeal from an

opinion and award of the North Carolina Industrial Commission

(Commission) in which, pursuant to N.C. Gen. Stat. § 97-12, the

Commission increased T. Van Larrimore’s (Plaintiff’s) workers’
                                                -2-
compensation        benefits         by        ten    percent,       for     a    previously

determined        compensable         injury,         due     to     Dillard’s      “willful

failure” to comply with various statutory safety regulations.

For the following reasons, we reverse.

                        I. Factual & Procedural Background

      The       record    evidence        as    presented      before      the    Commission

tended     to    show    the   following.             Plaintiff      was    employed      as    a

clothing salesman at the Dillard’s retail location in Pineville,

North      Carolina.           The        store’s      escalators          were    generally

inoperative prior to the time the store opened to the public;

until that time, Plaintiff and other Dillard employees simply

walked up and down the stairs of the immobile escalators.

      On     20     August      2004,          Plaintiff       arrived       at     work       at

approximately 8:40 a.m., prior to the store’s scheduled opening

that day at 10:00 a.m.               On that particular morning, a pit cover

had   been      removed    from      the    bottom      of    one    of    the    escalators,

exposing a hole that spanned the width of an escalator stair and

was more than four feet deep.                         Dillard had not notified its

employees       that     maintenance       work       was    being   performed       in    that

area; nor were           there any safety barriers, cones, or warning

signs to demarcate the exposed pit.                          When Plaintiff descended

the aforementioned escalator, he failed to notice the exposed
                                              -3-
pit,   fell   into    it,       and   was     knocked      unconscious.        Plaintiff

resultantly sustained serious injury to his left leg, ribs, and

elbow.      Security camera footage later revealed that a nearby

maintenance worker was present on the scene, but had turned his

back to speak with another individual and thus failed to warn

Plaintiff of the exposed pit.

       Defendants     conceded          the      compensability        of    Plaintiff’s

injuries,     and    Plaintiff        has     been     receiving      temporary     total

disability     benefits         since       27      July   2006.        Plaintiff    has

experienced increasing medical and psychological problems and

has not worked at all since 2 May 2007.                             On 29 July 2011,

Plaintiff filed a request for a “10% penalty on [his] claim due

to [Dillard’s] failure to provide safety barriers around the

escalator shaft that [he] fell into.”                         By opinion and award

entered 26 June 2013, the Commission awarded Plaintiff “a ten

percent     increase       on     [Plaintiff’s]            weekly     temporary     total

disability compensation” pursuant to N.C. Gen. Stat. § 97-12 in

light of its determination that Dillard had “willfully” failed

to   comply   with     a    number      of       Occupational       Safety   and   Health

Administration (OSHA) regulations.                    From this opinion and award,

Defendants appeal.

                                      II. Analysis
                                            -4-
     In     accordance        with    our    standard     of     review,       we    must

determine whether competence evidence supports the Commission’s

findings    of    fact      and    whether    such    findings,       in   turn,     are

sufficient       to    support     the    Commission’s    conclusions           of   law.

Legette v. Scotland Mem’l Hosp., 181 N.C. App. 437, 442, 640

S.E.2d     744,       748   (2007).       Findings     supported      by       competent

evidence are binding on appeal, “even if the evidence might also

support contrary findings.               The Commission’s conclusions of law

are reviewable de novo.”                 Id. at 442-43, 640 S.E.2d at 748

(citations omitted).

     Defendants contend that the Commission erred in increasing

Plaintiff’s       workers’        compensation       benefits    by      ten     percent

pursuant to N.C. Gen. Stat. § 97-12.                 We agree.

     N.C. Gen. Stat. § 97-12 provides for a ten percent increase

in   workers’         compensation       benefits     where,     inter     alia,      the

claimant can prove that his injury was “caused by the willful

failure of the employer to comply with any statutory requirement

. . . .”     N.C. Gen. Stat. § 97-12 (2011) (emphasis added).                         “An

act is considered willful when there exists 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[,]”     Jenkins v. Easco Aluminum, 165 N.C. App. 86, 97, 598
                                          -5-
S.E.2d 252, 259 (2004) (citations and quotation marks omitted),

and   OSHA    regulations       constitute      “statutory     requirements”     for

purposes of N.C. Gen. Stat. § 97-12, Brown v. Kroger Co., 169

N.C. App. 312, 317-18, 610 S.E.2d 447, 451 (2005) (“[B]y virtue

of N.C. Gen. Stat. § 95–131(a), the requirements of 29 C.F.R.

1910.22(b)(1)     are     a    ‘statutory       requirement’    that    brings   [an

employee’s]      injury       and   [an   employer’s       subsequent]    citation

within the scope of N.C. Gen. Stat. § 97–12.”).

      Here,    the     Commission     concluded,      in    pertinent    part,    as

follows:

              4. There are multiple relevant [OSHA] safety
              regulations that apply to this claim under
              29   C.F.R.  §   1910.23(a),  including  the
              following sections:

              1910.23(a)(1)
              Every   stairway  floor  opening   shall  be
              guarded by a standard railing constructed in
              accordance with paragraph e . . . and shall
              be provided on all exposed sides (except at
              entrance to stairway).

              1910.23(a)(3)
              Every hatchway and chute floor opening shall
              be guarded by one of the following:

                     1910.23(a)(3)(i)
                     Hinged floor opening cover of standard
                     strength and construction equipped with
                     standard    railings   or    permanently
                     attached which leave only one side
                     exposed.   When the opening is not in
                     use, the cover shall be closed or the
                     exposed side shall be guarded.
                    -6-


1910.23(a)(5)
Every pit and trap door floor opening,
infrequently used, shall be guarded by a
floor opening cover of standard strength and
construction.   While the cover is not in
place, the pit or trap opening shall be
constantly attended by someone or shall be
protected on all exposed sides by removable
standard railings.

1910.23(a)(6)
Every manhole floor opening shall be guarded
by standard manhole cover which need not be
hinged in place. While the cover is not in
place,   the   manhole   opening   shall  be
constantly attended by someone or shall be
protected by removable standard railings.

1910.23(a)(7)
Every temporary floor opening shall have
standard railings, or shall be constantly
attended by someone.

1910.23(a)(8)
Every floor hole into which     persons can
accidentally  walk shall be     guarded  by
either:

    1910.23(a)(8)(i)
    A standard railing with standard      toe
    board on all exposed sides, or

    1910.23(a)(8)(ii)
    A floor hole cover of standard   strength
    and construction.   While the    cover is
    not in place, the floor hole     shall be
    constantly attended by someone   or shall
    be protected by a removable      standard
    railing.

The escalator pit into which Plaintiff fell
meets the definition of “[f]loor opening.”
29 C.F.R. §1910.21(a)(2). Several of the 29
                     -7-
C.F.R. §1910.23(a) safety regulations were
violated by [Dillard] on August 20, 2004[.]

. . . .

7. . . . [Dillard’s] failure to erect
warning barricades around and/or have an
employee constantly attend to a severely
hazardous open pit, in clear violation of 29
C.F.R. §1910.23(a), amounted to a deliberate
purpose not to discharge their statutory
duties and was therefore willful.          That
[Dillard] in the case at hand, during every
other episode of escalator or elevator
maintenance   had    erected    yellow   safety
barriers that are four feet tall blocking
the escalator entrances, which barriers
would have physically prevented plaintiff
from entering the escalator at all, further
establishes willfulness in this case, as in
Jenkins, because at the time of the accident
there existed known safety measures that
would    have    prevented    the     accident.
Furthermore, the evidence . . . establishes
that   the    unprotected,     unmarked,    and
unguarded nature of the severe hazard was
noticeable by many employees working in that
area of the first floor of [Dillard’s] store
on the morning of 20 August 2004, yet was
not corrected prior to plaintiff’s fall.
Finally,    [Dillard’s]     incident     report
indicated that the accident was caused by
“inadequate safety” measures, and, according
to the testimony of Mr. Chamochumbi [(a
long-time Dillard employee)], the erection
of barriers during the escalator maintenance
has continued to be a mandatory procedure.
. . .      [P]laintiff has established the
willful failure of [Dillard] to comply with
applicable OSHA regulations, and that this
willful failure was the proximate cause of
plaintiff’s injuries on 20 August 2004.
Plaintiff is therefore entitled to a 10%
increase   in  the    compensation   paid   and
                                           -8-
            payable to him in this case under the Act.

(Citations omitted).

    Defendants        admit   that    OSHA       violations     occurred       and   that

such violations resulted in Plaintiff’s injuries.                            Defendants

contend, however, that the OSHA violations were, at most, due to

negligence, and were not “willful” in nature.                         In Jenkins, 165

N.C. App. 86, 598 S.E.2d 252, a case upon which the Commission

relied in support of its decision, the plaintiff’s fingers were

crushed by a brake press machine that lacked the proper metal

guards.   Id. at 88, 598 S.E.2d at 254.                    This Court upheld the

Commission’s     determination         that       the    defendant-employer           had

willfully violated OSHA regulations – thereby warranting penalty

under N.C. Gen. Stat. § 97-12 – where the evidence supported the

Commission’s findings that the employer had failed to bring the

brake   press   machine       into    compliance        with    the    relevant      OSHA

standards “even though [the employer] had been informed by at

least one employee of problems with the [brake press] machine”

and further found that the employer “had knowledge through its

employees . . . that some [of the brake press] machines were

inadequately     guarded.”           Id.    at    97-98,       598    S.E.2d    at    259

(emphasis added).

    Here,       the     Commission         determined       that       the      evidence

“establishe[d]        that   the   unprotected,         unmarked,      and     unguarded
                                              -9-
nature of the severe hazard was noticeable by many employees

working in that area of the first floor of [Dillard’s] store on

the morning [of Plaintiff’s injury], yet was not corrected prior

to Plaintiff’s fall”; that                  “there existed known safety measures

that would have prevented the accident”; and that, aside from

the morning in question, Dillard had consistently implemented

safeguards          to     protect      against       such        accidents.          These

circumstances        stand      in    stark    contrast      to    those    presented     in

Jenkins, where the employer knew that its equipment was not in

compliance         with       the    OSHA     standards,      but     failed     to     take

appropriate steps to correct such deficiencies.                            In the present

case,       the    Commission        found     that   Dillard        had     stationed     a

maintenance         worker      at   the    exposed    pit,       thus   meeting      OSHA’s

standard      that       the   opening      “shall    be    constantly       attended    by

someone.”         29 C.F.R. § 1910.23(a)(7).               The Commission found that

the   maintenance         worker      had    failed   to     warn    Plaintiff     of    the

exposed pit, as he had diverted his attention away from the pit

to    speak       with    another     individual      at    the     precise    time     that

Plaintiff was descending the escalator stairs.                             These findings

do    not    support      a    conclusion      that   Plaintiff’s          injuries     were

caused by a willful failure on Dillard’s part to comply with the

relevant OSHA regulations; rather, these findings indicate that
                               -10-
Plaintiff’s   injuries   resulted   from   the   negligence   of   the

maintenance worker tasked with attending the hazardous area, a

duty which, if properly discharged, would have brought Dillard

into conformity with the OSHA regulations.       Accordingly, we hold

that the Commission’s conclusion that Dillard’s OSHA violations

were willful is unsupported by the Commission’s findings and,

therefore, that the Commission erred in penalizing Defendants

pursuant to N.C. Gen. Stat. § 97-12.

    In light of the foregoing, the Commission’s 26 June 2013

opinion and award is hereby

    REVERSED.

    Judges STROUD and HUNTER, JR. concur.

    Report per Rule 30(e).
