Opinion
I.C. No. 350854
Filed 10 April 1996
This case was reviewed by the Full Commission on 22 March 1996 upon the appeal of plaintiff from an Opinion and Award filed on 11 July 1995 by former Deputy Commissioner Tamara R. Nance who heard this matter on 3 August 1994.
APPEARANCES
Plaintiff: Pro se. Waived oral argument before the Full Commission.
Law Offices of David Gantt, Attorney, Asheville, North Carolina; former Counsel of Record.
Defendants: Russell and King, Attorneys, Asheville, North Carolina; Sandra King, Counsel of Record.
McGuire, Wood Bissette, Attorneys, Asheville, North Carolina; Joseph P. McGuire, former Counsel of Record.
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The undersigned have reviewed the prior Opinion and Award based upon the record of the proceedings before former Deputy Commissioner Tamara R. Nance. The appealing party has not shown good ground to reconsider the evidence; receive further evidence; rehear the parties or their representatives; or amend the Opinion and Award.
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The Full Commission finds as fact and concludes as matters of law the following, which were entered into by the parties as:
STIPULATIONS
1. The parties are subject to and bound by the provisions of the Workers' Compensation Act.
2. The employer-employee relationship existed between plaintiff and defendant.
3. Defendant was a qualified self-insurer.
4. Plaintiff's average weekly wage was $395.60.
5. The date of alleged injury was 28 May 1993.
6. The depositions of Drs. Maxwell, Guthrie, and Maloney are made a part of the evidentiary record in this case.
7. Plaintiff's deposition and medical records are made a part of the evidentiary record in this case.
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The Full Commission adopts the findings of fact found by the former Deputy Commissioner as follows:
FINDINGS OF FACT
1. Plaintiff, who is 51 years old, was employed by defendant as a JIT operator from 31 May 1988 to 7 June 1993. As a JIT operator, plaintiff pulled orders of small parts weighing 2 to 6 pounds.
2. In May 1993 plaintiff knew and understood that she was to immediately report any injury she sustained on the job. When she sustained an injury at work in 1991 she immediately reported it.
3. On 28 May 1993 plaintiff did not report an injury occurring at work to her supervisor and did not make an effort to locate her supervisor to report an injury.
4. On 1 June 1993 plaintiff told her supervisor that she had hurt her back and leg, but she specifically did not tell him that she had hurt herself at work.
5. On 7 June 1993 plaintiff was seen by the company doctor complaining of low back pain for the last month and left leg pain for the last week. Plaintiff denied any specific injury.
6. On 8 June 1993 plaintiff called defendant's human resource administrator Alana DeBruhl to report that she had seen the company doctor the day before due to her back pain and would not be able to come to work on the 8th. Plaintiff advised DeBruhl that her back had been bothering her for three to four weeks and that she did not know how she hurt it.
7. Plaintiff told Dr. Guthrie that she hurt her back at work on 2 June 1993 and that her back had bothered her for one month prior to that day.
8. Plaintiff described to the physical therapist the gradual onset of back pain over at least a month.
9. It was not until she was hospitalized for her back pain that Plaintiff reported an on-the-job injury to defendant.
10. Plaintiff testified that she did not report an injury occurring on 28 May 1993 because she had already taken off too much time when her daughter had her baby. Yet, regardless of how she reported her back problem she still had to take time off from work. Given that, it would seem that she would have reported the injury at work at least as of 8 June 1993 when she first had to go out of work.
11. Plaintiff did not sustain an injury by accident or a specific traumatic incident arising out of and in the course of her employment with defendant on 28 May 1993.
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Based upon the findings of fact, the Full Commission concludes as follows:
CONCLUSION OF LAW
Plaintiff is not entitled to benefits under the Workers' Compensation Act because she did not sustain an injury by accident arising out of and in the course of her employment with defendant on 28 May 1993 as claimed. N.C. Gen. Stat. 97-2 (6).
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Based on the foregoing findings of fact and conclusions of law, the Full Commission affirms the holding of the Deputy Commissioner and enters the following:
ORDER
1. Plaintiff's claim is hereby, and the same shall be, Denied.
2. Each side shall pay its own costs.
S/ _________________________ DIANNE C. SELLERS COMMISSIONER
CONCURRING:
S/ _________________________ THOMAS J. BOLCH COMMISSIONER
S/ _________________________ COY M. VANCE COMMISSIONER
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