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Fish v. Steelcase Inc.11/1/1994
ed by hearing the date April 17 mentioned at the hearing. He had earlier identified the date as April 17, because this happened on a Tuesday and it was two or three days before plaintiff told him he was seeking a doctor. April 17, 1989 was a Monday. Plaintiff saw his doctor April 24. Laughter's testimony is insufficient to support a finding that the incident occurred on April 17.
8. Plaintiff visited defendant's plant nurse May 22, 1989 with the same complaints he had mentioned to Dr. Morrison. She noted his back condition had been "present for one plus month", which would be consistent with an onset of pain during the period plaintiff had described to Dr. Morrison.
15. Plaintiff's Form 18, prepared by his girl friend, dated June 10, 1989, and filed with the Industrial Commission June 15, listed April 17, 1989 as the date of his allegedly compensable injury . This was the first written notice of his claimed injury. He stated his disability began May 24. On the indemnifying agreement on May 31, he stated that his disability began "about a month ago".
16. Dr. Harley's record of examination May 30 stated: "This 28 year old man was working at Steel Case approximately a month ago (i.e., the beginning of May), pushed a desk and developed pain in the lower right back into his right leg".
17. On August 2, 1989, plaintiff told defendant carrier's adjuster that the [ sic ] after the desk pushing incident, which ruptured a disc, the pain got worse and worse. This was about five or six weeks after he pushed the desk. If May 20 is the date on which the possibility of a disc was first apparent, and the pain got worse, the pushing episode could have occurred between April 8 and April 15.
19. There is no indication how plaintiff finally established April 17 as the day he pushed the desk, other than talking to Laughter and Bass. Laughter was confused about the date involved.
21. Plaintiff's accident, if one occurred, came while he was engaged in his normal work routine of pushing desks. It did not involve any departure from his ordinary duties.
22. In view of the variety of reports plaintiff gave, as to the date he pushed the desk with disabling consequences, prior to his decision to claim workers' compensation, his claim and later testimony that April 17, 1989 was the date cannot be accepted as credible. Accordingly he has not sustained his burden of establishing that his injury occurred at a cognizable, i.e., a judicially determinable time.
The Deputy Commissioner concluded:
1. Plaintiff did not sustain an injury by accident arising out of and in the course of his employment, G.S. 97-2(6), as there was no accident involved. To prove that an accident occurred, plaintiff must show that he was affected by unusual and unexpected circumstances constituting a departure from his normal work routine . . . .
2. In the case of a back injury , under G.S. 97-2(6) as amended, plaintiff must show that his injury arose out of a specific traumatic incident, which has been judicially interpreted to mean that the injury must have occurred at a cognizable time, that is, at a judicially determinable time, and did not develop gradually. . . . Here, by the plaintiff's own contemporaneous accounts, the incident could have occurred at any time between April 8 and the beginning of May, and the onset of his pain was gradual.
3. Plaintiff has satisfied neither of the two alternate requirements needed to support a finding that his back injury occurred by accident. G.S. 97-2(6).
Plaintiff appealed to the Full Commission, which, on 23 Jul
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