NC Court Construes State’s “Injury by Accident” Requirement

Construing N.C. Gen. Stat. § 97-2(6), which defines “injury” to mean “only injury by accident arising out of and in the course of the employment” [emphasis added], the Court of Appeals of North Carolina recently reversed a decision by the state’s Industrial Commission that had found a knee injury sustained by a physical therapy assistant (“PTA”) when she attempted to help a 6’4”, 300 pound patient stand was not compensable [Vance v. Laurels Healthcare Holdings, 2022-NCCOA-25, 2022 N.C. App. LEXIS 10 (Jan. 4, 2022)]. Finding the Commission’s decision that the PTA had failed to show she had sustained an injury by accident was unsupported by competent evidence, the Court stressed that the PTA had offered testimony that, because of the patient’s stature and weight, he was ordinarily a two-person lift, that the PTA had never lifted the patient by herself and, therefore, that there was no evidence that at the time of her injury the PTA was “performing her usual job duties in the usual manner” [Opinion p. 21].

NC Has Not Abandoned the “Accident” Requirement

As noted in Larson’s Workers’ Compensation Law, § 42.01, the requirement that the injury be “accidental” in character has been adopted either legislatively or judicially by the overwhelming majority of states. Most, however, have effectively abandoned the requirement, essentially providing compensation for virtually any injury (or disease) that arises out of and in the course of the employment. North Carolina still holds to the classic rule, however. The state’s Supreme Court has defined the term “injury by accident” as “an unlooked for and untoward event which is not expected or designed by the person who suffers the injury” [Hensley v. Farmers Federation Coop., 246 N.C. 274, 278, 98 S.E.2d 289, 292 (1957)].

Anecdotally, in North Carolina, the rule is that, generally speaking, if one is performing his or her normal job, in the normal way, at the time of the injury, the claim isn’t compensable. The thought process goes something like this: if one’s job is relatively strenuous and one is injured performing that relatively strenuous task, how could it be said to have occurred accidentally? Continuing that logic, it’s all fine and good to say that any injury that arises out of and in the course of the employment is compensable; only that isn’t what the statute provides. It requires the injury to be “by accident.”

Was Lifting the Patient an “Untoward Event?”

Note that in the instant case, the deputy commissioner found as fact, inter alia, that the PTA’s “work duties were interrupted through being required to lift [the patient] without the assistance of a second staff person and, in doing so, unexpectedly putting an unusual amount of strain on her left knee” [Opinion, p. 8]. The deputy commissioner stressed that while the PTS’s job duties normally required her to work with physically challenged patients, she did not normally lift 6’4”, 300-lb. patients without assistance.

The Commission, which in North Carolina is the ultimate fact-finder—not the deputy commissioner who hears the testimony of witnesses—disagreed. It concluded that “there was not any unlooked for or untoward event, nor was there any interruption of the work routine and the introduction thereby of unusual conditions likely to result in unexpected consequences” [Opinion, p. 9].

Appellate Court’s Decision

The appellate court said the Commission had erred. It relied upon two earlier decisions. In one of them, Porter v. Shelby Knit, Inc., 46 N.C. App. 22, 264 S.E.2d 360 (1980), the employee worked as a knitter, and her duties included pulling rods from rolls of cloth. At the time the employee injured her back, she was pulling a rod that she testified was unusually hard to remove, and she did not have assistance from anyone to pull it out as she normally did. Her testimony indicated the task was a usual part of her work, but the task did not normally rise to this level of difficulty. The Porter Court concluded the employee’s “extra exertion” to remove the rod was evidence of both unusual circumstances and an interruption of her normal work routine. There, the appellate court held that the Commission had been warranted in finding as a fact and concluding as a matter of law that plaintiff suffered an injury by accident.

Parenthetically, I might add that the employer in Porter was represented by a then 28-year-old attorney named Tom Robinson (he’s now almost 71). I had actually worked for a similar knitting company during the summer after my graduation from college. I argued, from experience, and from the employee’s own testimony, that it was often difficult to extract the rod from the roll of cloth and that, as had been admitted by Ms. Porter in her testimony, it wasn’t so much that some rods were more difficult to extract, it was that some were unusually easy.

The Court of Appeals did not buy my argument then, but it seems here to have bought a somewhat similar argument by the PTA. Important in Porter, stressed the Court of Appeals, was that my client had lost on a factual basis at the Commission level. Thus, I had a steep hill to climb. “The Commission is the fact-finder,” I can recall one of the judges reminding me during oral argument some 42 years ago now.

Here, however, the appellate court took an almost opposite tack. Notwithstanding that the Commission had factually determined that the PTA’s job routine had not been interrupted by an unusual circumstance, it held the PTA’s unassisted sit-to-stand transfer with a patient weighing approximately 300 pounds caused the PTA “extra exertion” [Opinion, p. 18], which constituted both an interruption of her work routine and an unusual circumstance—comme-ci comme-ça.