23003586.doc

NORTH CAROLINA INDUSTRIAL COMMISSION
I.C. NO. 23-003586, MARK SHELDON, Employee-Plaintiff, v. CAROLINA HOME MEDICAL, INC., Employer, and TRAVELERS, Carrier, Defendants.  

OPINION AND AWARD for the Full Commission by JAMES C. GILLEN, Commissioner.

FILED: 4 August 2025

This case was heard before the Full Commission on 13 November 2024 upon appeals of Plaintiff and Defendants from an Opinion and Award filed by Deputy Commissioner Wes Saunders on 21 June 2024.  The deposition transcript of Dr. John Spellman is part of the evidence of record.  
APPEARANCES
Plaintiff:	Kellum Law Firm, New Bern, North Carolina; Jennifer S. Boyer, appearing.

Defendants:	Hedrick Gardner Kincheloe & Garofalo LLP, Raleigh, North Carolina; Charles E. Vail, appearing.  

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	The Full Commission has reviewed the prior Opinion and Award based upon the record of the proceedings before Deputy Commissioner Saunders, both parties' Form 44 Application for Review, and the briefs and arguments of the parties.  The Full Commission hereby enters the following Opinion and Award pursuant to N.C. Gen. Stat. § 97-85:
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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
All parties are properly before the Commission, and the Commission has jurisdiction of the parties and of the subject matter. 
Plaintiff was an employee of Defendant-Employer, Carolina Home Medical, at all times relevant to this claim. 
Defendant-Employer regularly employed three or more employees and is bound by the provisions of the North Carolina Workers' Compensation Act. 
The North Carolina Industrial Commission has jurisdiction over the parties and all parties have been properly named in this action. 
Plaintiff has a claim with a date of injury of 18 January 2023.  Plaintiff's claim was denied via a Form 61 Denial of Workers' Compensation Claim filed on 3 February 2023, on the basis of "no injury by accident." 
Plaintiff provided timely verbal and written notice of his injury in writing to the employer. 
Plaintiff has undertaken medical treatment for his claimed injury, which has not been authorized by Defendants. 
Plaintiff has not received any indemnity compensation to date.  Subject to further stipulation, the average weekly wage will be determined by sufficient wage and attendance records. 
Subsequent to the Deputy Commissioner hearing, on 19 March 2024, the parties submitted Stipulated Exhibit 3, in which the parties agreed that at the time of Plaintiff's claimed date of injury of 18 January 2023, he had an average weekly wage of $1,163.80 with a corresponding compensation rate of $775.90. 

Also in Stipulated Exhibit 3, the parties agreed that Plaintiff was out of work for the following periods after his injury: 6.86 weeks - 10 October 2023 - 26 November 2023; and 2.86 weeks - 4 January 2024 - 23 January 2024.  Plaintiff alleges entitlement to temporary total disability during these periods out of work.

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The following documents were accepted into evidence by the Deputy Commissioner as: 
 EXHIBITS
Stipulated Exhibit #1: Executed Pre-Trial Agreement; 
Stipulated Exhibit #2: Indexed and paginated set of documents including Industrial Commission forms, medical records, and discovery; 
Stipulated Exhibit #3: Stipulation as to Plaintiff's average weekly wage and periods of  time Plaintiff was out of work; 
Stipulated Exhibit #4: Additional medical records;
Plaintiff's Exhibit #1: YouTube Video of Quickie Wheelchair (for illustrative purposes only) (https://www.youtube.com/watch?v=mE_P2DsRsnc); and
Defendant's Exhibit #1: Robert Watson Quickie Wheelchair Battery Training Certificate and Training Documents. 
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The Full Commission addresses the following: 
ISSUE

Whether Plaintiff sustained a compensable injury by accident on 18 January 2023?
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Based upon the preponderance of the evidence in view of the entire record, and reasonable inferences flowing therefrom, the Full Commission makes the following:
FINDINGS OF FACT
Plaintiff, who was fifty-six-years-old at the time of the hearing before the Deputy Commissioner, is employed by Carolina Home Medical Inc. (hereinafter "Defendant-Employer"), a supplier of rehabilitative and medical equipment and services throughout eastern North Carolina.
Plaintiff works in Defendant-Employer's rehabilitation department and covers the areas of Jacksonville, Morehead City, and New Bern.  Plaintiff's job title is Assistive Technology Professional (ATP).  In this position, Plaintiff has clinical, marketing, and sales responsibilities.  Additionally, Plaintiff is also required to perform mechanical service and maintenance tasks on the equipment he sells.  
Plaintiff has worked for Defendant-Employer for seven years, all as an ATP.  Plaintiff entered the industry in 2001 and, overall, has worked as an ATP for over 23 years.  
The mobility devices that Defendant-Employer sells are grouped into three classification groups.  The devices in groups two and three are powered wheelchairs. 
Plaintiff sells devices from only a few brands.  While each brand may offer many different models, Plaintiff typically steers his clients to only a few models out of the many available on the market.  Of the devices that fall in group two, Plaintiff has sold approximately three to four different models.  Of the devices that fall in group three, Plaintiff has sold approximately five to seven different models.  
Plaintiff's servicing role requires him to replace broken or damaged parts, to diagnose and repair electronic issues, and to replace batteries.  Defendant-Employer's Job Description lists "Perform routine preventive maintenance and simple repairs on rehab equipment as required; arrange for repair by manufacturer when necessary" among the ATP's responsibilities.
After an ATP for Defendant-Employer sells a device to a patient, that device remains on the ATP's active roster for servicing.  Plaintiff testified before the Deputy Commissioner that he has over 560 wheelchairs on his active roster.  
Plaintiff works with one other ATP, Robert Watson, who is also Plaintiff's supervisor.  Until approximately three years ago, the rehabilitation department had a technician who would service all the devices sold by Plaintiff and Mr. Watson.  However, after that technician left, Plaintiff and Mr. Watson began servicing their clients' group three devices.  
Defendant-Employer has regional branch offices with technicians who are available to service any group two devices that Plaintiff sells.  While Plaintiff may occasionally service a group two device, most of the devices that Plaintiff services are group three.  
Plaintiff testified that he performed, on average, one battery replacement per month on any type of power wheelchair.  Plaintiff explained that during some months he may perform three battery replacements, but that the average is one per month.  
Regarding battery replacement, Plaintiff testified: "[m]ost of the chairs that I deal with, the batteries either slide out the front or the back compartment."  Plaintiff further testified that the model chair involved in the incident in question "is the only model that I'm aware of where the seat flips back to open" and that he knew how to access the batteries on this particular model when he went on the service call.  He also testified that other chair models have different specific ways to access the batteries.  The Full Commission finds that battery access differs among the various power wheelchair models Plaintiff services.   
As an ATP, Plaintiff is required to complete a minimum of 20 hours of continuing education every two years.  Plaintiff's continuing education is predominantly online courses which provide instruction regarding servicing the various chairs that Plaintiff sells.  He testified that a lot of his training consists of courses presented by chair manufacturer Sunrise Medical.  
In the weeks leading up to 18 January 2023, Plaintiff was in contact with a patient regarding a faulty suspension spring in that patient's Quickie brand model 710 power wheelchair, which is a group three device manufactured by Sunrise Medical.  Plaintiff went to the patient's home and was able to find a workaround for Plaintiff's chair until a new spring could be delivered.  While Plaintiff was waiting for the new spring to be delivered, that chair's batteries began to malfunction.  
On 18 January 2023, Plaintiff went to the patient's home to install the new spring and new batteries.  On the Quickie model 710, the batteries are stored under the seat.  The seat on the Quickie 710 is attached at the back of the unit via a fulcrum.  The battery is removed by unlatching the seat and pivoting the seat backwards on a fulcrum to the floor.  Plaintiff testified:
 . . . most of the chairs I provide, the batteries will come out from the front of the chair.  This one the seat actually is attached to the back of the chair and you undo a couple of latches in the front and then the seat will tip back and the back of the chair will rest on the ground.  Then you pull the batteries from the top of the tray.  

According to the owner's manual for the Quickie QM-710, the batteries to the chair weigh a total of 90 pounds.  
On 18 January 2023, after Plaintiff installed new batteries, he moved to the back of the chair to pivot the seat upright.  As Plaintiff pivoted the seat upwards, near when he had the seat at an 80° angle, Plaintiff felt a clicking sensation in his left shoulder.  Plaintiff testified, "I walked around the chair and squatted down and . . . grabbed the back and kind of picked up on the back to rock it back over, and then that's when I heard the click sound in my shoulder."  Plaintiff testified that he was using proper lifting technique during this process. 
After the incident, Plaintiff experienced severe pain and began seeing stars.  After sitting for about 5-10 minutes, Plaintiff called Mr. Watson.  Mr. Watson instructed him to notify Syreeta Taylor in Defendant-Employer's human resources department.  Plaintiff talked to Ms. Taylor and informed her of the incident.  During the conversation the two decided that Plaintiff would see if the situation resolved overnight and he would call Ms. Taylor the next morning.  Plaintiff testified that he could not move his arm the next morning, 19 January 2023, and called Ms. Taylor. 
On 19 January 2023, Plaintiff was seen by Yvette Moleta, FNP at CCHC New Bern Family Practice and Urgent Care.  The medical record from this visit reflects Plaintiff's report of the incident: "[Plaintiff] states that yesterday he was lifting seat of a . . . chair and had sudden pain in his left shoulder and felt a pop" and subsequently experienced pain.  Plaintiff was diagnosed with shoulder pain, advised to take 1g of Tylenol with Oxycodone and 800 mgs of ibuprofen every eight hours, and advised to return on January 26.  Plaintiff was given work restrictions of no lifting with the left arm.   
On the morning of 20 January 2023, Plaintiff sent the following e-mail to Ms. Taylor: 
On January 18, 2023, approximately 01050, I was on a service call at patient Ralph Powers at 233 Creek Bank Dr New Bern, NC. The service was to change batteries x2 as well front suspension x2 needed to be replaced. The chair I was working on was a QM710 with a serial number (S/N: M710C-134857). I exchanged old batteries for new ones with no incident. On this particular model chair the seat flips back and lays on the ground. The back is connected at the back at a fulcrum pivot point which allows for the back to essentially rock back and rotate and lay on the ground. This allows for complete access to the battery compartment. When I finished exchanging batteries I positioned myself behind the chair appropriately and bent down at the knees gripping the chairs back rest , with palms facing up. I lifted the back off the ground and basically performed a curl at the bicep while at the same time extending my legs to end in an upright position. At some point in the motion of my arms I felt and heard a click. Not extremely loud. Immediately pain shot down my left shoulder, bursa, bicep, brachialis, & [b[rachioradialis. I looked these muscle groups up so I could make sure I tried to describe them correctly. I had to sit for a few minutes as the pain was so intense I felt I was going to pass out. After 5-10 minutes I was able to stand however my Left arm was limited and had very poor rom and honestly I didn't put it through too many range of motions as it hurt too bad and I wasn't sure what was wrong. I did not finish repairing the chair however I previously weeks before was able to temporarily fix the broken shock so it was still working. I told patient i Had hurt myself and would come back out soon to finish the repair. I called my supervisor Bob Watson to let him know what had happened as I didn't want to make a big deal out of it and thought maybe over time things would get better. He suggested I let Syreeta know which I then called and spoke to her about the Incident. I asked Syreeta if we could just wait one day to determine if it starts to feel better. She advised to let her know first thing in the morning & if it is still bothering me to let her know. On January 19, 2023 at approximately 0833 I called and spoke to Syreeta to advise her that my left arm still hurt to the point it was difficult getting my shirt on. At this point she stated that It would be best to have someone look at it. This is my account of the details of this incident to the best of my knowledge is accurate in all details.  

During the afternoon of 20 January 2023, Plaintiff gave a recorded statement to Kimberly Schwandt, Defendant-Carrier's claim case manager.  During the recorded statement, Plaintiff described the incident, explaining that he had to change the batteries in the Quickie model 710 and that, to do that "[y]ou tilt the seat back on this particular model.  I did that, tilted it back, changed the batteries . . . and went behind the chair" to tilt the seat upright.  Plaintiff stated "the seat itself weighs probably 100, 150 pounds.  But being that it's on this type of lever thing, I mean it's probably 50 pounds, maybe 50 pounds, so it wasn't heavy."  He also explained to Ms. Schwandt that it was a simple, non-strenuous process he had done before: "I've been doing this for 22 years . . . it's something . . . I've done, I know how to do . . . it's a fairly simple process.  It's not like I'm doing anything . . . strenuous or anything like that." During the recorded statement Plaintiff also explained that after changing the batteries, as he was behind the seat tilting it upright by performing a curling motion with his arms, he heard a "clicking sound" in his "left arm-shoulder area" and experienced severe pain.  During the recorded statement Plaintiff further related that Mr. Watson instructed Plaintiff to inform Ms. Taylor about the incident  and that Plaintiff eventually went to CCHC Urgent Care in New Bern.  During the recorded statement Plaintiff further explained that he was advised by the medical professionals at the CCHC Urgent Care to return after a week to allow for an assessment after the swelling had decreased, and that he was currently working on light duty. 
During the hearing before the Deputy Commissioner, Plaintiff was asked about the responses he gave during the recorded statement to Ms. Schwandt's questions inquiring if anything unusual occurred during the 18 January 2023 incident.  Plaintiff testified that Ms. Schwandt did not ask about the particular model of chair involved and went on to explain: "I interpreted [the question] as was anything unusual about the chair being stuck or was something get caught, and I said no . . . [n]othing unusual happened    . . . according to her question . . . Nothing got stuck and nothing was unusual about the chair causing any . . . issues with going back over."  Later, Plaintiff elaborated: "When I was asked if something got stuck . . . it didn't get stuck . . . I knew what I was doing, because I've changed them in the twenty-three years . . . unfortunately this time I got injured putting the seat back."  
Mr. Watson testified during the Deputy Commissioner hearing.  When asked if changing the batteries on a Quickie model 710 is any more difficult than other models of power wheelchairs, Mr. Watson testified: "I think the best answer to that is I would prefer to change this type of chair than some of the other models we provide." While he testified that the Quickie brand is unique in that the seat is tilted back to access the batteries, he further testified that other chair models also have unique mechanisms to access the batteries.  Mr. Watson added that the Quickie model 710 chair does not require more force during battery replacement than other models of chairs.  Mr. Watson stated that Plaintiff was competent in replacing the batteries in any of the chairs he was servicing, including the Quickie models.  
Plaintiff testified that of the over 560 chairs on his roster, only five chairs are this Quickie model 710.  In his answers to interrogatories, Plaintiff stated: "I might change batteries for this particular wheelchair model once or twice per year.  I do not consider this task part of my primary job description, especially since my role is more clinical."  
On 26 January 2023, Plaintiff returned to CCHC and FNP Moleta.  The medical record from this visit reflects that Plaintiff "continues to have pain in the left anterior shoulder pointing to the glenohumeral joint area.  He states he is still unable to raise his arm to 90° actively."  FNP Moleta noted that Plaintiff had an "inability to raise with flexion or abduction greater than approximately 70°," that there was "significant [tenderness to palpation] over the left glenohumeral and acromion process," and that Plaintiff had pain when passively lowering of the arm.  FNP Moleta referred Plaintiff for an MRI for a suspected tear in the left shoulder.  
Defendants filed a Form 61 Denial of Workers' Compensation Claim dated 3 February 2013.  This Form stated that the claim was being denied because there was "[n]o injury by accident."  Subsequent to the denial, Plaintiff sought medical treatment through the Veterans Administration (VA).   
On 8 February 2023, Plaintiff underwent X-rays of his left shoulder through the VA.  The radiology report reflected the presence of two orthopedic devices in the humeral head from a rotator cuff surgery Plaintiff had undergone in the past, a possible small Hill-Sachs deformity in the humeral head, and a slight inferior angulation of the scapula with mild subacromial encroachment that was noted to be a risk for rotator cuff impingement.  
On 22 March 2023, Plaintiff underwent an MRI of his left shoulder at Carteret Health Care in Morehead City.  The MRI report showed that Plaintiff's distal mid-to-posterior supraspinatus and majority of the distal insertion of the infraspinatus were ill-defined with severe tendinosis and a partial tear.  
Beginning on 26 April 2023 and thereafter, Plaintiff treated with Dr. John Spellman with Moore Orthopedics through the VA.  Dr. Spellman reviewed Plaintiff's MRI and noted that it showed a "partial rotator cuff tear with a chronically blunted and torn superior and posterior inferior labrum tear."  Dr. Spellman and Plaintiff agreed to proceed with surgery in the fall.  
On 11 October 2023, Dr. Spellman performed a left shoulder arthroscopy including a revision of Plaintiff's prior rotator cuff repair, subacromial decompression, distal clavicle excision, loose body removal, and lysis of adhesions.  During the surgery, Dr. Spellman visualized Plaintiff's rotator cuff tendons and confirmed that Plaintiff had full thickness tears of both his supraspinatus and infraspinatus.  Dr. Spellman evaluated the quality of Plaintiff's shoulder tissue and noted some tearing-likely attributable to the chronicity of Plaintiff's prior rotator cuff injury-but found the tissue sufficiently strong to withstand sutures.  Dr. Spellman's post-operative diagnosis of Plaintiff's left shoulder was a rupture of the proximal biceps tendon, a loose body in the left shoulder, a rotator cuff tear, and acromioclavicular arthritis.  
After a post-surgical course of treatment, Dr. Spellman cleared Plaintiff to return to work light duty effective 27 November 2023, with no lifting greater than five pounds, no overhead work, and no patient transfers.  
On 5 December 2023, Plaintiff returned to Dr. Spellman.  An MRI of Plaintiff's left shoulder performed 1 December 2023 showed a large re-tear of the supraspinatus and infraspinatus with retraction of 3.2 cm with mild to moderate atrophy pneumocephalus.  Dr. Spellman recommended that Plaintiff undergo a revision arthroscopy with a rotator cuff repair.  
On 4 January 2024, Dr. Spellman performed a repeat arthroscopy to Plaintiff's left arm.  When Dr. Spellman visualized Plaintiff's rotator cuff, he noted that the anchors from the prior surgery were still in place, and that Plaintiff's tendons had torn and retracted.  This tearing process had frayed Plaintiff's tendons to the extent that attempting a repair was no longer an option.  When Dr. Spellman attempted to suture the remnants of Plaintiff's tendon, the suture could not hold and tore through the tendon.  Consequently, Dr. Spellman proceeded with a superior capsular reconstruction using allograft.  For this procedure, Dr. Spellman grafted and replaced the areas from where Plaintiff's tendons tore.  As of the time of hearing before the Deputy Commissioner, Plaintiff remained out of work from this procedure.  
Based on a preponderance of the evidence in view of the entire record, the Full Commission finds that, on 18 January 2023, Plaintiff was performing his regular duties in the normal way.  Plaintiff's job as an Assistive Technology Professional with Defendant-Employer required him, as a customary and routine duty, to repair and service several different models of power wheelchairs.  Replacing the batteries in the power wheelchair on 18 January 2023 was a normal work duty for Plaintiff.  In making this finding, the Full Commission considered all of the movements performed by Plaintiff associated with replacing the batteries in the power wheelchair on 18 January 2023, including but not limited to unlatching the seat, pivoting the seat backwards on the fulcrum to expose the batteries, replacing the batteries, and pivoting the seat upright on the fulcrum, and the Full Commission determines that nothing got stuck, nothing was unusual about the chair or the movements, and nothing required unusual exertion.  All of the tasks and movements required to replace the batteries on 18 January 2023 were performed in the usual and routine manner.  Specifically, in pivoting the seat into the upright position on 18 January 2023, Plaintiff performed a movement he was familiar with and had done before, did not encounter any unusual situation such as the seat getting stuck, used proper lifting mechanics, and was not required to exert himself or use an unusual amount of force. The Full Commission finds that although Plaintiff infrequently changed the batteries in this particular wheelchair model, the 18 January 2023 incident was not an unlooked for or untoward event, nor was it an interruption of the work routine and the introduction thereby of unusual conditions likely to result in unexpected consequences.  In making this finding, the Full Commission considers that nothing unusual or unexpected occurred as he performed all of the tasks and movements associated with replacing the batteries on 18 January 2023 under normal working conditions.
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Based upon the foregoing Stipulations and Findings of Fact, the Full Commission makes the following:
CONCLUSIONS OF LAW
In workers' compensation cases, Plaintiff has the burden of proving every element of compensability.  As part of this burden, Plaintiff must present convincing evidence establishing these elements.  Whitfield v. Lab Corp. of Amer., 158 N.C. App. 341, 350, 581 S.E.2d 778, 784 (2003).  Regarding the Industrial Commission's ability to draw inferences from the evidence presented, the North Carolina Court of Appeals has held "[it] is for the Commission to determine the credibility of the witnesses, the weight to be given the evidence, and the inferences to be drawn from it . . . ."  Rackley v. Coastal Painting, 153 N.C. App. 469, 472, 570 S.E.2d 121, 124 (2002).  
For Plaintiff's injury to be compensable under the Workers' Compensation Act as an "injury by accident" pursuant to N.C. Gen. Stat. § 97-2(6), it must be the result of an "accident" as defined by statutory and case law.  Cody v. Snider Lumber Co., 328 N.C. 67, 70, 399 S.E.2d 104, 106 (1991).  Our courts have explained in detail the requirements of a compensable "accident" under the Act: 
[A]n unlooked for and untoward event which is not expected or designed by the person who suffers the injury.  The elements of an "accident" are the interruption of the routine of work and the introduction thereby of unusual conditions likely to result in unexpected consequences. Of course, if the employee is performing his regular duties in the "usual and customary manner," and is injured, there is no "accident" and the injury is not compensable. 

Porter v. Shelby Knit, Inc., 46 N.C. App. 22, 26, 264 S.E.2d 360, 363 (1980) (internal citations and quotations omitted).  Furthermore, it is long held in North Carolina that "the mere fact of injury does not of itself establish the fact of accident."  Bigelow v. Tire Sales Co., 12 N.C. App. 220, 222, 182 S.E.2d 856, 858 (1971).  The North Carolina Court of Appeals explained this principle within the context of the requirements of a compensable accident:
[a]n 'accident' is not established by the mere fact of injury but is to be considered as a separate event preceding and causing the injury. No matter how great the injury, if it is caused by an event that involves both an employee's normal work routine and normal working conditions it will not be considered to have been caused by accident.

Searsey v. Perry M. Alexander Const. Co., 35 N.C. App. 78, 79-80, 239 S.E.2d 847, 849 (1978) (internal citations omitted).  The preponderance of the evidence in view of the entire record establishes that Plaintiff's job with Defendant-Employer required him, as a customary and routine duty, to replace batteries in various models of wheelchairs such as the one he was servicing on 18 January 2023.  No "unlooked for and untoward event . . . not expected or designed" or "interruption of the routine of work and the introduction thereby of unusual conditions likely to result in unexpected consequences" occurred as Plaintiff performed a non-strenuous seat pivot using proper technique under normal working conditions on 18 January 2023.  In reaching this conclusion, the Full Commission considered all of the movements performed by Plaintiff associated with replacing the batteries in the power wheelchair on 18 January 2023, including but not limited to unlatching the seat, pivoting the seat backwards on the fulcrum to expose the batteries, replacing the batteries, and pivoting the seat upright on the fulcrum, and the Full Commission determines that nothing got stuck, nothing was unusual about the chair or the movements, and nothing required unusual exertion.  All of the tasks and movements required to replace the batteries on 18 January 2023 were performed in the usual and routine manner.  Specifically, in pivoting the seat into the upright position on 18 January 2023, Plaintiff performed a movement he was familiar with and had done before, did not encounter any unusual situation such as the seat getting stuck, used proper lifting mechanics, and was not required to exert himself or use an unusual amount of force.  The Full Commission concludes that nothing unusual or unexpected occurred as he performed all of the tasks and movements associated with replacing the batteries on 18 January 2023 under normal working conditions.  Therefore, Plaintiff has produced insufficient evidence to prove that he sustained a compensable injury by accident on 18 January 2023.  Id.; N.C. Gen. Stat. § 97-2(6) (2023).  
Given the foregoing, Plaintiff's claim is not compensable under the provisions of the North Carolina Workers' Compensation Act.  N.C. Gen. Stat. § 97-1, et seq.
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Based upon the foregoing Findings of Fact and Conclusions of Law, the Full Commission makes the following: 
				               AWARD
Plaintiff's claim for compensation must be and is hereby DENIED.  

Vice-Chair GRIFFIN and Commissioner PHILLIPS concur. 

 Paginated as pages 386 to 447

I.C. NO. 23-003586		Page 2