Rhoades and Dennis Defend Alleged Injury by Accident Claim

David Rhoades and Walter Dennis (Raleigh) prevailed in a case in which plaintiff suffered a biceps/shoulder injury at work while working as a Cheese Specialist at a grocery store.    Plaintiff felt immediate pain when he picked up a 35 lb. block of cheese from a pallet in the cooler after it had been delivered.  He reported the injury immediately and received medical treatment, including surgery.   Plaintiff had worked at in different areas of the store but was promoted to a Cheese Specialist about 6 weeks before the injury and he claimed he had never picked up that large of an item before while working as a Cheese Specialist.  Plaintiff testified that the injury occurred while picking up the block of cheese and that the box did not slip or anything of that nature.    Plaintiff argued that because he had not had to pick up that large of an item before that the activity of picking up the 35 lb block of cheese was unusual and therefore an “accident.”   The manager testified that every 8 weeks or so the Cheese Specialist has to order large blocks of cheese and they have to be stored, moved and cut up so what plaintiff was doing was not unusual and was part of his job as a Cheese Specialist.    The manager also testified that it was possible that plaintiff had not had to lift that large a piece of cheese before as he had only worked in that position for about 6 weeks.     Defendants argued that there was no accident and that plaintiff was doing the normal job of a Cheese Specialist when the injury occurred.    The Deputy Commissioner found that plaintiff was doing his normal job as a Cheese Specialist so no “accident” occurred and the claim was denied.    This decision shows that even if plaintiff had not done the specific activity before but if it is part of his job then the Commission can find that no “accident” occurred.     Plaintiff has appealed to the Full Commission.