Rackley v. Coastal Painting, COA01-1363.

• Decision Date: 15 October 2002
• Docket Number: No. COA01-1363.,COA01-1363.
• Citation: 153 NC App. 469,570 S.E.2d 121
• Court: North Carolina Court of Appeals
• Parties: James Charles RACKLEY, Jr., Employee, Plaintiff, v. COASTAL PAINTING, Employer, and Companion Property & Casualty Insurance Company, Carrier, Defendants.

570 S.E.2d 121

153 NC App. 469

James Charles RACKLEY, Jr., Employee, Plaintiff, v. COASTAL PAINTING, Employer, and Companion Property & Casualty Insurance Company, Carrier, Defendants.

No. COA01-1363.

Court of Appeals of North Carolina.

October 15, 2002.

Taft, Taft & Haigler, P.A., by Thomas Taft, Sr., Greenville, and Patterson, Harkavy & Lawrence, L.L.P., by Martha A. Geer, Raleigh, for plaintiff-appellee.

Morris York Williams Surles & Barringer, LLP, by John F. Morris, Charlotte, and Amy E. Echerd, Huntersville, for defendant-appellants.

MARTIN, Judge.

Defendants appeal from the Commission's award to plaintiff of permanent total disability benefits and medical expenses, as well as an award for costs and attorney's fees under G.S. §§ 97-88 and 97-88.1. Evidence before the Commission tends to show that on 9 August 1996, plaintiff, who was 21 years of age, was employed by defendant Coastal Painting as a house painter. Around 8:30 a.m. on 9 August 1996, plaintiff and his co-workers arrived at the work site, a three-story condominium on the south end of Topsail Island. Plaintiff began his work painting the trim and fascia on the exterior of the third floor of the building, working from a 32-foot ladder that was leaned against the building and had no safety harnesses. Plaintiff's work required that he stand on the ladder, but lean back and hold onto the eave or shingles. At some point before 9:00 a.m., plaintiff fell from the ladder to the ground and sustained a "burst compression fracture at C5", resulting in quadriplegia. After surgery and rehabilitation, he remains completely disabled from work. Since his release from rehabilitation, plaintiff has resided in Florida with his mother, who has provided him with home health care.

Plaintiff does not know how he fell and there were no witnesses to the fall. Plaintiff stated that all he could remember was painting the trim and then lying on the ground in pain and unable to move his limbs. Plaintiff's co-workers were at other sides of the house when the accident happened. The owner of the house testified that she had seen the top of plaintiff's head through a window while he was painting on the ladder and then heard "a thump." Upon hearing the sound and then seeing plaintiff lying on the ground below the ladder, she ran downstairs to him. She testified that the ladder had not moved from its position against the house.

The evidence also tended to show that plaintiff suffered from photoconvulsive epilepsy, having been diagnosed with the condition at age 15. His seizures, which are grand mal seizures, are triggered by flashing lights and have occurred when he has played video games or seen the sun breaking through trees. Since his diagnosis with epilepsy, plaintiff has been on two anti-seizure medications, Dilantin, then Tegretol. When he had attempted to go off the medication in the past, plaintiff had experienced seizures. The record indicates that he may have had about eight seizures total between age 15 and the time of the accident.

There was evidence that directly after the fall, the homeowner and his co-worker saw him "shaking." Plaintiff stated to the paramedics who arrived on the scene that he may have fallen due to a seizure. According to expert medical testimony, shaking movements and blackouts are possible indications of an epileptic seizure. Plaintiff, however, had no memory loss of earlier events in the day, as he had in the past when he had seizures. He was conscious and not disoriented immediately after the fall and there was no evidence that he vomited, drooled, chewed his tongue, or voided his bowels.

Plaintiff's post-accident blood tests showed that he had a sub-therapeutic level of Tegretol in his system on the day of the accident. Generally, a therapeutic level measures between 4-12 micrograms per milliliter of blood, but plaintiff's results showed only 2.5 micrograms. The blood tests also show recent marijuana consumption by plaintiff and the Commission found that plaintiff smoked marijuana with his co-workers, including the owner of defendant Coastal Painting, before work on the morning he was injured.

Defendant's expert medical witness, Dr. Karner, testified that plaintiff "probably" fell because he had a seizure on the ladder. However, other expert medical witnesses testified that they could not say with any certainty that plaintiff had a seizure on the ladder or at all that day and noted that he could have had one while falling or as a result of the fall once on the ground.

Soon after the accident, plaintiff filed a Form 18 which stated that he was painting and fell. In contrast, defendant-employer's Form 19 asserted that plaintiff had a seizure and fell. In a Form 61, defendants denied plaintiff's claim, stating that it was the result of his idiopathic condition, which has no causal connection to his employment, and therefore the injury did not arise out of plaintiff's employment. The claim was heard by a deputy commissioner, who filed an opinion and award finding that the claim was compensable and awarding plaintiff permanent total disability. Defendants appealed to the Full Commission, which affirmed the deputy commissioner's opinion and award. In addition, the Commission awarded plaintiff costs and attorney's fees in the amount of $800.00 pursuant to G.S. § 97-88 and G.S. § 97-88.1, for defendants' "unsuccessful appeal to the Full Commission and their unreasonable defense of this claim." Defendants filed a Notice of Appeal to this Court.

The scope of appellate review of decisions of the Industrial Commission is limited to a determination of whether there is competent evidence in the record to support the Commission's findings of fact and whether the findings support the conclusions of law on which the award is based. See Boles v. U.S. Air, Inc., 148 N.C.App. 493, 560 S.E.2d 809 (2002)

. The issues raised by defendant in this appeal are (1) whether the Commission erred in determining that plaintiff was injured as a result of a compensable accident arising out of and in the course of his employment, rather than as a result of an idiopathic condition independent of his employment, and (2) whether the Commission erred in awarding attorney's fees pursuant to G.S. §§ 97-88 and 97-88.1.

In order to be compensable under the Act, an employee's injury by accident must arise out of and in the scope of employment. See N.C. Gen.Stat. § 97-2(6) (2002). In the case at hand, there is no dispute as to whether plaintiff sustained an injury by accident, a fall having long been accepted as the kind of unusual event that comprises an "accident." See Taylor v. Twin City Club, 260 N.C. 435, 437, 132 S.E.2d 865, 867 (1963)

. Likewise, the parties agree that the accident occurred in the scope of employment, having taken place during work hours and while plaintiff was engaged in the performance of his duties. Id. at 437-38, 132 S.E.2d at 867.

The only issue in dispute regarding the compensability of plaintiff's claim is whether the accident arose out of his employment. In support of their contention that the injury did not arise out of plaintiff's employment, defendants argue that when an injury is caused solely by a plaintiff's idiopathic condition, there is no link with employment and no compensation award should be made. See Hollar v. Montclair Furniture Co., Inc., 48 N.C.App. 489, 269 S.E.2d 667 (1980)

. The Commission found that "the greater weight of the evidence does not show that an idiopathic condition, plaintiff's epilepsy, was the sole proximate cause of the injuries plaintiff sustained" and that the cause of plaintiff's fall was, in fact, "unclear." Defendants argue that the evidence, particularly the testimony of Dr. Karner and the fact that witnesses said that plaintiff appeared to be shaking or convulsing after the fall, indicate that plaintiff's fall was caused by a seizure alone. However, defendants' interpretation of the evidence is not the only reasonable interpretation. 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. See Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998). As long as the Commission's findings are supported by competent evidence of record, they will not be overturned on appeal. See De Vine v. Dave Steel Co., 227 N.C. 684, 685, 44 S.E.2d 77, 78 (1947).

We hold that the Commission's findings regarding the cause of plaintiff's injury are adequately supported by the evidence. There was contradictory evidence as to whether plaintiff had a seizure, there were no witnesses to the fall, and the evidence showed that plaintiff had to lean away from the ladder to paint the trim without anything more than the trim to hold. Moreover, it is not inappropriate for the Commission to find that the cause of an employee's fall is "unclear." See id. at 685, 44 S.E.2d at 78 (noting that the "exact cause of the fall is not determined" but that the record supported the Commission's finding that the accident arose out of the employment). This is true even where there is...