570 S.E.2d 121 (N.C.App. 2002), COA01-1363, Rackley v. Coastal Painting

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

570 S.E.2d 121 (N.C.App. 2002)

153 N.C.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.

Page 122

Appeal by defendants from opinion and award entered 13 June 2001 by the Full Commission of the North Carolina Industrial Commission. Heard in the Court of Appeals 22 August 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 [153 N.C.App. 470] 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

Page 123

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 [153 N.C.App. 471] disoriented...

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