Heatherly v. the Hollingsworth Co. Inc.

• Decision Date: 19 April 2011
• Docket Number: No. COA10–994.,COA10–994.
• Citation: 712 S.E.2d 345
• Parties: Kenneth HEATHERLY, Employee, Plaintiff,v.THE HOLLINGSWORTH COMPANY, INC., Employer,Stonewood Insurance Company, Carrier, Defendants.
• Court: North Carolina Court of Appeals

712 S.E.2d 345

Kenneth HEATHERLY, Employee, Plaintiff,

v.THE HOLLINGSWORTH COMPANY, INC., Employer,Stonewood Insurance Company, Carrier, Defendants.

No. COA10–994.

Court of Appeals of North Carolina.

April 19, 2011.

OPINION TEXT STARTS HERE

Appeal by defendants from opinion and award entered 7 May 2010 by the North Carolina Industrial Commission. Heard in the Court of Appeals 24 January 2011.

Bazzle, Carr & Parce, P.A., Hendersonville, by Ervin W. Bazzle, for plaintiff-appellee.

Brooks, Stevens & Pope, P.A., Raleigh, by Bambee B. Blake and Ginny P. Lanier, for defendants-appellants.

HUNTER, ROBERT C., Judge.

Defendant-employer The Hollingsworth Company, Inc. and defendant-carrier Stonewood Insurance Company appeal the Industrial Commission's decision awarding plaintiff Kenneth Heatherly temporary total disability and medical benefits. After careful review, we affirm.

Factual and Procedural Background

The underlying facts regarding plaintiff's injury and treatment are set out in greater detail in this Court's prior opinion in this case. See Heatherly v. Hollingsworth Co., 189 N.C.App. 398, 398–99, 658 S.E.2d 30, 31 (2008). Pertinent to this appeal, during July 2004, plaintiff was working as a framer and drywall hanger for his brother Randy Heatherly's construction company CDS Drywall. On 12 July 2004, plaintiff was working at a job site where a new house was being built on Ridge Mountain in Brevard. The job site was located “at or near the top of the mountain,” near some metal towers. The house under construction had a metal roof and weather vanes had been attached to the top of the roof. Plaintiff and the rest of the construction crew set up their equipment in the unfinished garage, which did not have doors, and ran all of their electrical cords for their equipment from the garage to various locations around the house. That day, plaintiff was hanging drywall inside the house with his uncle Billy Cole Justice.

The construction crew stopped work early on 12 July 2004 due to inclement weather, including rain, thunder, and lightning. Plaintiff called his brother from a “landline” in the garage to inform him that the crew was finishing working for the day due to the weather. While making the call, plaintiff was standing inside the unfinished garage, with his left leg on the floor and his right leg propped up against the drywall, approximately five feet from the entrance to the garage and several feet from an electrical drop cord and the electrical outlet the crew used to power their equipment. Lightning was striking outside and sparks were “flying” from the drop cord. Plaintiff was struck by an “electrical charge or jolt from the lightning,” throwing him backwards roughly eight feet through the air. As plaintiff landed, he struck his head, shoulders and right arm on the garage's concrete floor. Although he was “dazed and confused,” plaintiff was conscious; plaintiff felt pain and a “burning sensation” in his right hand and left foot.

Mr. Justice drove plaintiff to Transylvania Community Hospital in Brevard, where he primarily complained of pain in his right hand and left foot. X-rays of plaintiff's right hand showed closed right fourth and fifth metacarpal fractures. Plaintiff was given morphine for the pain. Plaintiff's brother, who visited him in the hospital, noticed bruising and swelling to his right hand that had not been there the day before. Although plaintiff was referred to an orthopaedic surgeon for treatment of his hand fractures, plaintiff did not receive further treatment due to defendants' denial of his workers' compensation claim and his lack of health insurance. Plaintiff did not return to work until 3 January 2005.

After conducting a hearing on 28 January 2005, the deputy commissioner issued an opinion and award on 6 January 2006, in which the deputy commissioner awarded plaintiff past and future medical benefits as well as temporary total disability benefits for the period of 12 July 2004 through 2 January 2005. Defendants appealed to the Full Commission, which affirmed the deputy commissioner's decision with minor modifications. On defendants' appeal to this Court, we determined that the Full Commission had erroneously applied the “positional risk” test rather than the “increased risk” test, as set out in Pope v. Goodson, 249 N.C. 690, 107 S.E.2d 524 (1959), in “reaching its ultimate conclusion of law that plaintiff's injury arose out of and in the course of his employment....” Heatherly, 189 N.C.App. at 399, 658 S.E.2d at 31. Consequently, this Court “reverse[d] the Full Commission's opinion and award and remand[ed] the matter to the Full Commission to make new findings of fact and conclusions of law in accordance with the ‘increased risk’ principles set forth in Pope.” Id. at 401, 658 S.E.2d at 32.

On remand, the Commission amended its opinion and award to include findings of fact and conclusions of law regarding whether plaintiff's employment exposed him to an “increased risk” of being struck by lightning. Specifically, the Commission concluded, based on its findings that “[t]he work conditions at the time of Plaintiff's injury [a]re consistent with several of the factors set forth in Pope,” that plaintiff's “employment placed him at an increased risk of sustaining injuries due to lightning greater than members of the general public in that neighborhood, and therefore, the danger to which he was exposed was incident to his employment.” The Commission, accordingly, awarded plaintiff temporary total disability benefits as well as past and future medical treatment. Defendants timely appealed to this Court.

Standard of Review

Appellate review of a decision by the Industrial Commission is limited to “reviewing whether any competent evidence supports the Commission's findings of fact and whether the findings of fact support the Commission's conclusions of law.” Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). The Commission, as the fact-finding body, “is the sole judge of the credibility of the witnesses and the weight of the evidence, and its [factual] determination[s][are] binding on appeal, if supported by competent evidence, even though the evidence might also support contrary findings.” Counts v. Black & Decker Corp., 121 N.C.App. 387, 389, 465 S.E.2d 343, 345, disc. review denied, 343 N.C. 305, 471 S.E.2d 68 (1996). The Commission's conclusions of law, however, are reviewed de novo. McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 701 (2004).

Defendants first contend that “[t]he Industrial Commission erred in finding and concluding that plaintiff sustained a compensable injury by accident arising out of and in the course of his employment, as plaintiff failed to present expert evidence that his employment placed him at an increased risk of sustaining a lightning strike over the general public.” As our Supreme Court has explained, the Workers' Compensation Act “does not contemplate compensation for every injury an employee may receive during the course of his employment but only those from accidents arising out of, as well as, in the course of employment.” Bryan v. T.A. Loving Co., 222 N.C. 724, 728, 24 S.E.2d 751, 754 (1943); N.C. Gen.Stat. § 97–2(6) (2009). In lightning strike cases, “[t]he generally recognized rule is that where the injured employee is by reason of his [or her] employment peculiarly or specially exposed to risk of injury from lightning—that is, one greater than other persons in the community,—death or injury resulting from this source usually is compensable as an injury by accident arising out and in the course of the employment.” Pope, 249 N.C. at 692, 107 S.E.2d at 525–26.

“Whether an accident arose out of the employment is a mixed question of law and fact.” Sandy v. Stackhouse, Inc., 258 N.C. 194, 197, 128 S.E.2d 218, 221 (1962). Whether an employee's job exposed him or her to an increased risk of injury by accident is a question of law. Dillingham v. Yeargin Construction Co., 320 N.C. 499, 502, 358 S.E.2d 380, 382 (1987); Heatherly, 189 N.C.App. at 400, 658 S.E.2d at 31.

Defendants claim that the Supreme Court's decision in Pope “clearly requires workers' compensation claimants to present expert testimony that proves the requisite increased risk in lightning strike cases.” In Pope, 249 N.C. at 692–93, 107 S.E.2d at 526 (internal citation omitted), the Supreme Court exhaustively surveyed caselaw from the “courts of the land” in order to answer “the question of if and when an accidental injury or death due to a true Act of God in the form of a bolt of lightning arises ‘out of’ the employment....” After summarizing numerous cases and their holdings, the Pope Court concluded:

[T]he great majority of the courts have reached the conclusion that the workman is entitled to compensation for injuries produced by lightning in all cases where he was subjected to a danger from lightning greater than were the other people in the neighborhood; that is, Was the danger to which he was subjected one which was incident to the employment, or was it one to which other people, the public generally, in that neighborhood, were subjected?

Id. at 696, 107 S.E.2d at 528. The Court then applied the “increased risk” test, as articulated in lightning strike cases, to the facts of that case, holding:

The evidence shows that Pope, when killed by lightning, by reason of his employment had on wet clothes, and had tied around his waist a nail apron containing nails, and that these circumstances, incidental to his employment, peculiarly exposed him to risk of injury from lightning greater than that of other persons in the community. Such being the case his death is compensable under our Workmen's Compensation Act as an injury by accident arising out of and in the course of his employment.

Id. at 698, 107 S.E.2d at 529–30.

We do not believe, as defendants suggest, that “ Pope confirms the requirement of expert testimony.” As defendants acknowledge, Pope involved...