Hodges v. Equity Group

• Decision Date: 18 May 2004
• Docket Number: No. COA03-930.,COA03-930.
• Citation: 596 S.E.2d 31,164 NC App. 339
• Court: North Carolina Court of Appeals
• Parties: John M. HODGES, Plaintiff, v. EQUITY GROUP, Defendant, Sedgwick CMS, Servicing Agent.

596 S.E.2d 31

164 NC App. 339

John M. HODGES, Plaintiff, v. EQUITY GROUP, Defendant,

Sedgwick CMS, Servicing Agent.

No. COA03-930.

Court of Appeals of North Carolina.

May 18, 2004.

McAngus, Goudelock & Courie, P.L.L.C., by John T. Jeffries, Charlotte, for defendants.

Anne R. Harris, Greensboro, for plaintiff.

WYNN, Judge.

From the Industrial Commission's award in favor of Plaintiff-employee John M. Hodges, Defendants Equity Group and Sedgwick-CMS argue on appeal that: (I) Plaintiff's fall neither related to nor arose out of his employment; (II) the Commission erroneously based its findings of fact and conclusions of law upon incredible evidence; (III) the Commission's findings of fact regarding Dr. Guarino's ex parte communication were unsupported by evidence and (IV) attorney's fees pursuant to N.C. Gen.Stat. § 97-88 were inappropriate. By cross-appeal, Plaintiff contends an award of attorney's fees pursuant to N.C. Gen.Stat. § 97-88.1 was appropriate in this matter. We conclude the Commission's findings of fact and conclusions of law regarding the compensability of Plaintiff's claim were supported by competent evidence and the applicable law. We further hold that the Commission's award of attorney's fees under N.C. Gen.Stat. § 97-88 was unsupported by appropriate findings of fact, and uphold the Commission's decision to not award attorney's fees under N.C. Gen.Stat. § 97-88.1. Accordingly, we remand to the Commission for entry of findings of fact to support the award of attorney's fees under N.C. Gen.Stat. § 97-88.

The record shows that Plaintiff fell at work on 16 April 2001. On this date, Plaintiff, a mechanic at Equity Group, worked overtime as the factory was closed for the Easter holidays. He had volunteered to work the second shift, from 2:30 to 11:00 p.m., and was in the process of preparing the machines for the manufacture of a new product the next day.

At the beginning of his shift, Plaintiff worked in the maintenance shop fixing machine guards, which prevent the lines from hooking together and breaking. After he had prepared one of the guards, he decided to install it on a machine to make sure it worked properly. He left the maintenance shop, started onto the factory floor, and as he turned a corner, his "feet came out from under him" and he landed on his right hip and back. As he was gathering himself, his co-worker asked him if he was okay. Although Plaintiff testified he felt pain after the fall, he "shrugged it off" and kept working. No supervisor was on duty that evening and only one other person was working.

The next morning he felt stiffness in his hip and numbness in his leg. Upon arriving to work, he reported the injury to one of his supervisors who directed Plaintiff's immediate supervisor to fill out an accident report. He worked his entire shift that day. The next day, Wednesday, the pain had worsened. He talked with his immediate supervisor and another individual about seeing a doctor. An accident report was filled out and human resources scheduled an appointment with Dr. Joseph Guarino.

Dr. Guarino examined Plaintiff and indicated his back and hip was bruised. He prescribed an anti-inflammatory drug and ordered Plaintiff to work on light-duty tasks. No pain medication was prescribed. The following Sunday, Plaintiff went to the emergency department at Morehead Hospital because he was hurting badly. After indicating he had slipped and fallen at work, the hospital prescribed some pain medication and ordered light-duty work. The next Tuesday, Plaintiff returned home from work and was unable to get out of his car due to the pain. Plaintiff's wife drove him to the emergency room at Martinsville Memorial Hospital. The emergency room doctors scheduled an MRI for the following Saturday and ordered three days leave from work. The MRI revealed Plaintiff had a ruptured disc in his back. The next Monday, Plaintiff saw Dr. Guarino who opined the disc herniation was not causing Plaintiff's pain because the disc herniation was on the left side and the pain was in Plaintiff's right leg and hip. Dr. Guarino told Plaintiff to return to work and he would try to obtain authorization for physical therapy. Thereafter, Plaintiff sought treatment with his family physician, Dr. M. Edward Eller, who told Plaintiff not to return to work and to see Dr. James M. Vasick, a neurosurgeon.

Dr. Vasick had operated on Plaintiff's back in 1998 in the same location as the current rupture. Plaintiff had a 100% recovery from the 1998 surgery. After reviewing Plaintiff's present condition, Dr. Vasick gave Plaintiff a range of treatment options. As Plaintiff had a successful surgery in 1998, he opted for surgery. In May and June 2001, Plaintiff underwent two surgeries to correct the disc herniation. Although the back pain subsided after the surgery, Plaintiff still experienced pain in his right hip and leg.

At the time of the hearing, Plaintiff used a cane, participated in limited exercise and daily activities and was on Social Security disability. He had been terminated from his employment with Equity Group in August 2001 and was not presently working. Dr. Vasick opined Plaintiff could not work and would need further treatment in the future. The Commission found and concluded Plaintiff sustained a compensable injury by accident as a result of his fall and suffered a disc herniation. He was awarded temporary total disability compensation. Defendants appeal.

Defendants first argue that because Plaintiff's "legs went out from under him" the risk of a resulting fall was not a hazard related to or arising out of Plaintiff's employment. We disagree.

"To be compensable under the Workmen's Compensation Act an injury must result from an accident arising out of and in the course of the employment." Taylor v. Twin City Club, 260 N.C. 435, 437, 132 S.E.2d 865, 867 (1963). "With respect to back injuries, however, where injury to the back arises out of and in the course of the employment and is the direct result of a specific traumatic incident of the work assigned, `injury by accident' shall be construed to include any disabling physical injury to the back arising out of and causally related to such incident." N.C. Gen.Stat. § 97-2(6)(2003). The "claimant has the burden of showing such injury." Taylor, 260 N.C. at 437, 132 S.E.2d at 867.

Defendants concede in their brief that:

there is no question as to whether Plaintiff-Appellee's fall occurred in the course of his employment given that he was at work during working hours. Moreover, the fall was an unusual and unforeseen occurrence.

However, Defendants argue, Plaintiff failed to prove the fall arose out of his employment and the Commission failed to make any findings on the issue.

"Where any reasonable relationship to the employment exists, or employment is a contributory cause, the court is justified in upholding the award as `arising out of employment.'" Janney v. J.W. Jones Lumber Co., Inc., 145 N.C.App. 402, 404, 550 S.E.2d 543, 545-46 (2001). "An accident has a reasonable relationship to the employment when it is the result of a risk or hazard incident to the employment. When the employee's idiopathic condition is the sole cause of the injury, the injury does not arise out of the employment. The injury does arise out of the employment if the idiopathic condition of the employee combines with `risks attributable to the employment' to cause the injury." Id. An idiopathic condition is "one arising spontaneously from the mental or physical condition of the particular employee." Calhoun v. Kimbrell's Inc., 6 N.C.App. 386, 391, 170 S.E.2d 177, 180 (1969). "The question of whether an injury `arises out of employment' is a mixed question of law and fact and our review is limited to whether the findings and conclusions are supported by competent evidence." Janney, 145 N.C.App. at 404,550 S.E.2d at 546.

Defendants contend that because Plaintiff could not explain the circumstances surrounding his fall and because an idiopathic condition could have caused Plaintiff's fall, his injury did not arise out of his employment. Indeed, Plaintiff testified he did not stumble or trip, there were no obstructions in his way, and he did not believe he slipped. He indicated his "feet just came out from under him."

Our case law explains that where the facts indicate that at the time of an accident, an employee "was within his orbit of duty on the business premises of the employer, [and] was engaged in the duties of his employment or some activity incident thereto, was exposed to the risks inherent in his work environment and related to his employment, and the only active force involved was the employee's exertions in the performance of his duties," an "inference that the fall had its origin in the employment" is permitted. Slizewski v. International Seafood, Inc., 46 N.C.App. 228, 232-33, 264 S.E.2d 810, 813 (1980).

In this case, Plaintiff fell when he was walking to a machine in order to install a guard. Although the factory was closed for the Easter holiday, plant management had asked for volunteers to work overtime on this particular day and had left a list of jobs to complete during the shift. Even though Plaintiff can not explain what caused him to fall, as stated in Slizewski, an inference that the fall had its origin in employment is permitted in this case because "the only active force involved was the employee's exertions in the performance of his duties." Id.

Defendants contend, however, that Plaintiff's fall was solely caused by an idiopathic condition—either the onset of his disc herniation or problems with his diabetes and high blood pressure. This contention is unsupported by the record. Dr. James M. Vasick, Plaintiff's neurosurgeon, was asked:

Based upon what you said, that a disc can occur in the absence of trauma, if a disc had occurred in the absence of trauma, could one of the problems that would occur be that a person's feet just might come out from under them

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