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., and
Patterson, Harkavy & Lawrence, L.L.P., by Martha A. Geer, for
plaintiff-appellee.
Morris York Williams Surles & Barringer, LLP, by John F.
Morris and Amy E. Echerd, 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-footladder 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-seizuremedications, 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 couldnot 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.
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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 bydefendant 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 injuriesplaintiff 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.
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 some evidence providing possible explanations for the
fall.
See Taylor,
260 N.C. at 438-39, 132 S.E.2d at 867-68(rejecting the defendant's explanation of the accident as arising
from the plaintiff's angina where there were facts to support the
Commission's finding and conclusion that the accident arose out of
the plaintiff's employment).
As part of their argument that plaintiff's fall was caused
solely by his idiopathic condition, defendants also challenge the
Commission's findings and conclusions regarding the risk created by
plaintiff's position on the ladder. Under
Hollar,
48 N.C. App. at
496, 269 S.E.2d at 672,
“where the injury is associated with any
risk attributable to the employment, compensation should be
allowed, even though the employee may have suffered from an
idiopathic condition which precipitated or contributed to the
injury.”
See also, e.g., Allred v. Allred-Gardner,
Inc., 253 N.C.
554, 557, 117 S.E.2d 476, 478-79 (1960). Similarly, where the
cause of a fall is unexplained, but related to a “risk or hazard
incident to plaintiff's employment,” the injury will be
compensable.
Janney v. J.W. Jones Lumber Co., 145 N.C. App. 402,
407, 550 S.E.2d 543, 547 (2001) (citing
Robbins v. Hosiery Mills,
220 N.C. 246, 248, 17 S.E.2d 20, 21 (1941)).
As stated above, the Commission found that the cause of
plaintiff's fall was “unclear” and that any role his idiopathic
condition played in the fall was partial. The Commission also
found that “[c]limbing and painting on a 32-foot ladder,
particularly with no harness or other safety equipment, are
inherently risky activities that are attributable to plaintiff's
employment as a painter” and that “special hazards attributable toor incidental to plaintiff's employment existed and, in fact were
a contributing proximate cause of plaintiff's accident and
resulting injuries.”
There was evidence in the record that being atop a ladder is
dangerous and that plaintiff himself felt insecure on the day of
the accident as he leaned back from the ladder with no harnesses in
order to paint the exterior trim. This evidence supports the
Commission's findings regarding the hazard posed by working on a
ladder. Furthermore, the Commission was entitled to infer from
that evidence, as well as evidence of the fall from the ladder and
the nature of the injury, that the hazard contributed to
plaintiff's injury.
In
Allred,
253 N.C. 554, 558, 117 S.E.2d 476, 479, the
claimant was driving a truck for work when he blacked out and hit
a pole. The fact that the plaintiff blacked out due to an
idiopathic condition and that he was driving a truck for work at
the time was sufficient to support a finding that the accident
arose out of claimant's employment.
No findings were required that
the claimant's injury was made more severe or caused solely by the
fact that he was driving a truck. Rather, the Court made the
“common sense” observation that “[h]ad he been in the office or
walking on the street, probably no injury--certainly not this one--
would have occurred.”
Id. at 557, 117 S.E.2d at 478. A similar
conclusion by the Commission was reasonable in the present case.
Defendants rely heavily on
Vause v.
Vause Farm Equipment Co.,
233 N.C. 88, 63 S.E.2d 173 (1951),
claiming that its facts resemblethose in the case at hand, thus requiring a similar outcome. In
Vause, an employee who had epilepsy was driving for work when he
sensed an oncoming seizure. He pulled off the road and laid down
across the seat of the truck before losing consciousness. When he
came to, the plaintiff was hanging out the driver's side door from
the steering wheel and had injured his left leg. The Supreme Court
held that the Commission's finding that driving a truck for work
exposed the plaintiff to a special hazard was supported by evidence
in the record.
Id. at 98, 63 S.E.2d at 180. However, the Court
then held that because the plaintiff was not driving at the time of
his accident, but rather had positioned himself in a “place of
apparent safety,” there was “no showing that any hazard of the
employment contributed in any degree” to the accident and injury.
Id. In the case at hand, plaintiff was not in a position of safety
at the time of his accident; he was 30 feet up a ladder.
Therefore,
Vause is not analogous to the case at hand.
Based on its findings of fact, the Commission concluded that:
Hazards or risks incidental to plaintiff's
employment existed, and were a contributing
proximate cause of plaintiff's accident and
resulting injuries. Therefore, plaintiff's
injury arose out of plaintiff's employment,
even though an idiopathic condition . . . may
have contributed to the accident and, as a
result, plaintiff's injury by accident is
compensable under the . . . Act.
These conclusions were supported by the findings of fact and
correct as a matter of law. Therefore, we affirm the Industrial
Commission's ruling that plaintiff sustained a compensable injury
by accident and is thus entitled to the permanent total disabilitybenefits awarded by the Commission.
Defendants also challenge the Full Commission's award of
attorneys' fees to plaintiff under both G.S. § § 97-88 and 97-88.1.
The two statutes allow the award of fees and costs on different
bases. G.S. § 97-88 permits the Full Commission or an appellate
court to award fees and costs based on an insurer's unsuccessful
appeal. G.S. § 97-88.1, on the other hand, allows an award of fees
only if defendants were without reasonable grounds to defend the
claim. In their brief, defendants' argument against the fee award
addresses only the issue of unreasonable defense, not whether the
Commission should have awarded fees based on the unsuccessful
appeal. Therefore, based on Rule 28(b)(6) of the Rules of
Appellate Procedure, we decline to address whether the award was
properly based on G.S. § 97-88. Moreover, because the Commission
did not apportion the $800.00 award between the two statutes and we
may assume that the entire award would have been proper under § 97-
88, this Court need not address whether the award was proper under
§ 97-88.1. Therefore, the award of attorneys' fees by the Full
Commission will not be disturbed.
Affirmed.
Judges TYSON and THOMAS concur.
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