Daugherty v. Mountain Constr. Enter.
Dissenting Opinion
It is well settled that the Workers' Compensation Act is to be construed liberally and in favor of the injured employee, and its benefits are not to be denied upon technical, narrow, or strict interpretation of its provisions. See Matthews v. Charlotte-MecklenburgHosp. Authority,
Plaintiff testified at hearing before the Deputy Commissioner that upon attempting to enter the Doolittle House (defendant-employer's job site), the door to the house would not open, likely because of a fallen board. Plaintiff had to use some force and eventually the door "popped open," causing plaintiff to tumble into the entry way. He attempted to regain his balance, but tripped on a nearby extension cord that was tangled on the floor. Plaintiff was unable to regain his balance and fell into an open stairwell that did not yet have handrails. He dropped one flight and landed on the middle landing, hitting the back of his head and shoulder area. Although this chain of events is indeed elaborate, there is no instance in the record in which plaintiff changed or varied his account of the accident. Moreover, the medical records and the notes taken by defendants when plaintiff reported the accident do not differ from plaintiff's testimony and, thus, corroborate plaintiff's account.
Defendants' contend, and the majority so found, that the physical findings plaintiff exhibited upon reporting to the emergency room within hours of the accident and during follow up with his internist, Dr. Barker, were not related to the fall at work. Dr. Barker attributed plaintiff's symptoms and complaints to the March 10, 2001, fall at work. However, the majority did not find Dr. Barker's opinion to be credible because it was based upon plaintiff's own version of the fall. As plaintiff's treating physician before and after the accident, Dr. Barker is in the best position to determine whether or not plaintiff's physical findings were causally related to the fall at work. The majority should have given greater weight to Dr. Barker's opinion.
Based upon plaintiff's corroborated testimony regarding his fall at work and the medical records that causally relate his injuries and pain to such incident, the majority has erred in denying plaintiff compensation. Defendants have presented insufficient evidence to contradict plaintiff's version of his injury by accident, and have failed to show that his resulting injuries are not causally related. Thus, the majority erred in failing to interpret the evidence of record in the light most favorable to plaintiff, as directed by the courts. For these reasons, I respectfully dissent.
This 16th day of February 2004.
S/_____________ THOMAS J. BOLCH COMMISSIONER
Opinion of the Court
2. All parties are properly before the North Carolina Industrial Commission, and the Industrial Commission has jurisdiction over this matter.
3. An employment relationship existed between plaintiff and defendant-employer on March 10, 2001.
4. Builders Mutual Insurance Company was the carrier on the risk.
5. All parties have been properly designated, and there is no question as to misjoinder or nonjoinder of parties.
6. Plaintiff alleges that he sustained an injury by accident arising out of and in the course of his employment on March 10, 2001.
7. Plaintiff's average weekly wage on March 10, 2001 was $689.99. This yields a compensation rate of $460.02.
8. The parties entered the following exhibits into the evidence of record at the hearing before the Deputy Commissioner:
a. Stipulated Exhibit 1 — plaintiff's medical records and discovery responses
b. Stipulated Exhibit 2 — employee timecards
c. Stipulated Exhibit 3 — plaintiff's recorded statement
d. Stipulated Exhibit 4 — correspondence
e. Stipulated Exhibit 5 — blueprints of the Dolittle house
f. Plaintiff's Exhibit 1 — a photograph of Dolittle job site
9. The issues before the Commission are whether plaintiff sustained an injury by accident in the course and scope of his employment on March 10, 2001, and if so, to what compensation is plaintiff entitled.
2. Prior to March 2001, plaintiff had a long history of chronic low back pain following surgery on his lumbar spine in the early 1970s. Plaintiff also sustained a workers' compensation injury to his left knee on September 13, 2000 for which defendants admitted liability (I.C. No. 074798).
3. Plaintiff returned to work as a lead painter for defendants following his previous admittedly compensable left knee injury. However, in early March 2001 plaintiff was having difficulties at work due to his knee injury.
4. Plaintiff's supervisor, Mark Kirkpatrick, and plaintiff met on March 8, 2001 and at that time plaintiff agreed to take some time off to rest his knee. Plaintiff was instructed by Mr. Kirkpatrick to stay home and not work through at least Tuesday March 13, 2001, at which time he and Mr. Kirkpatrick would meet again and discuss whether plaintiff was going to report to a doctor for his knee complaints or remain out of work for an additional period of time.
5. Plaintiff was not authorized to work in any capacity for defendants until after the March 13, 2001 meeting with his supervisor.
6. The evidence differs regarding whether defendants had in place in March 2001 policies against working on the weekends, or whether employees needed advance approval before working on the weekend, or whether employees were permitted to work alone on a job site.
7. Timecards substantiate plaintiff's testimony that it was a regular occurrence for employees to work on the weekends. However, the testimony from plaintiff's coworkers and his supervisor confirm that employees knew they were not to work alone on a weekend without prior supervisory approval.
8. Mr. Kirkpatrick testified, in an opinion deemed to be credible and accepted as fact by the Commission, that employees were required to get prior supervisory approval before working on the weekend. It is undisputed from the evidence that no overtime work was permitted on the Dolittle property, the job site where plaintiff was working in March 2001.
9. On Friday, March 9, 2001, plaintiff spoke with a co-worker, Christopher Haywood, about Mr. Haywood's plans to work at the Dolittle site the following day. This would not have been overtime work for Mr. Haywood, as he had missed a day or two from work that week due to illness. Plaintiff informed Mr. Haywood that he would meet Mr. Haywood the following morning at the Dolittle site. Plaintiff's intention in meeting Mr. Haywood on Saturday, March 10, 2001 was to inform Mr. Haywood about recent paint color changes and to pick up plaintiff's personal tools.
10. Neither Mr. Haywood nor plaintiff requested permission from Mr. Kirkpatrick or Dave Opalecky, the construction supervisor on the Dolittle site, to be at the Dolittle site on Saturday or for Mr. Haywood to work alone at the site on Saturday March 10, 2001. Further, pursuant to plaintiff's March 8, 2001 conversation with Mr. Kirkpatrick, plaintiff was not supposed to be at work at all before March 13, 2001.
11. Plaintiff and his then-fiancée (now wife) went to the Dolittle house on Saturday morning, March 10, 2001. Mr. Haywood was not present, and for personal reasons never worked at all that day.
12. Plaintiff, however, wanted to get his tools from inside the house, so he retrieved the house keys and unlocked the front door. Plaintiff testified that he was unable to open the door more than a couple of inches because a piece of wood had apparently fallen down and was wedged behind the door. Plaintiff testified that he pushed harder against the door and it suddenly flew open, causing him to stumble inside and trip over some extension cords that were lying in a heap on the floor.
13. Plaintiff first reported to the emergency room at Cannon Memorial Hospital on March 10, 2001 where he reported that he fell down two flights of stairs. X-rays revealed advanced degenerative disc disease at C5-6 and C6-7. In addition, there was a mild compression fracture noted at T5, T7, and T9, "[a]ge indeterminate." A subsequent bone scan done a few weeks later was benign, indicating the compression fracture was not acute and therefore did not result from a fall on March 10, 2001.
14. Plaintiff reported to Dr. Joseph D. Barker, his internist, on March 17, 2001 with diffuse pain in his neck, upper back, mid-back, and left knee. Dr. Barker suspected musculoskeletal pain from soft tissue contusions sustained in the fall plaintiff reported.
15. Plaintiff continues to treat with Dr. Barker and he has also treated with the V.A. hospital. Dr. Barker does not feel plaintiff is capable of working at his former job as a painter, and likely not at all. Dr. Barker attributes plaintiff's symptoms and complaints to a fall at work on March 10, 2001. However, the Commission gives no weight to Dr. Barker's testimony on the causation of plaintiff's complaints, because Dr. Barker's opinion was based upon plaintiff's version of what transpired on March 10, 2001, which as found herein is not credible.
16. Plaintiff testified at the Deputy Commissioner hearing that his feet got tangled in the extension cords and that he proceeded to fall into the stairwell, which was more than 13 feet from the front door, and he fell and rolled down two flights of stairs. No one witnessed this event; however, in his recorded statement taken on March 23, 2001, plaintiff told the adjuster that his fiancée had seen him fall and had even helped him up.
17. At the hearing before Deputy Commissioner Pfeiffer, plaintiff testified that his fiancée was still in the truck when he fell. Plaintiff's fiancée was not present and did not testify at the hearing.
18. Shortly after the fall, plaintiff testified that his fiancée took a photograph of the entrance to the Dolittle house. This photograph was admitted into the evidence of record at the hearing before the Deputy Commissioner and shows the extension cords by the stairwell.
19. However, the photograph, on its face, is not persuasive evidence to prove that plaintiff fell down the stairwell. This photograph could have been taken at any time or on any date. The photograph does not show any extension cords or other items lying directly in front of the doorway.
20. The Full Commission finds according to the credible evidence of record that defendants' employees were diligent about cleaning up job sites, and the cleanliness of defendants' worksites was "exceptional." In addition, employees always cleaned up the job sites on Fridays, and specifically, the employees cleaned the Dolittle job site on Friday, March 9, 2001 prior to leaving the premises.
21. Defendants' lead carpenter testified, in testimony that was deemed credible by the Deputy Commissioner and accepted as fact by the Full Commission, that there was not a board or piece of wood in front of the doorway when he left work on Friday evening. This carpenter was one of the first employees on the Dolittle job site on Monday morning, March 12, 2001, and he did not see a board or extension cords in front of the doorway, but he did find pieces of boards on the landings of the stairwell.
22. The stairwell in the Dolittle house was more than 13 feet from the doorway. Based upon a totality of the evidence and testimony presented, and also taking into account plaintiff's demeanor and credibility, it seems unlikely that, even if the door was wedged closed by a board and even if it did take force for him to open the door, plaintiff then stumbled 13 feet into the house and got tangled up in extension cords and fell into and down a stairwell.
23. Plaintiff's version of his fall on Saturday, March 10, 2001 was not deemed credible by the Deputy Commissioner and is not accepted as credible by the Full Commission. Therefore, plaintiff failed to prove by the greater weight of the evidence that he sustained a compensable injury by accident of March 10, 2001.
2. In that, plaintiff has not proven that he sustained a compensable injury by accident within the North Carolina Workers' Compensation Act, he is entitled to no benefits under the Act. N.C. Gen. Stat. §
2. Each party shall bear its own costs of this proceeding.
This the ___ day of January 2004.
S/______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER
CONCURRING:
S/_____________ PAMELA T. YOUNG COMMISSIONER
DISSENTING:
S/_____________ THOMAS J. BOLCH COMMISSIONER
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Case-law data current through December 31, 2025. Source: CourtListener bulk data.