{ "id": 11867729, "name": "JERRY THARP, Employee-Plaintiff v. SOUTHERN GABLES, INC., Self-Insured Employer, (CONSOLIDATED ADMINISTRATORS, INC., Servicing Agent), Defendant", "name_abbreviation": "Tharp v. Southern Gables, Inc.", "decision_date": "1997-02-18", "docket_number": "No. COA96-573", "first_page": "364", "last_page": "372", "citations": [ { "type": "official", "cite": "125 N.C. App. 364" } ], "court": { "name_abbreviation": "N.C. Ct. 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App.", "case_ids": [ 11915261 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/121/0048-01" ] }, { "cite": "428 S.E.2d 480", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "487" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 601", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526050 ], "year": 1993, "pin_cites": [ { "page": "611" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0601-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-88.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 }, { "cite": "263 S.E.2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "34" } ], "opinion_index": 0 }, { "cite": "45 N.C. App. 547", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550105 ], "year": 1980, "pin_cites": [ { "page": "548-49" } ], "opinion_index": 0, "case_paths": [ "/nc-app/45/0547-01" ] }, { "cite": "327 S.E.2d 887", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 327", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719235, 4724236, 4726804, 4722549, 4725112 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0327-05", "/nc/313/0327-04", "/nc/313/0327-03", "/nc/313/0327-01", "/nc/313/0327-02" ] }, { "cite": "322 S.E.2d 638", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "641" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 540", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525870 ], "year": 1984, "pin_cites": [ { "page": "545" } ], "opinion_index": 0, "case_paths": [ "/nc-app/71/0540-01" ] }, { "cite": "463 S.E.2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "342 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796106, 796012, 796081, 795953, 796029 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/342/0191-02", "/nc/342/0191-03", "/nc/342/0191-05", "/nc/342/0191-01", "/nc/342/0191-04" ] }, { "cite": "459 S.E.2d 31", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "119 N.C. App. 491", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916104 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/119/0491-01" ] }, { "cite": "468 S.E.2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "121 N.C. App. 570", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918820 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc-app/121/0570-01" ] }, { "cite": "463 S.E.2d 302", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "304" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 607", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917026 ], "year": 1995, "pin_cites": [ { "page": "610" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0607-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-12", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1991, "opinion_index": 0 } ], "analysis": { "cardinality": 807, "char_count": 19571, "ocr_confidence": 0.753, "pagerank": { "raw": 2.49360506056527e-07, "percentile": 0.8087965746265516 }, "sha256": "360b380b4b78bd29f246e9ca18c6a6c0862b31500593f139654fe199ccb0cbdf", "simhash": "1:ad7de8c21c7a4797", "word_count": 3061 }, "last_updated": "2023-07-14T22:18:02.941264+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHN and McGEE concur." ], "parties": [ "JERRY THARP, Employee-Plaintiff v. SOUTHERN GABLES, INC., Self-Insured Employer, (CONSOLIDATED ADMINISTRATORS, INC., Servicing Agent), Defendant" ], "opinions": [ { "text": "SMITH, Judge.\nPlaintiff was employed as an independent contractor performing roofing work on Southern Gables\u2019 projects. On 1 July 1994, plaintiff fell from a roof to the ground. Plaintiff testified that he arrived at work at approximately 8:00 a.m. and fell at 2:00 p.m. Plaintiff claims he became dizzy just prior to his fall and has no other memory of the incident.\nPlaintiff was transported to and received treatment from Moses H. Cone Memorial Hospital (Moses Cone Hospital), where he was diagnosed as suffering a T3-T4 fracture dislocation with complete paraplegia, bilateral hemopneumothorax and seizure disorder. On 1 July 1994, Dr. Eisner at Moses Cone Hospital performed a surgical decompression and stabilization of thoracic spinal fractures. Plaintiff received occupational therapy from Moses H. Cone Health Care Services, as well as Moses H. Cone Rehabilitation Center. Plaintiff also received treatment after his fall from Dr. Joseph W. Stiefel at Guilford Neurologic Associates. Plaintiff was discharged from Moses H. Cone Rehabilitation Center on 8 September 1994.\nThe record shows that prior to plaintiffs fall, he had a history of alcohol withdrawal seizures since 1988. Plaintiff was diagnosed as a chronic alcohol user, and smoked marijuana daily. Plaintiffs wife testified that plaintiffs binges occurred three to four times per month and that these binges lasted up to a week. Plaintiff had previously received treatment for alcohol withdrawal seizures from Moses Cone Hospital and Wesley Long Community Hospital (Wesley Long Hospital), as well as from Dr. Jeffrey J. Schmidt, a neurologist. Plaintiff admitted to a nine day drinking binge that ended 26 June 1994, four days prior to his injury. Plaintiff also has a medical history of seizures unrelated to alcohol intake. Defendant contends that plaintiffs claim was denied because plaintiff fell from the roof because of an idiopathic condition, specifically a seizure which was pre-existing and not connected to his employment.\nDeputy Commissioner Tamara N. Nance heard the matter on 1 December 1994. Prior to the hearing, the parties entered into a pretrial agreement, where an employment relationship between plaintiff and Southern Gables and plaintiffs medical records were stipulated. The deputy commissioner issued an opinion and award in which she concluded that plaintiff sustained an injury by accident arising out of and in the course of his employment with defendant when he fell from the roof on 1 July 1994. Deputy Commissioner Nance disagreed with defendant\u2019s argument that plaintiffs claim is barred under the North Carolina General Statutes section 97-12 intoxication defense. N.C. Gen. Stat. \u00a7 97-12 (1991). Defendant appealed to the Full Commission.\nOn 8 March 1996, the Full Commission issued an opinion and award affirming Deputy Commissioner Nance\u2019s decision regarding whether plaintiff\u2019s injury was proximately caused by his intoxication and plaintiff\u2019s average weekly wage. Further, the Full Commission found that defendant\u2019s intoxication defense pursuant to section 97-12 was \u201cgrounded in unfounded litigiousness\u201d pursuant to North Carolina General Statutes Section 88.1 and awarded plaintiff attorney\u2019s fees for the cost of the proceeding at the deputy commissioner level as well as $500.00 for costs. The Full Commission did not find that plaintiff required attendant medical care, and accordingly denied plaintiff\u2019s wife\u2019s claim for nursing services. Defendant appeals from the opinion and award.\nDefendant argues first that the Full Commission erred in failing to find that plaintiff\u2019s injuries were proximately caused by his intoxication. We disagree.\nThe standard of review in cases appealed from the Industrial Commission \u201cis limited to a determination of whether the Commission\u2019s findings of fact are supported by competent evidence and whether the conclusions of law are supported by the findings.\u201d Ross v. Mark\u2019s Inc., 120 N.C. App. 607, 610, 463 S.E.2d 302, 304 (1995). Accordingly, if competent evidence exists, the Industrial Commission\u2019s findings of fact are conclusive on appeal even though there may be evidence which would support a contrary finding. Lowe v. BE&K Construction Co., 121 N.C. App. 570, 468 S.E.2d 396 (1996); Fletcher v. Dana Corporation, 119 N.C. App. 491, 459 S.E.2d 31, disc. review denied, 342 N.C. 191, 463 S.E.2d 235 (1995).\nIt is defendant\u2019s contention that it is relieved from liability under the Workers\u2019 Compensation Act because plaintiff\u2019s injury was proximately caused by his intoxication. North Carolina General Statutes section 97-12 of the North Carolina Workers\u2019 Compensation Act states:\nNo compensation shall be payable if the injury or death to the employee was proximately caused by:\n(1) His intoxication, provided the' intoxicant was not supplied by the employer or his agent in a supervisory capacity to the employee ....\nDefendant-employer has the burden of proving the affirmative defense of intoxication. Anderson v. Century Data Systems, 71 N.C. App. 540, 545, 322 S.E.2d 638, 641 (1984), disc. review denied, 313 N.C. 327, 327 S.E.2d 887 (1985). Defendant must \u201cprove only that the employee\u2019s intoxication was more probably than not a cause in fact of the accident resulting in injury to the employee.\u201d Id.\nProximate cause has been defined as follows:\n(1) in a natural and continuous sequence and unbroken by any new and independent cause produces an injury, (2) without which the injury would not have occurred, and (3) from which a person of ordinary prudence could have reasonably foreseen that such a result, or some similar injurious result, was probable under the facts as they existed.\nGoode v. Harrison, 45 N.C. App. 547, 548-49, 263 S.E.2d 33, 34 (1980). In the case sub judice, the Industrial Commission specifically found that:\n7. Plaintiff suffers from an idiopathic seizure disorder accentuated by alcohol and poor compliance with medication. However, there is insufficient evidence of record to find by its greater weight that plaintiff\u2019s fall from the roof on 1 July 1994 was caused by an alcohol withdrawal seizure, or any other kind of seizure for that matter.\nThe Commission further found that:\n12. This case is one of first impression in North Carolina, in that defendant\u2019s defense in this case deals with intoxication that is not contemporaneous with the employee\u2019s injury by accident, more specifically alcohol withdrawal seizures allegedly resulting in plaintiff\u2019s injury by accident. The first impression nature of this case results from the fact that past cases of precedential value have dealt only with fact scenarios under which the intoxication and the injury were contemporaneous. Defendant\u2019s defense of this claim is not persuasive or reasonable considering past case law, that the employee had a zero blood alcohol level at the time of the accident, and that there is no other evidence of plaintiff\u2019s intoxication contemporaneous with his injury by accident. Therefore, defendant\u2019s defenses of intoxication pursuant to N.C. Gen. Stat. \u00a7 97-12 as it has been interpreted to date by the courts is grounded in unfounded litigiousness pursuant to N.C. Gen. Stat. \u00a7 97-88.1.\nDefendant argues its evidence shows that plaintiff had a history of alcohol withdrawal seizures as a result of his alcohol abuse and intoxication. Defendant references plaintiff\u2019s medical records from Moses Cone Hospital which indicate a history of seizures which are related to alcohol consumption, and the testimony from Dr. Schmidt, who upon evaluating plaintiff noted a history of alcohol withdrawal seizures. Defendant argues that as Dr. Schmidt\u2019s testimony indicated that alcohol withdrawal seizures generally occur two to three days after ceasing to drink, and that they can also occur up to one week afterward, that plaintiff\u2019s injury was noncompensable. Moreover, defendant contends that plaintiff\u2019s own testimony acknowledged that he may have had a seizure which caused his fall on 1 July 1994, since he admitted to feeling dizzy prior to his fall.\nNotwithstanding defendant\u2019s claims that plaintiff experienced an alcohol withdrawal seizure which caused his fall, competent evidence in the record supports the Commission\u2019s findings that plaintiff did not have a seizure. Contrary to defendant\u2019s assertions, Dr. Schmidt\u2019s testimony reveals that he did not have an opinion as to whether plaintiff had a seizure, alcohol induced or not. He testified as follows:\nQ: Doctor, based on the times you saw Mr. Tharp and the history he gave you and your treatment, I want you to make some assumptions. I want you to assume that he was engaged in one of his alcohol drinking binges for approximately nine or ten days ending on June 25th or June 26th of 1994 and that he did not drink thereafter from either June 25th or 26th through July 1st of \u201994, approximately four or five days; that he was on a roof on July 1st of \u201994, remembers being dizzy and does not remember much else; that he fell from that roof and hurt himself.\nAnd assume that he was having seizure-like activity in the Emergency Room on that day \u2014 on July 1st of \u201994 \u2014 after his fall. And assume that he had approximately seven or eight seizures per year between 1989 and 1994, and assume that he was not taking his medications for approximately or at least one year before July 1st of 1994 ... Do you have an opinion as to whether Mr. Tharp had a seizure on the roof that day \u2014 on July 1st of \u201994?\nA: (By the witness) No I don\u2019t.\nFurther, defendant alleges that plaintiff\u2019s own testimony suggests that he had a seizure on 1 July 1994; however, upon review of the record, the most plaintiff would say was that it was possible that it was a seizure but he did not know \u2014 plaintiff went on to suggest that it \u201c[c]ould have been the heat, I don\u2019t know\u201d as his testimony was that it was around ninety (90) degrees while he was working. Thus, from a careful review of the record, no evidence exists that plaintiff was having an alcohol withdrawal seizure. Moreover, the incidents relied upon by defendant as medical evidence of plaintiff\u2019s prior seizures did not occur more than forty-eight (48) hours after drinking. Additionally, Dr. Schmidt stated that it would not be normal to have an alcohol withdrawal seizure after more than three days and that an alcohol withdrawal seizure probably would not happen five days after consuming alcohol. Plaintiff\u2019s blood alcohol level was 0.000 at the time of the incident. Accordingly, the Commission did not err in finding that plaintiff\u2019s injury was not proximately caused by an alcohol withdrawal seizure.\nDefendant\u2019s second argument is that the Commission erred in concluding that plaintiff\u2019s average weekly wage was $455.18. Defendant alleges that this amount was derived from plaintiff\u2019s unauthenticated and incorrectly admitted hearsay evidence. The items which defendant contends are hearsay evidence are records prepared by Jill and Ronald Lowery, defendant, plaintiff and several Federal Forms 1099.\nHowever, a review of relevant case law reveals that the records are admissible under the business records exception to the hearsay rule. The business records exception to the hearsay rule states as follows:\nRecords of Regularly Conducted Activity. \u2014 A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, . . . made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of the information or the method or circumstances of preparation indicated lack of trustworthiness. . . .\nN.C.R. Evid. 803(6).\nAt the hearing, plaintiff testified as to the records\u2019 authenticity and that the records were made at or near the time of the transaction; thus, the records were properly admitted into evidence under the business records exception. See State v. Rupe, 109 N.C. App. 601, 611, 428 S.E.2d 480, 487 (1993) (holding that a witness familiar with the business records and the circumstances under which they were made may establish the authenticity of the records; that the records need not be authenticated by the person who actually made them; and that if the records are found to have been made at or near the time of the particular transaction, the authenticating person\u2019s testimony is not needed). Consequently, as the Commission\u2019s findings of fact and conclusions of law regarding plaintiff\u2019s average weekly wage were based on competent evidence in accordance with the North Carolina Rules of Evidence, defendant\u2019s argument is without merit.\nDefendant\u2019s third argument is that the Commission incorrectly awarded plaintiff attorney\u2019s fees. We disagree.\nOur Court may review de novo whether defendant had a reasonable ground to bring a hearing. Troutman v. White & Simpson, Inc., 121 N.C. App. 48, 464 S.E.2d 481 (1995), disc. review denied, 343 N.C. 516, 472 S.E.2d 26 (1996). \u201cThis requirement ensures that defendants do not bring hearings out of \u2018stubborn, unfounded litigiousness.\u2019 \u201d Id. at 51, 464 S.E.2d at 484 (quoting Beam v. Floyd\u2019s Creek Baptist Church, 99 N.C. App. 767, 768, 394 S.E.2d 191, 192 (1990)). In the instant action, the Commission stated that \u201cdefendant\u2019s defense of this claim is grounded in unfounded litigiousness pursuant to N.C. Gen. Stat. \u00a7 97-88.1.\u201d North Carolina General Statutes section 97-88.1 states that:\nIf the Industrial Commission shall determine that any hearing has been brought, prosecuted, or defended without reasonable ground, it may assess the whole cost of the proceeding including reasonable fees for defendant\u2019s attorney or plaintiff\u2019s attorney upon the party who has brought or defended them.\nN.C. Gen. Stat. \u00a7 97-88.1 (1991).\nIn this action, both Deputy Commissioner Nance and the Full Commission found that plaintiff did not have a seizure, and that plaintiff suffered \u201can unexplained fall from the roof of a house.\u201d Thus, defendant\u2019s reliance upon section 97-12 of the North Carolina General Statutes was unreasonable. Further, the evidence reveals that defendant denied plaintiff compensation prior to receiving his medical records, stating that because plaintiff had suffered seizures \u201cover the years\u201d that this was enough to deny the claim. Defendant\u2019s adjuster did this despite being aware of relevant case law suggesting otherwise. See DeVine v. Steel Co., 227 N.C. 684, 44 S.E.2d 77 (1947); Rewis v. Insurance Co., 226 N.C. 325, 38 S.E.2d 97 (1946). Moreover, despite defendant\u2019s inability to cite authority to support its position at a hearing before Deputy Commissioner Nance, defendant continued to argue that section 97-12 applied despite having no evidence that plaintiff actually suffered a seizure, much less one proximately caused by intoxication. Accordingly, when defendant took a position contrary to established case law, his actions were unreasonable and litigious. See Troutman, 121 N.C. App. 48, 464 S.E.2d 481. Therefore, we hold the Commission correctly concluded that defendant did not have reasonable grounds for maintaining a defense under section 97-12 of the General Statutes.\nFor all of the reasons stated herein, the opinion and award of the North Carolina Industrial Commission is affirmed.\nAffirmed.\nJudges JOHN and McGEE concur.", "type": "majority", "author": "SMITH, Judge." } ], "attorneys": [ "Robert S. Hodgman & Associates, by Robert S. Hodgman, for plaintiff-appellee.", "Maupin Taylor Ellis & Adams, PA., by Timothy S. Riordan and M. Reid Aeree, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "JERRY THARP, Employee-Plaintiff v. SOUTHERN GABLES, INC., Self-Insured Employer, (CONSOLIDATED ADMINISTRATORS, INC., Servicing Agent), Defendant\nNo. COA96-573\n(Filed 18 February 1997)\n1. Workers\u2019 Compensation \u00a7 127 (NCI4th)\u2014 fall from roof\u2014 not caused by alcohol seizure\nThe Industrial Commission did not err in a workers\u2019 compensation action arising from plaintiff\u2019s fall from a roof by finding that plaintiff\u2019s injury was not proximately caused by an alcohol withdrawal seizure where plaintiff had a history of alcohol seizures and admitted to a drinking binge that ended four days prior to his injury. Upon a careful review of the record, no evidence exists that plaintiff was having an alcohol withdrawal seizure. A neurologist\u2019s testimony revealed that he did not have an opinion as to whether plaintiff had a seizure, alcohol induced or not; the most plaintiff would say in his testimony was that it was possible that it was a seizure but he did not know, suggesting that it could have been the heat; the incidents relied upon by defendant as medical evidence of prior seizures did not occur more than forty-eight hours after drinking; and the neurologist stated that it would not be normal to have an alcohol withdrawal seizure after more than three days and that an alcohol withdrawal seizure probably would not happen five days after consuming alcohol; and plaintiffs blood alcohol level was at 0.000 at the time of the incident.\nAm Jur 2d, Workers\u2019 Compensation \u00a7 256.\n2. Workers\u2019 Compensation \u00a7 387 (NCI4th)\u2014 average weekly wage \u2014 evidence\u2014business records exception\nThe Industrial Commission did not err in a workers\u2019 compensation action by concluding that plaintiffs average weekly wage was $455.18 where defendant alleged that this amount was derived from plaintiffs unauthenticated and incorrectly admitted hearsay evidence, but the records are admissible under the business records exception to the hearsay rule. Plaintiff testified as to the records\u2019 authenticity and that the records were made at or near the time of the transaction. Consequently, the Commission\u2019s findings of fact and conclusions of law were based on competent evidence in accordance with the North Carolina Rules of Evidence. N.C.G.S. \u00a7 8C-1, Rule 803(6).\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 582-585.\nComment Note. \u2014 Hearsay evidence in proceedings before state administrative agencies. 36 ALR3d 12.\nAdmissibility of physician\u2019s testimony as to patient\u2019s statements or declarations, other than res gestae, during medical examination. 37 ALR3d 778.\n3. Workers\u2019 Compensation \u00a7 476 (NCI4th)\u2014 fall from roof\u2014 allegations of alcoholic seizure \u2014 unfounded litigionsness \u2014attorney\u2019s fees\nThe Industrial Commission correctly awarded plaintiff attorney\u2019s fees in a workers\u2019 compensation action where the Commission stated that defendant\u2019s defense was grounded in unfounded litigiousness. Both the deputy commissioner and the full Commission found that plaintiff did not have a seizure, but suffered from an unexplained fall from the roof of a house, so that defendant\u2019s reliance upon N.C.G.S. \u00a7 97-12 was unreasonable. Furthermore, the evidence reveals that defendant denied plaintiff compensation prior to receiving his medical records based on plaintiff\u2019s seizures \u201cover the years\u201d despite the adjuster being aware of relevant case law suggesting otherwise. Defendant continued to argue that N.C.G.S. \u00a7 97-12 applied at a hearing before a deputy commissioner, despite having no evidence that plaintiff actually suffered a seizure, much less one proximately caused by intoxication, and despite an inability to cite authority to support its position. When defendant took a position contrary to established case law, its actions were unreasonable and litigious. N.C.G.S. \u00a7 97-88.1.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 722, 725.\nAppeal by defendant from opinion and award entered 8 March 1996 by the North Carolina Industrial Commission. Heard in the Court of Appeals 30 January 1997.\nRobert S. Hodgman & Associates, by Robert S. Hodgman, for plaintiff-appellee.\nMaupin Taylor Ellis & Adams, PA., by Timothy S. Riordan and M. Reid Aeree, Jr., for defendant-appellant." }, "file_name": "0364-01", "first_page_order": 402, "last_page_order": 410 }