{ "id": 4156984, "name": "KENNETH HEATHERLY, Employee, Plaintiff v. THE HOLLINGSWORTH COMPANY, INC., Employer, and STONEWOOD INSURANCE COMPANY, Carrier, Defendants", "name_abbreviation": "Heatherly v. Hollingsworth Co.", "decision_date": "2008-03-18", "docket_number": "No. COA07-222", "first_page": "398", "last_page": "402", "citations": [ { "type": "official", "cite": "189 N.C. App. 398" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "637 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637245 ], "year": 2006, "pin_cites": [ { "page": "257", "parenthetical": "holding that \"the 'increased risk' test and not the 'positional risk' rule is the law of the State\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/637/0251-01" ] }, { "cite": "619 S.E.2d 491", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633952 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "492", "parenthetical": "quoting McGill v. Lumberton, 215 N.C. 752, 754, 3 S.E.2d 324, 326 (1939)" }, { "page": "492" }, { "page": "494", "parenthetical": "remanding a case \"to the Court of Appeals for further remand to the Industrial Commission with instructions to find new facts and make new conclusions of law in accordance with the proper burden of proof\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/619/0491-01" ] }, { "cite": "639 S.E.2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637516 ], "year": 2007, "pin_cites": [ { "page": "432", "parenthetical": "quoting Sandy v. Stackhouse, Inc., 258 N.C. 194, 197, 128 S.E.2d 218, 221 (1962)" } ], "opinion_index": 0, "case_paths": [ "/se2d/639/0429-01" ] }, { "cite": "265 S.E.2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "391", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "300 N.C. 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559969 ], "year": 1980, "pin_cites": [ { "page": "167", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0164-01" ] }, { "cite": "180 N.C. App. 392", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8242544 ], "year": 2006, "pin_cites": [ { "page": "401", "parenthetical": "holding that \"the 'increased risk' test and not the 'positional risk' rule is the law of the State\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/180/0392-01" ] }, { "cite": "107 S.E.2d 524", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1959, "pin_cites": [ { "page": "528" }, { "page": "528" } ], "opinion_index": 0 }, { "cite": "249 N.C. 690", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621281 ], "weight": 2, "year": 1959, "pin_cites": [ { "page": "696" } ], "opinion_index": 0, "case_paths": [ "/nc/249/0690-01" ] }, { "cite": "3 S.E.2d 324", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1939, "pin_cites": [ { "page": "326" }, { "page": "326" } ], "opinion_index": 0 }, { "cite": "215 N.C. 752", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631990 ], "weight": 2, "year": 1939, "pin_cites": [ { "page": "754" }, { "page": "754" } ], "opinion_index": 0, "case_paths": [ "/nc/215/0752-01" ] }, { "cite": "360 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3788691 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "43", "parenthetical": "quoting McGill v. Lumberton, 215 N.C. 752, 754, 3 S.E.2d 324, 326 (1939)" }, { "page": "43" }, { "page": "46" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0041-01" ] }, { "cite": "642 S.E.2d 257", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2007, "pin_cites": [ { "page": "259", "parenthetical": "quotations, citations, and emphasis omitted" }, { "page": "259-60" }, { "page": "259-60" } ], "opinion_index": 0 }, { "cite": "182 N.C. App. 493", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8173561 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "496", "parenthetical": "quotations, citations, and emphasis omitted" }, { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0493-01" ] }, { "cite": "358 S.E.2d 380", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "382" } ], "opinion_index": 0 }, { "cite": "320 N.C. 499", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4729720 ], "year": 1987, "pin_cites": [ { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0499-01" ] }, { "cite": "128 S.E.2d 218", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "221" } ], "opinion_index": 0 }, { "cite": "258 N.C. 194", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560002 ], "year": 1962, "pin_cites": [ { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/nc/258/0194-01" ] }, { "cite": "361 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3736704 ], "year": 2007, "pin_cites": [ { "page": "184", "parenthetical": "quoting Sandy v. Stackhouse, Inc., 258 N.C. 194, 197, 128 S.E.2d 218, 221 (1962)" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0181-01" ] } ], "analysis": { "cardinality": 564, "char_count": 9502, "ocr_confidence": 0.753, "pagerank": { "raw": 4.621887471290392e-08, "percentile": 0.28979450153271485 }, "sha256": "47e64743bbcf2040ee916812a59ef59594fba8ca1147e964c6e22eec7adebbc2", "simhash": "1:852fe9893f77a03c", "word_count": 1541 }, "last_updated": "2023-07-14T16:47:52.494477+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and TYSON concur." ], "parties": [ "KENNETH HEATHERLY, Employee, Plaintiff v. THE HOLLINGSWORTH COMPANY, INC., Employer, and STONEWOOD INSURANCE COMPANY, Carrier, Defendants" ], "opinions": [ { "text": "ELMORE, Judge.\nKenneth Heatherly (plaintiff) was working as a drywall hanger for his brother, Randy Heatherly, the owner of CDS Drywall on 12 July 2004. As a result of inclement weather including rain and lightning, he and other workers ceased work on the project and took shelter in the garage. The garage was mostly finished but lacked doors. Plaintiff picked up a \u201clandline\u201d telephone located in the garage to call his brother and inform him that the crew had stopped work, but just as he dialed the number, a lightning strike occurred. The record is unclear whether the lightning struck plaintiff directly, came in through the telephone line, or simply charged the surrounding air and gave him a jolt. Plaintiff was knocked back several feet in the air, landed on his right side, and broke his right hand in the fall.\nPlaintiffs coworkers rushed him to the hospital, where his hand was x-rayed, revealing fractures in his fourth and fifth metacarpals. Plaintiff received morphine for the pain and a splint for his hand. When he went to Dr. G. Ruffin Benton after his release from the hospital, plaintiff received a referral to an orthopedist and was prescribed Percocet and Ibuprofen. However, because \u201chis workers\u2019 compensation papers were not in order,\u201d he was not able to see the orthopedist.\nPlaintiff filed a claim for workers\u2019 compensation benefits, which the Hollingsworth Company and its carrier, Stonewood Insurance Company (together, defendants) denied. Deputy Commissioner Kim Ledford filed an opinion and award on 6 January 2006, in which she awarded plaintiff past and future medical expenses; total disability compensation of $333.35 per week for the period of 12 July 2004 through 2 January 2005; attorneys\u2019 fees; and costs. Defendants appealed to the Full Commission, which affirmed the Deputy Commissioner\u2019s opinion with slight modifications. Defendants now appeal to this Court.\nDefendants first argue that because there was insufficient evidence that plaintiff\u2019s employment placed him at an increased risk of being struck by lightning, the Full Commission erred in finding and concluding that his injury arose out of and in the course of his employment. Because the Full Commission applied the incorrect standard in reaching its ultimate conclusion of law that plaintiff\u2019s injury arose out of and in the course of his employment, we reverse and remand for new findings of fact and conclusions of law.\n\u201c \u2018Whether an accident arose out of the employment is a mixed question of law and fact.\u2019 \u201d Frost v. Salter Path Fire & Rescue, 361 N.C. 181, 184, 639 S.E.2d 429, 432 (2007) (quoting Sandy v. Stackhouse, Inc., 258 N.C. 194, 197, 128 S.E.2d 218, 221 (1962)). A determination that a worker was, or was not, at an increased risk of injury is a conclusion of law. Dillingham v. Yeargin Construction Co., 320 N.C. 499, 502, 358 S.E.2d 380, 382 (1987).\n\u201cThis Court\u2019s review is limited to a consideration of whether there was any competent evidence to support the Full Commission\u2019s findings of fact and whether these findings of fact support the Commission\u2019s conclusions of law.\u201d Ard v. Owens-Illinois, 182 N.C. App. 493, 496, 642 S.E.2d 257, 259 (2007) (quotations, citations, and emphasis omitted). Additionally, if \u201cthere is some evidence of substance which directly or by reasonable inference tends to support the findings, this Court is bound by such evidence, even though there is evidence that would have supported a finding to the contrary.\u201d Id. at 496, 642 S.E.2d 257, 259-60 (quotations and citations omitted). However, \u201c[i]f the conclusions of the Commission are based upon a . . . misapprehension of the law, the case should be remanded so \u2018that the evidence [may] be considered in its true legal light.\u2019 \u201d Clark v. Wal-Mart, 360 N.C. 41, 43, 619 S.E.2d 491, 492 (2005) (quoting McGill v. Lumberton, 215 N.C. 752, 754, 3 S.E.2d 324, 326 (1939)).\nDefendants rely heavily on Pope v. Goodson, 249 N.C. 690, 107 S.E.2d 524 (1959). In Pope, our Supreme Court addressed the issue of when suffering a lightning strike is compensable under the Workers\u2019 Compensation statutes. Conducting a fairly thorough survey of cases from across the nation, the Court articulated the proper inquiry as follows: \u201cWas the danger to which [the employee] 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?\u201d Id. at 696, 107 S.E.2d at 528. Defendants, characterizing this inquiry as an \u201cincreased risk test in lightning strike cases,\u201d posit that plaintiff failed to prove, and that the Full Commission failed to find, any indication of increased risk.\nThe Full Commission found that plaintiff was working at a job site high on a mountain; that a thunderstorm arose; that plaintiff was organizing his equipment in order to leave the site; that plaintiff was located in an unfinished garage that had no doors; and that plaintiff received a charge or jolt from lightning. These findings are all supported by competent evidence, and are thus binding on this Court. See Owens-Illinois, 182 N.C. App. at 496, 642 S.E.2d at 259-60.\nWe agree with defendants that Pope sets forth the appropriate \u201cincreased risk\u201d test to. be applied in the present case. It therefore appears that the Full Commission did not consider the evidence \u201c \u2018in its true legal light.\u2019 \u201d See Clark, 360 N.C. at 43, 619 S.E.2d at 492 (quoting McGill, 215 N.C. at 754, 3 S.E.2d at 326). In conclusion of law 1, the Commission, quoting 1 Arthur Larson and Lex K. Larson, Larson\u2019s Workers\u2019 Compensation Law 5-1 (2000), stated, \u201cOne exception used to soften the increased-risk rule is the holding that if the harm, though initiated by an act of God, takes effect through contact of claimant with any part of the premises, causal connection with the employment is shown.\u201d (Quoting Defendants are correct that this is not the law in North Carolina; this Court has articulated an \u201cincreased risk\u201d test and rejected the \u201cpositional risk\u201d analysis adopted in many jurisdictions. See, e.g., Rose v. City of Rocky Mount, 180 N.C. App. 392, 401, 637 S.E.2d 251, 257 (2006) (holding that \u201cthe \u2018increased risk\u2019 test and not the \u2018positional risk\u2019 rule is the law of the State\u201d). Moreover, the Full Commission did not cite Pope and did not make the findings required to support a conclusion of law that plaintiff was at an increased risk of a lighting strike as compared to members of the \u201cpublic generally, in that neighborhood . . . .\u201d Pope, 249 N.C. at 696, 107 S.E.2d at 528.\nWhether or not the evidence supports a conclusion of law that plaintiff was at an increased risk of a lightning strike, it appears that the Full Commission reached its ultimate conclusion under a misapprehension of the law. Therefore, we reverse the Full Commission\u2019s opinion and award and remand the matter to the Full Commission to make new findings of fact and conclusions of law in accordance with the \u201cincreased risk\u201d principles set forth in Pope. See Clark, 360 N.C. at 46, 619 S.E.2d at 494 (remanding a case \u201cto the Court of Appeals for further remand to the Industrial Commission with instructions to find new facts and make new conclusions of law in accordance with the proper burden of proof\u201d).\nBecause we reverse and remand, we need not address defendants\u2019 remaining assignments of error. However, we reject defendants\u2019 contention that the Full Commission should have forced plaintiff to produce expert witness testimony on the cause of his hand injury. Defendants are correct that \u201cwhere the exact nature and probable genesis of a particular type of injury involves complicated medical questions far removed from the ordinary experience and knowledge of laymen, only an expert can give competent opinion evidence as to the cause of the injury.\u201d Click v. Freight Carriers, 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980) (citation omitted). However, we agree with the Full Commission that \u201c[t]his is not a situation that involves complex medical issues, such that expert testimony is needed to establish the cause and effect between being thrown up into the air and landing on a concrete floor and sustaining a hand fracture.\u201d\nReversed and remanded.\nJudges McGEE and TYSON concur.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Brooks, Stevens & Pope, PA., by Bambee B. Blake and Ginny P. Lanier, for defendants.", "Bazzle & Carr, P.A., by Ervin W. Bazzle, for plaintiff." ], "corrections": "", "head_matter": "KENNETH HEATHERLY, Employee, Plaintiff v. THE HOLLINGSWORTH COMPANY, INC., Employer, and STONEWOOD INSURANCE COMPANY, Carrier, Defendants\nNo. COA07-222\n(Filed 18 March 2008)\n1. Workers\u2019 Compensation\u2014 lightning strike \u2014 standard\nThe Full Commission erred in a workers\u2019 compensation case involving a lightning strike by applying the incorrect standard in reaching its ultimate conclusion. The evidence supported findings concerning plaintiff\u2019s location, but the Commission did not make the findings required to support a conclusion that plaintiff was at an increased risk of a lightning strike compared to members of the public generally.\n2. Workers\u2019 Compensation\u2014 expert medical testimony \u2014 hand injury after fall on concrete\nThe appellate court rejected defendant\u2019s contention in a workers\u2019 compensation case that plaintiff should have- been forced to produce expert testimony about his hand injury where plaintiff received an electrical charge from a lightning strike and landed on a concrete floor.\nAppeal by defendants from opinion and award filed 3 November 2006 by the Full Commission. Heard in the Court of Appeals 19 September 2007.\nBrooks, Stevens & Pope, PA., by Bambee B. Blake and Ginny P. Lanier, for defendants.\nBazzle & Carr, P.A., by Ervin W. Bazzle, for plaintiff." }, "file_name": "0398-01", "first_page_order": 430, "last_page_order": 434 }