211 N.C. App. 282
N.C. Ct. App.2011Background
- Heatherly was injured July 12, 2004 while working as a framer/drywall hanger at a Ridge Mountain Brevard construction site for CDS Drywall.
- He was in an unfinished garage at the top of a mountain, near a metal roof, weather vanes, and electrical drop cord; lightning struck.
- Treating hospital records showed right-hand fractures (4th and 5th metacarpals) and pain in the left foot; he received morphine and a splint.
- Defendants denied workers’ compensation; he did not receive further hand treatment due to lack of coverage, and did not work after the injury until January 3, 2005.
- The deputy commissioner awarded past/future medical benefits and temporary total disability; on remand, the Full Commission found increased risk under Pope and awarded TT disability and medical benefits; defendants appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff proved increased risk of lightning injury arising from employment | Heatherly's job exposed him to conditions increasing lightning risk | Hollingsworth/Stonewood contended no expert proof of increased risk | Yes; non-expert evidence supported increased-risk finding under Pope |
| Whether plaintiff proved temporary total disability for 12 July 2004–2 January 2005 | Heatherly’s pain and hand injury prevented any work | No medical proof of total disability beyond pain testimony | Yes; pain testimony plus medical records sufficient under Russell to establish TT disability |
| Whether defendants must provide all reasonably necessary medical treatment under 97-25 | Additional orthopedic evaluation was needed; treatment would lessen disability | No further treatment because hand had improved | Yes; Commission properly ordered additional medical treatment reasonably related to the compensable injury |
Key Cases Cited
- Pope v. Goodson, 249 N.C. 690 (1959) (increased-risk test for lightning injuries; no bright-line expert requirement)
- Bryan v. T.A. Loving Co., 222 N.C. 724 (1943) (compensable injuries must arise out of and in the course of employment)
- Reavis v. Reavis, 82 N.C. App. 77 (1986) (non-expert evidence can support disability findings under Russell prong I)
- Matthews v. Petroleum Tank Service, Inc., 108 N.C. App. 259 (1992) (employee's pain testimony may support disability without expert proof)
- Knight v. Wal-Mart Stores, Inc., 149 N.C. App. 1 (2002) (pain and credibility can establish total disability under Russell)