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Gordon v. City of Durham11/5/2002
PUBLISHED
The City of Durham ("employer") appeals from the North Carolina Industrial Commission's ("Commission") opinion and award which reversed the opinion of the Deputy Commissioner and granted James Scott Gordon ("plaintiff") workers' compensation benefits. We affirm.
I. Facts
Plaintiff was employed as a firefighter for employer in August of 1997, working as a driver for Engine Company 10. Plaintiff also was self-employed since 1986 as an electrical contractor. On 27 August 1997 at approximately 11:00 p.m., plaintiff responded to the scene of a fire off of Garrett Road in Durham. While plaintiff was fighting the fire, an electrical panel began to smoke and subsequently exploded. Plaintiff was standing directly in front of the electrical panel when the explosion occurred. Plaintiff was not struck by debris or shrapnel from the explosion. The intensity of the flash from the explosion temporarily blinded plaintiff. Plaintiff's eyes subsequently readjusted and he was able to finish his shift. However, he had trouble focusing his eyes once he returned to the fire station later that day. Plaintiff left for vacation with his family the following day and his vision appeared normal. While he was driving, visual difficulties reoccurred. Plaintiff's visual problems continued upon returning from vacation that included difficulty seeing straight ahead. Initially, these incidents occurred every two to three days. Later, the incidents would occur every three to six weeks and would last for periods of 15 to 45 minutes.
Plaintiff sought medical care with his family physician, Dr. Curtis T. Eshelman. Dr. Eshelman diagnosed plaintiff with light trauma and blurred vision. Dr. Eshelman had no explanation for why plaintiff continued to have visual problems and referred plaintiff to Dr. Stuart McCracken, a licensed and board-certified ophthalmologist. Dr. McCracken examined plaintiff on 17 September 1997 and determined that plaintiff had experienced ophthalmic migraines. In Dr. McCracken's opinion, the 27 August 1997 accident was coincidental with and not the causative factor of plaintiff's visual problems. Plaintiff was referred to Dr. Michael L. Soo, a neurologist. On 13 October 1997, Dr. Soo examined and diagnosed plaintiff with repeated episodes of ophthalmic migraines following exposure to flash explosion. It was Dr. Soo's opinion that "it is more likely than not" that the 27 August 1997 accident was the cause of plaintiff's continued visual problems. Dr. Soo, with Dr. Eshelman's consent, referred plaintiff to Dr. Stephen Pollock, a neuro-ophthalmologist. Dr. Pollock examined plaintiff on 26 May 1998 and found no evidence of an ongoing eye disease. Dr. Pollock did, however, diagnose plaintiff with a form of acepholgic migraines. Dr. Pollock opined there was a temporal relationship between the onset of the plaintiff's symptoms and the bright flash of light that occurred on 27 August 1997. On 21 January 1999, plaintiff was examined by Dr. Barid S. Grimson, a neuro-ophthalmologist. In Dr. Grimson's opinion, there was a causal relationship between the 27 August 1997 explosion and plaintiff's visual problems and migraines.
On 18 August 1998, employer's physician, Dr. Stuart Manning, determined that plaintiff was medically disqualified for the position of firefighter. Plaintiff continued his self employment as an electrical contractor after being deemed medically disabled by the employer. On 7 October 1998, Fire Chief Otis Cooper, Jr. informed plaintiff that Employee Health Services had indicated that plaintiff was not medically able to perform the essential job functions of his position. Plaintiff was then given three options by employer: resignation, medical disability r
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