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Daugherty v. Mountain Construction Enterprises7/19/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Plaintiff, John Daugherty, appeals from an Opinion and Award of the full Industrial Commission ("full Commission") filed 4 March 2004 affirming, with minor modifications, the Opinion and Award of Deputy Commissioner Amy Pfeiffer denying plaintiff workers' compensation benefits. Plaintiff timely appealed the full Commission's Opinion and Award. Plaintiff had been employed by defendant, Mountain Construction Enterprises, Inc. ("Mountain Construction"), as a painter for approximately four years at the time of the incident which is the basis of this action. At the time of the incident, plaintiff was the lead painter for Mountain Construction and, in addition to painting, his duties included meeting with customers, advising on color selection, and supervising the painting crew. Plaintiff had suffered an admittedly compensable knee injury, which required surgery, prior to this incident and had received workers' compensation benefits for that injury. Plaintiff returned to work following his knee surgery shortly before this incident, but continued to have difficulty with his knee.
On 8 March 2001 the owner of Mountain Construction, Mark Kirkpatrick ("Kirkpatrick"), spoke to plaintiff at the Mountain Construction office regarding his continued difficulties. At that time Kirkpatrick told plaintiff to take his remaining vacation and not to report back to work until 12 March 2001. Kirkpatrick also advised plaintiff to contact his physician regarding the continuing problems with his knee.
During this time plaintiff had been working on the Doolittle house for Mountain Construction. The homeowner specifically had instructed Mountain Construction that he would not pay any overtime and, consequently, all of Mountain Construction's employees had received strict instructions that they were not to put in overtime on the project. Kirkpatrick also testified that there was an unwritten but well known company policy that work on weekends hadto be approved by himself or the job supervisor and that employees were not to work alone at job sites.
Plaintiff testified that on the evening of 9 March 2001, a Friday, he received a call from one of the painters on the Doolittle job, Chris Haywood ("Haywood"), asking if he could work on Saturday to make up time he had missed during the week due to illness. Plaintiff testified that he told Haywood that he could work that Saturday, but that there had been some changes in the paint colors that he would have to discuss with Haywood first. Plaintiff and Haywood agreed to meet at the Doolittle house between 7:30 and 8:00 am the next morning, 10 March 2001. Plaintiff testified that, in addition to discussing the paint colors with Haywood, he intended to go to the job site to pick up his tools. Neither plaintiff nor Haywood asked for or received permission from Kirkpatrick or the project supervisor to work on Saturday.
Plaintiff arrived at the job site at approximately 7:30 a.m. accompanied by his fiancee. Plaintiff did not see any vehicles or other indication that anyone else was there. Plaintiff then obtained the keys to the house and attempted to enter the house through the front door. Plaintiff testified that upon attempting to open the door it would only open one and a half to two inches. Plaintiff pushed the door using a little more force and the door opened slightly more. Plaintiff then used his body weight against the door which suddenly "flew open" causing him to stumble into the ho
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