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NO.
COA06-1535
NORTH
CAROLINA COURT OF APPEALS
Filed:
16 October 2007
ANGELA KASHINO,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 447337
CAROLINA VETERINARY SPECIALISTS
MEDICAL SERVICES,
Employer,
ATLANTIC MUTUAL/GAB ROBINS,
Carrier,
Defendants.
Appeal
by plaintiff from opinion and award entered 22 August 2006 by the North
Carolina Industrial Commission. Heard
in the Court of Appeals 6 June 2007.
Bollinger
& Piemonte, PC, by Bobby L. Bollinger, Jr. and William C. Winebarger, for
plaintiff-appellant.
Hedrick
Eatman Gardner & Kincheloe, LLP, by Harmony Whalen Taylor, for
defendants-appellees.
GEER,
Judge.
Plaintiff
Angela Kashino appeals from the North Carolina Industrial Commission’s opinion
and award denying her claim for workers’ compensation benefits. The Commission concluded that plaintiff, who
suffers from Lyme disease, failed to carry her burden of demonstrating that her
illness was either a compensable injury by accident or an occupational disease. Because there is competent evidence supporting
the Commission’s finding that plaintiff failed to prove a causal connection
between her Lyme disease and her employment, we affirm the opinion and award of
the Commission.
At
the time of the hearing before the deputy commissioner in April 2005, plaintiff
was 26 years old. Several years
earlier, in January 2000, plaintiff began working as a veterinary technician
for defendant-employer Carolina Veterinary Specialists Medical Services. Before her job with defendant-employer,
plaintiff worked as a receptionist in a different animal hospital, but was not
involved in the treatment of animals.
Defendant-employer
provides both emergency and ongoing care to animals. Plaintiff worked primarily in the emergency department, where she
was responsible for a range of activities, including: carrying and restraining
animals, taking vital signs, doing blood work, taking x-rays, giving
medication, cleaning cages, and preparing animals for surgery. These and other tasks placed plaintiff in
prolonged direct physical contact with hundreds of animals.
Plaintiff
testified that she would occasionally spot ticks crawling on the floor or walls
of defendant-employer’s facility and also on the animals that she treated. She would occasionally find ticks on her
body during or after work. Plaintiff
specifically recalled that one day, in February 2001, she was treating an
injured dog named “Scooby Doo,” who was infested with ticks and fleas. According to plaintiff, when she returned
home after this shift, she and her husband discovered and removed two small
ticks attached to her shoulder.
Over
a year after this incident, in March or April 2002, plaintiff began
experiencing nausea, vomiting, and headaches while pregnant with her second
child. Plaintiff’s symptoms persisted
and worsened, such that in April 2003 she began missing substantial time at
work. She was treated by doctors
throughout this period, but it was not until April or May 2004 that plaintiff
was diagnosed with Lyme disease.
Following
the diagnosis of Lyme disease, plaintiff came under the care of Dr. Joseph
Jemsek, an internist specializing in infectious diseases. In his deposition, Dr. Jemsek explained that
Lyme disease is a tick-borne illness transmitted by deer or black-legged
ticks. He also indicated that current
medical evidence suggests that generally a tick must be attached to its host
for approximately 24 hours in order to transmit the Lyme disease-causing
bacteria.
After
hearing the evidence in this case, Deputy Commissioner George T. Glenn II concluded
that plaintiff was not entitled to workers’ compensation benefits — for either
an injury by accident or occupational disease — because she had failed to prove
a causal relationship between the Lyme disease and her job. On 22 August 2006, the Full Commission
adopted the deputy commissioner’s opinion and award with modifications. The Full Commission agreed that plaintiff
failed to prove a causal relationship between her condition and her job, but
also concluded that plaintiff failed to prove that her job placed her at an
increased risk of contracting Lyme disease.
Plaintiff timely appealed to this Court.
“[A]ppellate
review of an award from the Commission is generally limited to two issues: (1)
whether the findings of fact are supported by competent evidence, and (2)
whether the conclusions of law are justified by the findings of fact.” Johnson v. Southern Tire Sales &
Serv., 358 N.C. 701, 705, 599 S.E.2d 508, 512 (2004). The findings of the Commission are
conclusive on appeal when supported by competent evidence, even though there
may be evidence to support a contrary finding.
Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682,
684 (1982). “In weighing the evidence,
the Commission is the sole judge of the credibility of the witnesses and the
weight to be given to their testimony, and the Commission may reject entirely
any testimony which it disbelieves.” Hedrick
v. PPG Indus., 126 N.C. App. 354, 357, 484 S.E.2d 853, 856, disc. review
denied, 346 N.C. 546, 488 S.E.2d 801 (1997).
Plaintiff
first contends the Commission erred in concluding that she did not prove that
her employment placed her at an increased risk of contracting Lyme
disease. See Rutledge v.
Tultex Corp., 308 N.C. 85, 93-94, 301 S.E.2d 359, 365 (1983) (in order to
establish occupational disease under N.C. Gen. Stat. §97-53(13) (2005),
plaintiff must show “the employment exposed the worker to a greater risk of
contracting the disease than the public generally”); Minter v. Osborne Co.,
127 N.C. App. 134, 138, 487 S.E.2d 835, 838 (holding that “[s]ince there is no
evidence to support a finding that plaintiff was at an increased risk of insect
stings, the conclusion that the sting was an accident or injury arising out of
the employment is error and the award of benefits must be reversed”), disc.
review denied, 347 N.C. 401, 494 S.E.2d 415 (1997). While we agree that plaintiff submitted
sufficient expert testimony to support a finding of increased risk, we must
nonetheless affirm the Full Commission since it was entitled to conclude, as it
did, that plaintiff failed to prove a causal relationship between her
employment and the Lyme disease.
It
is well settled that, in order to establish a compensable occupational disease,
the employee must show “‘a causal connection between the disease and the
[claimant’s] employment.’“ Rutledge,
308 N.C. at 93, 301 S.E.2d at 365 (quoting Hansel v. Sherman Textiles,
304 N.C. 44, 52, 283 S.E.2d 101, 105-06 (1981)). Likewise, the worker must prove causation if he or she is to
recover based on the occurrence of an injury by accident: “An injury is
compensable as employment‑related if any reasonable relationship to
employment exists. Although the
employment‑related accident need not be the sole causative force to
render an injury compensable, the plaintiff must prove that the accident was a
causal factor by a preponderance of the evidence.” Holley v. ACTS, Inc., 357 N.C. 228, 231‑32, 581
S.E.2d 750, 752 (2003) (internal quotation marks and citations omitted). As explained by our Supreme Court, “[t]o
establish the necessary causal relationship for compensation under the Act,
‘the evidence must be such as to take the case out of the realm of conjecture
and remote possibility.’“ Chambers
v. Transit Mgmt., 360 N.C. 609, 616, 636 S.E.2d 553, 557 (2006) (quoting Gilmore
v. Hoke County Bd. of Educ., 222 N.C. 358, 365, 23 S.E.2d 292, 296 (1942)).
In
this case, plaintiff’s counsel asked Dr. Jemsek whether, “more likely than not,
there is a causal connection between the disease and [plaintiff’s] employment,”
and the doctor replied, “[t]hat’s a fair statement.” Dr. Jemsek nonetheless qualified this opinion on
cross-examination:
Q. Okay. Dr. Jemsek, is there any definitive way to know whether [plaintiff] contracted Lyme disease due to her job, or just to exposure of daily living, walking to get the mail?
A. No.
Q. Okay.
Just because a person is bitten by a tick, and that tick is attached for
a minor amount of time, does that, necessarily, immediately lead them to
contract Lyme disease?
A. No.
It depends on whether the tick is infected.
Q. Okay.
The only way to know if that tick is infected — or specifically, in this
case, if the tick that infected [plaintiff] was from her job — is if we had
that actual tick; is that correct?
A. Correct. Or if she can identify a tick she’s quite certain was acquired at
work, followed by an EM rash.
Q. Otherwise, if we don’t have that tick,
or those records that you’ve just described, it’s just speculation as to what
we think may have happened?
A. Right.
Q. Okay.
Dr. Jemsek, on [d]irect you testified that it was more likely than not,
that [plaintiff] contracted Lyme disease from her job —
A. No.
I didn’t say that. I said
that I think she was at an increased risk for exposure to ticks at a veterinary
clinic . . . .
. . . .
Q. And, by that same token, there’s no way
to know whether she had a primary infection, when she was a child, which was
reaggravated by something that occurred from a tick dropping from a tree while
she was getting the mail; is that right?
A. That’s right. Not necessarily a tick bite.
Something traumatic could have happened, or for whatever reason, she
lost immune containment, without a known tick bite.
(Emphasis
added.) The record thus shows that, on
the issue of causation, Dr. Jemsek’s testimony was at best equivocal.
From
the evidence presented, the Commission made the following findings:
17. Although plaintiff has testified that she
removed two small ticks from her person on February 15, 2001, it would be mere
speculation to attribute plaintiff’s Lyme Disease to this incident. There has been no evidence that the ticks
removed were of the appropriate variety of tick to cause Lyme Disease. Nor has evidence been presented that the
ticks removed on February 15, 2001 were attached a sufficient amount of time to
transmit Lyme Disease.
18. The undersigned find as fact that
plaintiff has failed to prove that there is a causal connection between
plaintiff’s Lyme disease and her employment.
Plaintiff
disputes these findings, contending that Dr. Jemsek’s testimony was
“sufficient” to carry her burden on the causation issue. While perhaps “sufficient,” the portions of
Dr. Jemsek’s testimony relied on by plaintiff are not dispositive in light of
the doctor’s other testimony that supports a finding of no causation.
As
stated on many occasions, the appellate “‘court’s duty goes no further than to
determine whether the record contains any evidence tending to support the
finding.’“ Adams v. AVX Corp.,
349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (quoting Anderson v. Lincoln
Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)). By combing the transcript, we could find
excerpts supportive of plaintiff’s position, but “this Court’s role is not to
engage in such a weighing of the evidence.”
Alexander v. Wal‑Mart Stores, Inc., 166 N.C. App. 563, 573,
603 S.E.2d 552, 558 (2004) (Hudson, J., dissenting), adopted per curiam,
359 N.C. 403, 610 S.E.2d 374 (2005).
Since there is competent evidence in the record supporting the finding
of no causal link, that finding must stand.
See Carroll v. Town of Ayden, 160 N.C. App. 637, 642-43,
586 S.E.2d 822, 826-27 (2003) (upholding Commission’s finding that plaintiff’s
hepatitis C infection was not caused by his employment where two doctors
presented contrasting testimony and noting, further, that appellate court
“cannot overrule the Commission’s findings of fact merely because plaintiff
presented evidence which would support a contrary finding”), aff’d per curiam,
359 N.C. 66, 602 S.E.2d 674 (2004).
Plaintiff
further argues that we should reject the Commission’s finding of no causation
by considering the circumstantial evidence before the Commission, as permitted
by our case law. See Booker
v. Duke Med. Ctr., 297 N.C. 458, 476, 256 S.E.2d 189, 200 (1979) (“In the
case of occupational diseases proof of a causal connection between the disease
and the employee’s occupation must of necessity be based on circumstantial
evidence.”); Keel v. H & V, Inc., 107 N.C. App. 536, 540, 421 S.E.2d
362, 366 (1992) (“Circumstantial evidence of the causal connection between the
occupation and the disease is sufficient. . . . Absolute medical certainty is
not required.”). According to plaintiff,
the circumstantial evidence in this case — namely, that she was frequently
exposed to ticks at work; that she was not significantly exposed to ticks
outside of work; and that she had no history of Lyme disease prior to working
for defendant-employer — is comparable to the evidence in Booker and Keel.
There
is, however, a dispositive difference between this case and Booker and Keel. In Booker and Keel, the Court
was reviewing an opinion and award in which the Commission found causation and
awarded benefits. Here, the Commission
found that there was no causal relationship between the employment and
plaintiff’s condition. Because the
record contains evidence to support that finding, and because we may not review
the weight or credibility of this evidence, we must affirm.
Affirmed.
Judges
CALABRIA and JACKSON concur.