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IN THE SUPREME COURT OF NORTH CAROLINA
No. 527A05
FILED: 17 NOVEMBER 2006
HUBERT CHAMBERS, Employee
v.
TRANSIT MANAGEMENT, Employer, SELF INSURED (COMPENSATION CLAIMS SOLUTIONS, Servicing Agent)
Appeal pursuant to N.C.G.S. §7A-30(2) from the decision of a
divided panel of the Court of Appeals, 172 N.C. App. 540, 616 S.E.2d 372
(2005), affirming an opinion and award filed 3 February 2004 by the North
Carolina Industrial Commission. On 3
November 2005, the Supreme Court allowed defendant’s petition for discretionary
review as to additional issues. Heard
in the Supreme Court 14 March 2006.
Sellers,
Hinshaw, Ayers, Dortch & Lyons, P.A., by Robert A. Whitlow and John F.
Ayers III, for plaintiff-appellee.
Smith
Law Firm, P.C., by John Brem Smith; and Hedrick Eatman Gardner & Kincheloe,
LLP, by Jennifer Ingram Mitchell and M. Duane Jones, for defendant-appellant.
Samuel
A. Scudder, S. Neal Camak, George W. Lennon, and Charles R. Hassell, Jr.,
Counsel for the North Carolina Academy of Trial Lawyers, amicus curiae.
PARKER, Chief Justice.
This case arises from proceedings before the North Carolina Industrial Commission (the Commission) and raises the issues of whether the Court of Appeals erred in affirming the Commission’s opinion and award concluding (i) that plaintiff’s ulnar neuropathy was a compensable occupational disease pursuant to N.C.G.S. §97-53(13), (ii) that plaintiff suffered a cervical spine injury as a result of a specific traumatic incident pursuant to N.C.G.S. §97-2(6), (iii) that plaintiff’s cervical spine condition was a compensable occupational disease pursuant to N.C.G.S. §97-53(13), and (iv) that plaintiff was entitled to continuing disability benefits pursuant to N.C.G.S. §97-29. Because we determine that the Commission applied an incorrect legal standard in finding plaintiff’s ulnar neuropathy and cervical spine condition to be compensable occupational diseases pursuant to N.C.G.S. §97-53(13) and the cervical spine condition to be a specific traumatic incident pursuant to N.C.G.S. §97-2(6), we reverse the decision of the Court of Appeals. We do not reach the question whether the Court of Appeals erred in affirming the Commission’s award of continuing disability benefits under N.C.G.S. §97-29.
The record shows that on 4 December 2000 plaintiff was
employed by Transit Management of Charlotte (defendant) as a bus driver. Plaintiff had been so employed for
approximately thirty years. Plaintiff
drove two types of buses, the Flexible bus and the Nova bus; during the course
of his routes plaintiff used both hands approximately ninety percent to one hundred
percent of the time. On 4 December 2000
plaintiff was assigned a new bus route.
At some point during his shift, plaintiff experienced severe pain in his
left arm, shoulder, and neck. Plaintiff
requested a relief driver approximately six hours into his shift.
Plaintiff did not notify defendant’s director of safety and
administration until 14 December 2000 and did not file an Employee Injury and
Illness Report until 18 December 2000. Plaintiff initially was unsure whether
his conditions were related to his employment or arose from other factors,
including yard work. An initial
diagnosis stated that plaintiff noted no specific “inciting event” causing
injury.
Following visits to his family physician and several
orthopedists, plaintiff was referred to Tim E. Adamson, M.D., a neurosurgeon, who
diagnosed plaintiff with a “double crush syndrome,” which he described as a
relationship between two injuries: a
left ulnar nerve entrapment affecting the elbow and a cervical spine condition
affecting the neck. Dr. Adamson
performed two surgeries on plaintiff.
Following a functional capacity evaluation indicating plaintiff’s level
of function at sedentary to light physical demand, Dr. Adamson gave plaintiff a
thirty percent permanent partial impairment rating for his left arm.
Plaintiff’s claim was heard by Deputy Commissioner Nancy W.
Gregory, who filed an opinion and award on 24 February 2003 denying plaintiff’s
claim for workers’ compensation benefits.
Plaintiff appealed to the Full Commission, which filed an opinion and
award on 3 February 2004 reversing the deputy commissioner and concluding that
plaintiff’s ulnar nerve entrapment neuropathy and cervical spine condition were
compensable occupational diseases and that the injury to the cervical spine
qualified as a specific traumatic incident.
The Commission also awarded plaintiff continuing disability
benefits. The Court of Appeals
concluded that the record sufficiently supported the Commission’s findings of
fact and conclusions of law.
The Commission has exclusive original jurisdiction over
workers’ compensation cases and has the duty to hear evidence and file its
award, “together with a statement of the findings of fact, rulings of law, and
other matters pertinent to the questions at issue.” N.C.G.S. §97-84 (2005).
Appellate review of an award from the Industrial Commission is generally
limited to two issues: (i) whether the
findings of fact are supported by competent evidence, and (ii) whether the
conclusions of law are justified by the findings of fact. Clark v. Wal-Mart, 360 N.C. 41,
42-43, 619 S.E.2d 491, 492 (2005) (citing Hendrix v. Linn-Corriher Corp.,
317 N.C. 179, 186, 345 S.E.2d 374, 379 (1986)). If the conclusions of the Commission are based upon a deficiency
of evidence or misapprehension of the law, the case should be remanded so
“‘that the evidence [may] be considered in its true legal light.’” Id. at 43, 619 S.E.2d at 492 (quoting
McGill v. Town of Lumberton, 215 N.C. 752, 754, 3 S.E.2d 324, 326 (1939)
(alteration in original)).
N.C.G.S. §97-53(13)
Section 97-53(13) defines an occupational disease as: “Any
disease . . . which is proven to be due to causes and conditions which are
characteristic of and peculiar to a particular trade, occupation or employment,
but excluding all ordinary diseases of life to which the general public is
equally exposed outside of the employment.”
N.C.G.S. §97-53(13) (2005).
For an occupational disease to be compensable under N.C.G.S.
§97-53(13) it must be
(1)
characteristic of persons engaged in the particular trade or occupation in
which the [plaintiff] is engaged; (2) not an ordinary disease of life to which
the public generally is equally exposed with those engaged in that particular
trade or occupation; and (3) there must be “a causal connection between the
disease and the [plaintiff’s] employment.”
Rutledge
v. Tultex Corp./Kings Yarn, 308 N.C. 85, 93, 301 S.E.2d 359, 365 (1983)
(quoting Hansel v. Sherman Textiles, 304 N.C. 44, 52, 283 S.E.2d 101,
105-06 (1981)) (citing Booker v. Duke Med. Ctr., 297 N.C. 458, 468, 475,
256 S.E.2d 189, 196, 200 (1979)).
This Court stated in Rutledge:
To satisfy the first and second elements it is not necessary that the disease originate exclusively from or be unique to the particular trade or occupation in question. All ordinary diseases of life are not excluded from the statute’s coverage. Only such ordinary diseases of life to which the general public is exposed equally with workers in the particular trade or occupation are excluded.
Id. (citing
Booker, 297 N.C. at 472-75, 256 S.E.2d at 198-200). In cases where the employment exposed the
worker to a greater risk of contracting the disease than the general public,
the first two elements are satisfied. Rutledge,
308 N.C. at 93-94, 301 S.E.2d at 365.
“The greater risk in such cases provides the nexus between the disease
and the employment which makes them an appropriate subject for workman’s
compensation.” Booker, 297 N.C.
at 475, 256 S.E.2d at 200.
The holding in Rutledge, which arose in the context
of a claim for chronic obstructive lung disease, see 308 N.C. at 87, 301
S.E.2d at 362, also applies where other diseases are at issue. In Futrell v. Resinall Corporation
the Court of Appeals applied the Rutledge test where a plaintiff
contended that he contracted carpal tunnel syndrome as the result of his
employment. 151 N.C. App. 456, 458-59,
566 S.E.2d 181, 183 (2002), aff’d per curiam, 357 N.C. 158, 579 S.E.2d
269 (2003).
The Court of Appeals correctly noted
there is no
authority from this State which allows us to ignore the well-established requirement
that a plaintiff seeking to prove an occupational disease show that the
employment placed him at a greater risk for contracting the condition,
even where the condition may have been aggravated but not originally caused by
the plaintiff’s employment.
Id. at 460, 566
S.E.2d at 184. The court explained that
if the first
two elements of the Rutledge test were meant to be altered or ignored
where a [plaintiff] simply argued aggravation or contribution as opposed to
contraction, then our courts would not have consistently defined the third
element of the Rutledge test as being met where the [plaintiff] can
establish that the employment caused him to contract the disease, or
where he can establish that it significantly contributed to or aggravated the
disease. Rutledge and subsequent case law applying its three-prong
test make clear that evidence tending to show that the employment simply
aggravated or contributed to the employee’s condition goes only to the issue of
causation, the third element of the Rutledge test. Regardless of how an employee meets the
causation prong . . . , the employee must nevertheless satisfy the
remaining two prongs of the Rutledge test by establishing that the
employment placed him at a greater risk for contracting the condition than the
general public.
Id. (citing Norris
v. Drexel Heritage Furnishings, Inc., 139 N.C. App. 620, 622, 534 S.E.2d
259, 261 (2000), cert. denied, 353 N.C. 378, 547 S.E.2d 15 (2001);
Hardin v. Motor Panels, Inc., 136 N.C. App. 351, 354, 524 S.E.2d 368, 371, disc.
rev. denied, 351 N.C. 473, 543 S.E.2d 488 (2000)).
In the instant case the Commission applied an incorrect
standard of the law when it stated:
“Where, as here, there is evidence of both causation and aggravation
connected to particular aspects of an employee’s job duties . . . to which the
general public is not exposed, compensability is logically and legally
warranted.” The Commission cites to
this Court’s decision in Walston v. Burlington Industries; however, the
relevant language in Walston indicates that a disability caused by
disease is compensable when “the disease is an occupational disease, or is
aggravated or accelerated by causes and conditions characteristic of and
peculiar to [plaintiff’s] employment.”
304 N.C. 670, 680, 285 S.E.2d 822, 828, amended on rehearing, 305
N.C. 296, 285 S.E.2d 822 (1982). In Walston
this Court concluded that the plaintiff did not prove a causal connection
between his diseases and his employment.
Id. While Walston
holds that the aggravation of a preexisting condition by an occupational
disease is compensable, it does not alter the evidentiary burden that a
plaintiff must meet to establish that his employment exposed him to a greater
risk of contracting his disease relative to the general public.
Based on the record before us, plaintiff has failed to
establish that his employment placed him at a greater risk of contracting
either his ulnar nerve entrapment or his cervical spine condition than the
general public.
In a 20 June 2002 letter to plaintiff’s attorney, Dr.
Adamson wrote:
2. . . . I feel that
[plaintiff’s] occupation as a bus driver did place him slightly at higher risk
than the general public.
. . .
4. I am not familiar
with any study depicting foraminal stenosis or ulnar entrapment neuropathy as
direct occupational risks of bus drivers.
I believe ulnar entrapment neuropathy is correlated to some degree with
repetitive use of the arm and elbow and as a bus driver I would think
[plaintiff] would be at risk for this. . . .
5. I am not aware of
any particular factors of bus driving that would place [plaintiff] at any
greater risk for developing spondylotic disease of the cervical spine and
subsequent foraminal stenosis.
6. It is possible that
[plaintiff’s] job activities did aggravate foraminal stenosis although it is
impossible to know this for certain.
. . . I feel that bus driving . . . could be a causative or
aggravating factor related to ulnar entrapment neuropathy.
Nowhere in this letter does Dr. Adamson satisfactorily
distinguish between the risk faced by plaintiff of contracting his
conditions and the risk of aggravating a preexisting condition relative
to the general public; rather his statement obscures this distinction by
suggesting that plaintiff’s employment “could be a causative or aggravating
factor” relating to his elbow condition.
Dr. Adamson’s statement in heading 2 does correspond to a question asked
by plaintiff’s attorney in a 6 June 2002 letter regarding whether “the job
duties performed by [plaintiff] place him at increased risk for developing
ulnar entrapment neuropathy in the left arm as opposed to this occurring to
someone in the general public,” but this statement is contradicted by Dr.
Adamson’s later deposition testimony.
At deposition, plaintiff’s attorney asked Dr. Adamson:
“Would the type of physical activity [plaintiff] performed in his job as a bus
driver . . . place him at an increased risk of either aggravating or developing
a left ulnar neuropathy which you diagnosed and treated?” Dr. Adamson responded, “The statement of
aggravation of the ulnar neuropathy I believe is very accurate. . . . There is some debate now medically . . .
about whether the actual repetitive nature actually causes the entrapment
neuropathy, but I think that isn’t as clear cut as we would like it to
be.” Plaintiff’s attorney then repeated
the question, to which Dr. Adamson responded, “I would believe so, yes.” From this testimony alone, it is not clear
whether Dr. Adamson believed that plaintiff’s employment placed him at a
greater risk of contracting his condition than the general population.
The ambiguity of Dr. Adamson’s testimony on direct was
clarified on cross-examination when the following exchange occurred:
Q. . . . I want to make
sure I’m clear on what you have indicated, am I correct in understanding that
in your opinion, you’re not able to say that the bus driving activities caused
the ulnar neuropathy, but that it could have aggravated the ulnar neuropathy?
A. I think that’s
correct.
Q. And the same thing
was basically true for the neck condition, the condition as treated there?
A. Sure.
Much of Dr. Adamson’s testimony is speculation. Although “[d]octors are trained not to rule
out medical possibilities no matter how remote[,]” a “mere possibility has
never been legally competent to prove causation.” Holley v. ACTS, Inc., 357 N.C. 228, 234, 581 S.E.2d 750,
754 (2003) (citations omitted). To
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.” Gilmore v.
Hoke Cty. Bd. of Educ., 222 N.C. 358, 365, 23 S.E.2d 292, 296 (1942). Dr. Adamson’s statements are insufficient to
establish the necessary causal relationship for plaintiff’s conditions to be
compensable as occupational diseases.
The Full Commission relied on Dr. Adamson’s testimony in its
findings of fact, determining plaintiff’s “job duties with defendant caused or
aggravated the conditions for which treatment was rendered and that plaintiff’s
job placed him at an increased risk of developing these conditions.” Dr. Adamson made relevant statements on both
direct and cross-examination as well as in his correspondence with plaintiff’s
attorney. The Commission appears to
have relied solely on Dr. Adamson’s direct examination testimony to the
exclusion of his clarifying testimony on cross-examination. Considering Dr. Adamson’s testimony on
cross-examination, plaintiff produced no evidence that his employment exposed
him to a greater risk of contracting an occupational disease relative to the
general public.
The Commission’s emphatic reliance on the ambiguous portions
of Dr. Adamson’s testimony, together with its inconsistent statement of the law
under Rutledge, indicates that the Commission acted under a
misapprehension of the law. If Dr.
Adamson was ambiguous with respect to plaintiff’s risk of contracting his ulnar
neuropathy relative to the general public, he was absolutely clear in his 20
June 2002 letter that plaintiff faced no greater risk of contracting his
cervical spine condition than did the general public. The Commission incorrectly applied the law and did not rely upon
competent evidence in its findings that plaintiff’s ulnar neuropathy and
spondylotic disease of the cervical spine were compensable occupational
diseases. Accordingly, we conclude that
the Commission erred in concluding that plaintiff sustained a compensable
occupational disease within the meaning of N.C.G.S. §97-53(13).
N.C.G.S. §97-2(6)
The Workers’ Compensation Act provides in pertinent part:
“Injury and
personal injury” shall mean only injury by accident arising out of and in the
course of the employment, and shall not include a disease in any form, except
where it results naturally and unavoidably from the accident. With respect to back injuries, however,
where injury to the back arises out of and in the course of the employment and
is the direct result of a specific traumatic incident of the work assigned,
“injury by accident” shall be construed to include any disabling physical
injury to the back arising out of and causally related to such incident.
N.C.G.S.
§97-2(6) (2005).
In the instant case the Commission’s findings of fact stated
that plaintiff suffered compensable injury and “was unable to return to work
because of his occupational disease and specific traumatic incident.” The Commission found that “[t]he sudden pain
to plaintiff’s neck on December 4, 2000, qualifies under North Carolina law as
a specific traumatic incident of the work assigned.”
The Court of Appeals noted that it is well settled that its
review of the Commission’s decisions “is limited to the determination of
whether there is competent evidence to support the Commission’s Findings of
Fact and whether those findings support the Conclusions of Law.” Chambers v. Transit Mgmt., 172 N.C.
App. 540, 542-43, 616 S.E.2d 372, 374 (2005) (citations omitted). In affirming the Commission the Court of
Appeals held that the “record contains sufficient evidence to support the facts
found by the Commission” and its “conclusion . . . that plaintiff is entitled
to disability income as compensation for his injury resulting from a specific
traumatic incident.” Id. at 544,
616 S.E.2d at 375. We disagree.
The plain language of the statute requires that the injury
be “the direct result of a specific traumatic incident.” N.C.G.S. §97-2(6). The Commission concluded there was evidence of a specific
traumatic incident, but only supported that conclusion by a finding that the
“sudden pain to plaintiff’s neck on December 4, 2000, qualifies . . . as a
specific traumatic incident of the work assigned.” Plaintiff, however, described a gradual onset of pain. Daniel B. Murrey, M.D., an orthopedist who
treated plaintiff before Dr. Adamson, noted that plaintiff described a “gradual
onset of left arm pain while he was driving” and knew of “no particular
inciting event.” In fact, plaintiff
revealed that he might have injured himself doing yard work. Randy Mullenex, director of safety and
administration for defendant, testified that he asked plaintiff whether his
injury could have resulted from yard work and plaintiff replied, “I don’t
know.” When asked why he believed his
job caused or contributed to this flare-up, plaintiff replied, “Because I had
no prior problems, none at all with my left arm or my hand or anything of that
nature. And – but I still couldn’t be a
hundred percent sure that it wasn’t coming from something else.”
We conclude that the evidence is not sufficient to satisfy
the requirements enunciated by the General Assembly in N.C.G.S. §97-2(6) and
that the Court of Appeals erred in finding that the Commission relied on
competent evidence in determining that a specific traumatic incident occurred.
Previous decisions of the Court of Appeals are inconsistent
with the holding in Chambers. In
Livingston v. James C. Fields & Co., 93 N.C. App. 336, 377 S.E.2d
788 (1989) the court addressed a similar situation where an employee
experienced a gradual onset of back pain.
The court noted that “[a] ‘specific
traumatic incident’ means the ‘injury must not have developed gradually but
must have occurred at a cognizable time.’
Bradley v. E.B. Sportswear, Inc., 77 N.C. App. 450, 452, 335
S.E.2d 52, 53 (1985). In this context,
‘cognizable’ means capable of being judicially known and determined.” Livingston, 93 N.C. App. at 337, 377
S.E.2d at 788.
The court expounded on its view of judicially cognizable
time in Fish v. Steelcase, Inc., 116 N.C. App. 703, 449 S.E.2d 233
(1994), cert. denied, 339 N.C. 737, 454 S.E.2d 650 (1995).
Judicially
cognizable
does not mean “ascertainable on an exact date.” Instead, the term should be read to describe a showing by
plaintiff which enables the Industrial Commission to determine when, within a
reasonable period, the specific injury occurred. The evidence must show that there was some event that caused the
injury, not a gradual deterioration.
Id. at 709, 449
S.E.2d at 238. In the instant case no
competent evidence in the record supports a finding that plaintiff experienced
an event within a judicially cognizable time causing his back injury. Plaintiff must demonstrate a causal
connection between the specific traumatic event and the injury. See Livingston, 93 N.C. App.
at 337, 377 S.E.2d at 789. Contra
Zimmerman v. Eagle Elec. Mfg. Co., 147 N.C. App. 748, 754, 556 S.E.2d
678, 681 (2001) (stating that “a worker must only show that the injury occurred
at a ‘judicially cognizable’ point in time”), disc. rev. improvidently
allowed, 356 N.C. 425, 571 S.E.2d 587 (2002).
Here, plaintiff presented evidence that he experienced pain
on a particular date but he presented no evidence linking that pain to the
occurrence of an injury. The statute
defines an “injury by accident” to an employee’s back to be an injury that is
“the direct result of a specific traumatic incident” and “causally related to
such incident.” N.C.G.S. §97-2(6). The onset of plaintiff’s pain on 4 December
2000, without more, does not establish evidence of a specific traumatic
incident. The Court of Appeals has held
that “[t]he onset of pain is not a ‘specific traumatic incident’ that will
determine whether compensation will be allowed pursuant to the act; pain is,
rather, as a general rule, the result of a ‘specific traumatic
incident.’” Roach v. Lupoli Constr.
Co., 88 N.C. App. 271, 273, 362 S.E.2d 823, 824 (1987).
None of plaintiff’s evidence establishes a specific
traumatic incident of the work assigned that can be construed as an “injury by
accident” to plaintiff’s back as required by N.C.G.S. §97-2(6) and prior
decisions of the Court of Appeals. See,
e.g., Moore v. Fed. Express, 162 N.C. App. 292, 294, 298, 590 S.E.2d
461, 463-64, 465-66 (2004) (loading a box into a vehicle); Whitfield v. Lab. Corp. of Am., 158
N.C. App. 341, 344, 352, 581 S.E.2d 778, 781, 785-86 (2003) (slipped on
rainwater); Ruffin v. Compass Grp. USA, 150 N.C. App. 480, 481, 482-84,
563 S.E.2d 633, 635, 636-37 (2002) (lifted a forty pound box of syrup out of
truck); Beam v. Floyd’s Creek Baptist Church, 99 N.C. App. 767, 769, 394
S.E.2d 191, 192 (1990) (carried a heavy spotlight backwards up a flight of
stairs); Kelly v. Carolina Components, 86 N.C. App. 73, 76-77, 356
S.E.2d 367, 369 (1987) (carried a door on head while climbing down a ladder); Bradley,
77 N.C. App. at 451-52, 335 S.E.2d at 52-53 (lifted box off floor). Plaintiff having failed to produce competent
evidence of a specific incident that caused his injury, we hold that the Court
of Appeals erred when it affirmed the Commission’s opinion and award.
For the foregoing reasons, we reverse the decision of the
Court of Appeals affirming the Industrial Commission’s opinion and award. This case is remanded to the Court of
Appeals for further remand to the Industrial Commission for further proceedings
consistent with this opinion.
REVERSED AND REMANDED.
Justice MARTIN did not participate in the consideration or
decision of this case.