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NO. COA02-1551
NORTH CAROLINA COURT OF APPEALS
Filed: 21 October 2003
GLENN
R. CARROLL,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 902642
TOWN
OF AYDEN,
Employer,
and
SELF-INSURED
(N.C. LEAGUE
OF
MUNICIPALITIES,
Servicing
Agent),
Defendants.
Appeal by plaintiff from an opinion and award entered 17 July 2002 by the North Carolina Industrial Commission. Heard in the Court of Appeals 9 September 2003.
Stanley
Law Firm, by Wade A. Stanley, for plaintiff-appellant.
Lewis
& Roberts, P.L.L.C., by Jack S. Holmes, for defendants-appellees.
LEVINSON,
Judge.
Plaintiff
appeals from an opinion and award of the North Carolina Industrial Commission
denying plaintiff’s Workers’ Compensation claim. We affirm.
Plaintiff
was employed by the Town of Ayden, North Carolina, in 1980 in the water and
sewer department. His initial job duties included tasks associated with
installation, maintenance, and repair of the Town’s water and sewer system. In
performing his duties, plaintiff was regularly exposed to raw sewage containing
materials such as water, urine, feces, grease, feminine hygiene products,
prophylactics, small amounts of blood, and other items and substances that
people flush down toilets.
The
sewage sometimes touched plaintiff’s skin or entered his eyes and mouth. When
plaintiff had cuts or abrasions, the sewage came into contact with his broken
skin. Plaintiff was promoted to foreman in 1984, and later to superintendent;
after each promotion, his exposure to raw sewage became less frequent.
In
1992, liver function tests conducted during a physical examination of plaintiff
indicated possible liver problems. Testing revealed that plaintiff did not have
hepatitis A or B. In 1998, routine blood work for an unrelated problem also
yielded abnormal liver function test results. Plaintiff’s physician referred him
to Dr. Douglas F. Newton, an internist and gastroenterologist, who diagnosed
plaintiff with hepatitis C. In Dr. Newton’s opinion, plaintiff had been
infected for about six years and had acquired the infection due to contact with
sewer water.
Plaintiff
filed a workers’ compensation claim alleging that his hepatitis C was a
compensable occupational disease as defined in N.C.G.S. §97-53(13) (2001). In
support of his claim, plaintiff offered Dr. Newton’s deposition testimony, in
which the doctor offered an opinion that, to a reasonable degree of medical
certainty, plaintiff was likely infected with hepatitis C through work-related
contact with sewage. Plaintiff also presented evidence that his wife of
twenty-seven years had tested negative for hepatitis C, and testified that he
had no history of blood transfusions, tattoos or intravenous drug use, and had
not had extramarital sexual contact.
Defendant
offered the deposition testimony of Dr. John F. Campbell, an expert in
infectious diseases. Dr. Campbell never treated plaintiff; his testimony was
based upon plaintiff’s job description and personnel file, interrogatories, and
plaintiff’s medical file. Dr. Campbell testified that he was unaware of any
studies linking plaintiff’s occupation with a greater-than-average risk of
hepatitis C infection. Moreover, Dr. Campbell indicated that, while he could
not determine the cause of plaintiff’s hepatitis C, he saw no evidence of
plaintiff contracting hepatitis C at work.
The
Commission found, in pertinent part:
10. Because
Dr. Newton attributed plaintiff’s hepatitis to his exposure to sewage at work,
plaintiff filed this workers’ compensation claim. Defendant then presented the
issue to Dr. Campbell, an internist and infectious disease specialist who had
worked for the Center for Disease Control for two years during his career. Dr.
Campbell searched the medical literature and found no studies which showed
Hepatitis C to be present in sewage or that sewage could transfer the virus.
There was no scientific evidence to support the theory that sewer workers were
at an increased risk of acquiring the infection and, in view of the large
number of sewage systems and sewer workers, the doctor was of the opinion that
the risk would have been noticed if it existed. Despite the large number of
patients he had treated for Hepatitis C, Dr. Campbell had never had a patient
claim to have contracted the disease from exposure to sewage.
11. Dr.
Campbell explained that Hepatitis C is a virus which is transmitted through a
blood borne route. . . . Hepatitis C is usually transmitted by shared
intravenous needles, but there have been less frequent reports of sexual
transmission and rare cases of cuts or punctures allowing the virus to enter
the blood stream when exposed to infected blood. . . . In addition, the
Hepatitis C virus has a very short life span outside of the host, which has
hampered research since it cannot be cultured. The fact that the Hepatitis C
virus does not survive long outside the host renders transmission through sewer
waste unlikely. There has been considerable effort in medicine to identify the
routes of transmission for Hepatitis C. Contact with sewer waste has not been
identified as a potential cause for Hepatitis C.
12. Dr.
Newton was too quick to attribute plaintiff’s condition to his exposure to
sewage. Not only did Dr. Newton not have scientific authority to support his
opinion, he could not base his opinion on his own experience in medical
practice since he had not treated another sewer worker for Hepatitis C. In
addition, as noted by Dr. Campbell, there are disincentives for patients to
disclose the types of activities which could lead to infection.
13. Although
plaintiff was exposed to untreated sewer water which would have contained some
blood and although he worked at times with cuts or abrasions on his skin, he
has not proven by the greater weight of the evidence to have been placed at an
increased risk of developing Hepatitis C by reason of his exposure to untreated
sewage in his employment with defendant. Nor was his exposure to untreated
sewage proven to have been a significant contributing factor in his contraction
of the disease.
14. Plaintiff
has not proven that he developed an occupational disease which was due to
causes and conditions characteristic of and peculiar to his employment with
defendant-employer and which excluded all ordinary diseases of life to which
the general public was equally exposed.
The
Commission made the following relevant conclusion of law:
1. Plaintiff’s
Hepatitis C was not an occupational disease which was due to causes and
conditions characteristic of and peculiar to his employment with
defendant-employer and which excluded all ordinary diseases of life to which
the general public was equally exposed. G.S. §97-53(13); Booker v. Duke
Medical Center, 297 N.C. 458 (1979). Dr. Newton’s bald opinion is not
accepted as credible evidence of causation because his opinion is not based on
accepted medical principles of differential diagnosis and is not supported by
the accepted medical literature.
(citations omitted).
The
Full Commission, with one Commissioner dissenting, denied compensation.
Plaintiff now appeals the Commission’s opinion and award, contending (1) the
Commission erred in finding that plaintiff was not exposed to hepatitis C at
work, and (2) the Commission erred in concluding that plaintiff’s hepatitis C
infection was not caused by his employment.
Our
review of the Commission’s opinion and award “is limited to a determination of
(1) whether the Commission’s findings of fact are supported by any competent
evidence in the record; and (2) whether the Commission’s findings justify its
conclusions of law.” Goff v. Foster Forbes Glass Div., 140 N.C. App.
130, 132-33, 535 S.E.2d 602, 604 (2000). “The facts found by the Commission are
conclusive upon appeal to this Court when they are supported by competent
evidence, even when there is evidence to support contrary findings.” Pittman
v. Int’l Paper Co., 132 N.C. App. 151, 156, 510 S.E.2d 705, 709, disc.
review denied, 350 N.C. 310, 534 S.E.2d 596, aff’d per curiam, 351
N.C. 42, 519 S.E.2d 524 (1999). “[T]his Court is ‘not at liberty to reweigh the
evidence and to set aside the findings . . . simply because other . . .
conclusions might have been reached.’“ Baker v. Sanford, 120 N.C. App.
783, 787, 463S.E.2d 559, 562 (1995) (quoting Rewis v. Ins. Co., 226 N.C.
325, 330, 38 S.E.2d 97, 100 (1946)), disc. review denied, 342 N.C. 651,
467 S.E.2d 703 (1996). “[T]he full Commission is the sole judge of the weight
and credibility of the evidence. . . .” Deese v. Champion Int’l Corp.,
352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000) (citing Adams v. AVX Corp.,
349 N.C. 676, 680-81, 509 S.E.2d 411, 413-14 (1998)). “[T]he Commission does
not have to explain its findings of fact by attempting to distinguish which
evidence or witnesses it finds credible.” Id. This Court reviews the
Commission’s conclusions of law de novo. Griggs v. E. Omni
Constructors, __ N.C. App. __, __, 581 S.E.2d 138, 141 (2003).
Under
the Workers’ Compensation Act, a compensable occupational disease includes
“[a]ny disease . . . 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) (2001).
For
a disease to be occupational under G.S. 97-53(13) it must be (1) characteristic
of persons engaged in the particular trade or occupation in which the claimant
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
[claimant’s] employment.”
Rutledge v. Tultex Corp., 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)). “[T]he first two elements are satisfied if, as a matter of
fact, the employment exposed the worker to a greater risk of contracting the
disease than the public generally.” Id. at 93-94, 301 S.E.2d at 365.
Proof of the third element, causal connection between the disease and the
employee’s occupation, often will be based on circumstantial evidence. Booker
v. Duke Med. Ctr., 297 N.C. 458, 476, 256 S.E.2d 189, 200 (1979). “Among
the circumstances which may be considered are the following: (1) the extent of
exposure to the disease or disease-causing agents during employment, (2) the
extent of exposure outside employment, and (3) absence of the disease prior to
the work-related exposure as shown by the employee’s medical history.” Id.
Plaintiff
first contends that the competent record evidence compelled a finding that his
employment placed him at an increased risk of contracting hepatitis C. This is
so, plaintiff argues, because (1) raw sewage came into contact with plaintiff’s
cuts and abrasions, (2) plaintiff testified that he has not engaged in other
risk-enhancing behavior, and (3) plaintiff’s treating physician, Dr. Newton,
offered an expert opinion that plaintiff’s employment resulted in his illness.
The
Commission found that plaintiff’s employment did not place him at an increased
risk of contracting hepatitis based in large part on the deposition testimony
of defendant’s expert witness, Dr. Campbell. Dr. Campbell testified that
exposure to sewer water has not been linked to the transmission of hepatitis C.
Dr. Campbell also testified that hepatitis C does not survive outside of a host
body for any significant amount of time, that transmission usually requires
exposure of the skin to fairly large volumes of infected blood, and that no
evidence exists that exposure to diluted amounts of infected blood can transmit
hepatitis C. Dr. Campbell concluded that he could not identify plaintiff’s job
as the source of hepatitis C infection because he had seen no evidence of
direct exposure to infected blood.
Dr.
Campbell’s testimony is competent evidence which supports the Commission’s
finding that plaintiff was not at an increased risk of contracting hepatitis C
as a result of his employment-related contact with raw sewage. We cannot
overrule the Commission’s findings of fact merely because plaintiff presented
evidence which would support a contrary finding. See Pittman, 132 N.C.
App. at 156, 510 S.E.2d at 709.
Plaintiff
next contends that the Commission erred in concluding that his hepatitis C
infection was not caused by his employment. The gravamen of this contention is
that the Commission should have given greater weight to the deposition
testimony of plaintiff’s expert witness, Dr. Newton, than to defendant’s expert
witness, Dr. Campbell. This is so, plaintiff argues, because Dr. Newton
actually treated plaintiff while Dr. Campbell reviewed material about plaintiff
submitted to him by defense counsel.
“[T]he
Commission does not have to explain its findings of fact by attempting to
distinguish which evidence or witnesses it finds credible.” Deese, 352
N.C. at 116, 530 S.E.2d at 553. In the present case, however, the Commission
did explain its assessment of the credibility of the witnesses; the findings of
fact indicate that the Commission found Dr. Campbell’s testimony more
persuasive than Dr. Newton’s testimony. As already indicated, Dr. Campbell’s
testimony is competent record evidence which supports the Commission’s findings
of fact. These findings of fact support the Commission’s conclusion that
compensation is unwarranted.
The
assignments of error are overruled. The Industrial Commission’s opinion and
award is
Affirmed.
Judge
WYNN dissents.
Judge
TYSON concurs.
NO. COA02-1551
NORTH CAROLINA COURT OF APPEALS
Filed: 21 October 2003
GLENN
R. CARROLL,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 902642
TOWN
OF AYDEN,
Employer,
and
SELF-INSURED
(N.C. LEAGUE
OF
MUNICIPALITIES,
Servicing
Agent),
Defendants.
WYNN, Judge dissenting.
“It is the duty of the Commission to consider all of the competent evidence, make definitive findings, draw its conclusions of law from these findings, and enter the appropriate award. In making its findings, the Commission’s function is to weigh and evaluate the entire evidence and determine as best it can where the truth lies.” Harrell v. J.P. Stevens & Co., 45 N.C. App. 197, 205, 262 S.E.2d 830, 835 (1980). Moreover, in workers’ compensation cases, it is a “general principle that the provisions of the Workers’ Compensation Act should be construed liberally so that benefits are not denied to an employee based on a narrow or strict interpretation of the statute’s provisions.” Grantham v. Cherry Hosp., 98 N.C. App. 34, 37, 389 S.E.2d 822, 823 (1990). In this case, because I believe the Commission did not consider all of the competent evidence and did not base its decision upon a fair and liberal construction of N.C. Gen. Stat. §97-53(13), I respectfully dissent.
The record indicates the Commission was presented with evidence of blood-borne pathogen regulations implemented by OSHA, with which the Town of Ayden had to comply.[Note 1] Under OSHA standard 1910.1030, after reviewing all of the evidence in the rulemaking record, OSHA “determined that employees face a significant health risk as the result of occupational exposure to blood and other potentially infectious materials (OPIM) because they may contain bloodborne pathogens. These pathogens include but are not limited to HBV, which causes hepatitis B; HIV,..., hepatitis C virus . . ..” Included in the employees at risk were “employees handling regulated waste, custodial workers required to clean up contaminated sharps or spills of blood or OPIM, ...maintenance workers, such as plumbers.” Therefore, OSHA required certain standards to be implemented to minimize the risk of infection. Therefore, even though both experts testified they were not aware of any literature indicating sewer maintenance workers were at a greater risk of contracting Hepatitis C than the general public, there was competent evidence in the record indicating sewer maintenance workers were indeed at a greater risk than the general public. Accordingly, finding of fact 10, which states in part: “there was no scientific evidence to support the theory that sewer workers were at an increased risk of acquiring the infection” is not supported by the record.
Moreover, the Commission based its decision upon an improper inference from the evidence presented. In Findings of Fact 11-12, the Commission described the testimony of Dr. John Campbell and Dr. Douglas F. Newton. Dr. Newton, a licensed physician for 26 years and a board-certified expert specialist in gastroenterology and internal medicine, treated plaintiff, analyzed plaintiff’s medical records and questioned plaintiff about his medical history, any possible history of risky behaviors, and his employment. In contrast, Dr. Campbell had been licensed in North Carolina for 13 years and had never treated plaintiff. Although Dr. Campbell had worked for two years with the Center for Disease Control, he did not conduct any research in Hepatitis C and has never published on the subject. Rather, Dr. Campbell’s worked in epidemic intelligence at the CDC. In order to render an opinion, Dr. Campbell researched medical literature and reviewed plaintiff’s medical and employment records.
In rendering its finding on Dr. Newton’s testimony, the Commission stated: “Dr. Newton was too quick to attribute plaintiff’s condition to his exposure to sewage. Not only did Dr. Newton not have scientific authority to support his opinion, he could not base his opinion on his own experience in medical practice since he had not treated another sewer worker for Hepatitis C.”
A close analysis of the depositions indicate the doctors provided essentially the same testimony regarding Hepatitis C. Both doctors testified that Hepatitis C is a blood-borne pathogen that infects the liver and can possibly led to death. They both testified that most people get it through direct exposure through cuts or injections and that IV drug use was the most common method. They also testified that people could get it through blood transfusions but that it was rare to get it through sexual conduct. Finally, they both testified that they were unaware of any medical literature linking Hepatitis C to sewer maintenance workers or indicating Hepatitis C could be transmitted through sewer water and neither doctor had treated another sewer worker for Hepatitis C.
Based upon a complete history of plaintiff’s behaviors, employment and medical care, Dr. Newton attributed plaintiff’s Hepatitis C infection to workplace exposure. However, without the benefit of plaintiff’s complete history and based upon his assessment of the medical literature, Dr. Campbell testified that plaintiff did not contract it from workplace exposure and could not state a cause of his Hepatitis C.
Disregarding the OSHA standard and the similarities in the testimony, the Commission based Findings of Fact 11 and 12 solely upon the doctors’ testimony that they were unaware of any medical literature indicating Hepatitis C could be transmitted through sewer water or that sewer workers were at a greater risk of contracting the disease. Notably, neither doctor testified that there was no scientific evidence of such a connection.
Finally, the Commission, disregarding plaintiff’s work environment and behavioral history, neglected its duty to apply a fair and liberal construction to the statute. As plaintiff explained to his doctor and the Commission, he began working for the Town of Ayden as a water and sewer maintenance and lift station technician in 1980. From 1980 until 1986, he worked on a daily basis for an average of 4-5 hours in untreated, raw sewage that contained needles, syringes, blood, urine, feces, feminine hygiene products, prophylactics and any other thing people flushed down a toilet. Because he was working with metal and rough surfaces, he would frequently get cuts and abrasions which he treated with antiseptic and covered with a band-aid. Plaintiff also had a condition where his nose would bleed easily and it was not unusual for plaintiff to come out of the sewer with a nosebleed. While unclogging sewer mains and pipes, it was not unusual for plaintiff to be showered with raw, untreated sewage and it was not uncommon for sewage to enter his eyes and mouth. His rain suit and clothes would become saturated with sewage and would come into contact with his skin. His gloves would puncture and tear and raw sewage would seep into his gloves and rubber boots. Dr. Newton testified that given this exposure to blood and raw sewage and after eliminating all other possible causes of infection, he opined that plaintiff contracted Hepatitis C at work because there was no other source of exposure.
Ignoring plaintiffs workplace exposure to blood, plaintiff’s testimony indicating he had not participated in any behaviors that could have been another potential source of Hepatitis C infection, Dr. Newton’s expert opinion, and OSHA regulations indicating sewer maintenance workers were at an increased risk of contracting Hepatitis C, the Commission chose to rely upon the doctors’ lack of knowledge regarding medical literature on the subject. In my opinion, the Commission failed to consider all of the competent evidence, did not fulfill its duty to apply a liberal construction to N.C. Gen. Stat. §97-53(13), and did not try to determine as best it could where the truth lay. See Harrell v. J.P. Stevens & Co., 45 N.C. App. 197, 205, 262 S.E.2d 830, 835 (1980). As the determination of whether an occupational disease exists is a mixed question of law and fact, I would conclude plaintiff established by a preponderance of the evidence that he did suffer from an occupational disease. See Hobbs v. Clean Control Corp., 154 N.C. App. 433, 436, 571 S.E.2d 860, 862 (2002)(stating “Plaintiff has the burden of proving [an occupational disease] by a preponderance of the evidence”).
1. Violation of the standard could result in civil or criminal penalties. See N.C. Gen. Stat. §§95-131, 95-138 and 95-139.