Valladares v. Tech Elec. Corp. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA13-705
NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
LUIS VALLADARES,
Employee,
Plaintiff
v. North Carolina
Industrial Commission
I.C. No. X67511
TECH ELECTRIC CORP.,
Employer,
and
CINCINNATI INSURANCE COMPANY,
Carrier,
Defendants.
Appeal by Plaintiff from opinion and award entered 6 March
2013 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 4 November 2013.
Lennon, Camak & Bertics, PLLC, by Michael W. Bertics and S.
Neal Camak, for Plaintiff.
Cranfill Sumner & Hartzog LLP, by Roy G. Pettigrew and Sara
B. Warf, for Defendants.
DILLON, Judge.
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Luis Valladares (Plaintiff) appeals from an opinion and
award of the Full Commission of the North Carolina Industrial
Commission (the Commission) denying his claim for workers’
compensation benefits. For the following reasons, we affirm.
I. Factual & Procedural Background
At the time of his injury, Plaintiff had been employed by
Tech Electric Corp. (Defendant) for six years as an electrical
foreman, an occupation which required that Plaintiff perform a
significant amount of squatting, kneeling, and ladder climbing
in order to “wire commercial buildings with data cables.”
On 6 October 2011, Plaintiff was working within the scope
of his employment with Defendant when he sustained an injury to
his right knee. Plaintiff had been splicing cable together
while “squat[ting] on his knees in a fetal position” when he
began to stand up and his right knee “popped.” An MRI and
subsequent examination revealed that Plaintiff had sustained a
complex medial meniscus tear, which required Plaintiff to
undergo surgery.
Defendant denied Plaintiff’s claim for workers’
compensation benefits, and the matter came on for hearing before
Deputy Commissioner Theresa B. Stephenson on 19 January 2012.
Plaintiff stipulated at the hearing that his injury was not the
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result of an injury “by accident” and that he was pursuing his
claim solely as an occupational disease claim.
Plaintiff testified that the nature of his occupation,
which, as previously stated, required him to perform a
significant amount of squatting and kneeling, had placed him at
an increased risk – relative to the general public – of the type
of injury that he had sustained. Plaintiff’s co-worker, Gary
Shepard, and supervisor, Frank Morgan, both testified and
corroborated Plaintiff’s description of his job duties.
However, Mr. Shepard, who was sixty-four years old at the time
of the hearing, also testified that he performed the same job
duties as Plaintiff did, but had never experienced any knee
problems other than some soreness at the end of the day.
Dr. Mark Galland, Plaintiff’s orthopedic surgeon, testified
to the severity of Plaintiff’s injury and to Plaintiff’s lack of
a “good recovery” despite undergoing physical therapy. He
further testified that Plaintiff’s injury had “a significant
acute component to it”; that the injury was more likely than not
caused by the act of standing up from a kneeling or crouched
position; and that Plaintiff was at a higher risk of sustaining
such an injury than would be individuals “who [do] not engage in
[significant amounts of kneeling, squatting, and climbing] on a
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regular basis, and [who] rarely, if ever, squat or spend most of
their time walking in a straight line, and not rapidly changing
direction, or performing lateral movement, or climbing ladders,
or stairs.”
Defendant’s medical expert, Dr. Brian Szura, agreed that
Plaintiff had suffered an acute meniscus tear while working
within the scope of his employment with Defendant. He also
admitted that it was “probably” true that an individual who
frequently moves from a kneeling or crouching position to a
standing position is more at risk of a meniscus tear than is the
general population.
On 24 August 2012, the Deputy Commissioner entered an
opinion and award denying Plaintiff’s claim. The Deputy
Commissioner rejected Plaintiff’s contention that his condition
constituted a compensable occupational disease on grounds that
“Plaintiff failed to prove that his torn right meniscus is a
diseased condition or degenerative process developing over a
long time, rather than an acute injury occurring at a discrete
time and place. . . . Nor did Plaintiff prove by competent
evidence that he suffered from any underlying disease that led
to his injury.” (Citations omitted). Plaintiff appealed to the
Full Commission, which, upon reviewing the record evidence and
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hearing arguments from the parties, entered an opinion and award
affirming the Deputy Commissioner’s decision. In its 6 March
2013 opinion, the Full Commission noted the Deputy
Commissioner’s error in considering “gradualness” of the
condition as a prerequisite for establishing a compensable
occupational disease, but nevertheless denied the compensability
of Plaintiff’s claim on the following grounds:
Plaintiff’s claim for compensation on
account of the right medial meniscus tear he
suffered on October 6, 2011 must be denied,
because he failed to establish that it was
the result of a compensable injury by
accident or occupational disease within the
meaning of the North Carolina Workers’
Compensation Act. While it occurred at a
definite time and place following a distinct
injurious event, it was not the result of an
interruption of his work routine and
therefore is not compensable as an injury by
accident. N.C. Gen. Stat. §97-2(6); Gray v.
RDU Airport Authority, 203 N.C. App. 521,
525, 692 S.E.2d 170, 174 (2010). With regard
to occupational disease, Plaintiff failed to
prove that he suffers from a disease that is
characteristic of and peculiar to his
employment as a telecommunications cable
installer. He failed to prove that his
employment placed him at an increased risk
of developing a torn medial meniscus as
compared to members of the general public
not so employed. N.C. Gen. Stat. § 97-
53(13); Rutledge v. Tutlex Corp./Kings Yarn,
308 N.C. 85, 93, 301 S.E.2d 359, 365 (1983).
To hold otherwise based upon the doctors’
testimony that a person who steps off a
ladder or stands up from a crouching
position has a greater potential to suffer a
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torn meniscus at any given time, would turn
the established law regarding occupational
diseases in North Carolina on its head and
make virtually every injurious event that
happens at work compensable. While the
holding in Booker v. Duke Medical Center,
297 N.C. 458, 256 S.E.2d 189 (1979) makes it
clear that the element of gradualness is not
necessarily determinative, it remains clear
that “an occupational disease must be a
disease which is a natural incident of a
particular occupation, and must attach to
that occupation a hazard which distinguishes
it from the usual run of occupations and is
in excess of that attending employment in
general.” Booker at 473, S.E.2d at 199
(quoting LeLenko v. Wilson H. Lee Co., 128
Conn. 499, 503, 24 A.2d 253, 255 (1942)
(citation and internal quotation marks
omitted)).
From this opinion and award, Plaintiff appeals.
II. Analysis
Plaintiff contends that the Commission acted under a
misapprehension of the law in denying his workers’ compensation
claim. More specifically, Plaintiff argues that the Commission
misconstrued well-established law in concluding that his
condition did not qualify as a compensable “occupational
disease” for workers’ compensation purposes. We disagree.
Our review of the Commission’s opinion and award is
“limited to reviewing whether any competent evidence supports
the Commission’s findings of fact and whether the findings of
fact support the Commission’s conclusions of law.” Deese v.
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Champion Int’l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553
(2000). “The full Commission’s findings of fact ‘are conclusive
on appeal when supported by competent evidence,’ even if there
is evidence to support a contrary finding.” Chavis v. TLC Home
Health Care, 172 N.C. App. 366, 369, 616 S.E.2d 403, 408 (2005)
(citation omitted). “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.’” Clark v. Wal-Mart, 360
N.C. 41, 43, 619 S.E.2d 491, 492 (2005) (quoting McGill v. Town
of Lumberton, 215 N.C. 752, 754, 3 S.E.2d 324, 326 (1939))
(alteration in original).
N.C. Gen. Stat. § 97-53 (2011) enumerates a list of
recognized occupational diseases, such as anthrax, lead
poisoning, and asbestosis. Subsection (13) of this provision
sets forth a “catchall” provision, which provides that an
occupational disease shall also include the following:
Any disease, other than hearing loss covered
in another subdivision of this section,
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. Gen. Stat. § 97-53 (13) (2011).
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First articulated by our Supreme Court in Rutledge v.
Tultex Corp./Kings Yarn, 308 N.C. 85, 301 S.E.2d 359 (1983), the
now well-established test for determining whether a claimant’s
condition qualifies as an occupational disease within the
meaning of N.C. Gen. Stat. § 97-53(13) is as follows:
To establish a right to workers’
compensation benefits for an occupational
disease under [N.C. Gen. Stat. § 97–53(13)],
the employee must show: (1) the disease is
characteristic of individuals engaged in the
particular trade or occupation in which the
claimant is engaged; (2) the disease is 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 is a causal
relationship between the disease and the
claimant’s employment.
Hardin v. Motor Panels, Inc., 136 N.C. App. 351, 354, 524 S.E.2d
368, 371 (2000) (citing Rutledge, 308 N.C. at 93, 301 S.E.2d at
365).
Here, the Commission denied Plaintiff’s claim both on
grounds that Plaintiff had not suffered a compensable injury by
accident and on grounds that Plaintiff’s condition did not
qualify as an occupational disease. Plaintiff argues only that
his condition constitutes an occupational disease, and we thus
confine our analysis to this issue.
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The parties have stipulated that Plaintiff’s injury was
acute, rather than degenerative in nature. Plaintiff thus
admits that his injury was a result of the 6 October 2011
incident and not the result of a workplace-related degenerative
condition. The Commission relied on this concession in denying
Plaintiff’s claim, concluding that there was “no expert medical
evidence of record to support the contention that Plaintiff’s
meniscus tear was the result of a chronic degenerative process
or disease which was caused by his employment with Defendant-
Employer.” (Emphasis added).
Plaintiff nevertheless contends that his acute injury
qualifies as an occupational disease, in that, relative to the
general public, the significant amount of kneeling, squatting,
and crouching-to-standing movements he was required to perform
due to his occupation placed him at an increased risk of
suffering a meniscus tear-type injury. Plaintiff cites the
testimony of Mr. Shepard and Mr. Morgan corroborating his own
description of the physical activity associated with his job
duties. Plaintiff also cites the expert testimony of Dr.
Galland and Dr. Szura as supporting his position that
individuals who frequently engage in this type of physical
activity – i.e., kneeling and squatting – are more likely to
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suffer an acute medial meniscus tear than are individuals who do
not frequently engage in such activity. Although the Commission
rejected this assertion and expressly found that Plaintiff’s
position did not place him at an increased risk of sustaining a
meniscus tear-type injury, we find it dispositive that, as the
Commission ultimately concluded, Plaintiff failed to meet his
burden in proving that his condition – an acute tear of the
medial meniscus in his right knee – constitutes an occupational
disease within the meaning of N.C. Gen. Stat. § 97-53 (13) and
the precedent of our Courts.
Prior to Booker, which was decided in 1979, our Supreme
Court used the term “occupational disease” in the workers’
compensation context to distinguish an “injury by accident” from
a workplace-related condition that developed gradually over
time. Watkins v. Morrow, 253 N.C. 652, 661, 118 S.E.2d 5, 11-12
(1961). In Booker, our Supreme Court addressed a situation in
which the claimant had contracted serum hepatitis following
accidental contact with infected blood cells in the laboratory
where he worked. 297 N.C. at 462, 256 S.E.2d at 192-93.
Although the claimant’s condition did not fall within the strict
definition of an “occupational disease,” in that it had not
developed gradually, our Supreme Court nevertheless held that
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the claimant’s condition constituted a compensable occupational
disease. Id. at 474, 256 S.E.2d at 199-200. Drawing support
from decisions in other jurisdictions that had considered and
upheld workers’ compensation awards predicated upon communicable
diseases, e.g., Ritter v. Hawkeye-Security Ins. Co., 178 Neb.
792, 795, 135 N.W.2d 470, 472 (1965) (upholding disability award
to dishwasher who developed contact dermatitis as a result of
using cleansing chemicals in his work); and Russell v. Camden
Cmty. Hosp., 359 A.2d 607, 611-12 (Me. 1976) (upholding award to
nurse’s aide who contracted tuberculosis from her patients), the
Booker court concluded that “the claimant’s job exposed him to a
greater risk of contracting the disease than members of the
public or employees in general” and that this finding supported
the Commission’s conclusion “that serum hepatitis is a disease
‘characteristic of and peculiar to his occupation of lab
technician.’” Booker, 297 N.C. at 474, 256 S.E.2d at 200.
Booker thus stands for the proposition that an employee who
contracts a communicable disease through contact or exposure in
the workplace will not be denied relief merely because the
disease is not one that develops gradually over time. Id.However, Booker affords no relief to Plaintiff in the present
case, since Plaintiff’s condition bears little resemblance to a
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communicable disease, such as serum hepatitis; nor does it
resemble any of the occupational diseases enumerated under N.C.
Gen. Stat. § 97-53 (13). In our view, Booker exemplifies proper
application of the catchall provision – to deem compensable
conditions which bear the indicia of a compensable occupational
disease but are not enumerated in the statute and does not pass
muster under the Rutledge test due to unique circumstances that
have not previously been considered. The instant case does not
present such circumstances; and perhaps this was the sentiment
expressed by the Commission in its statement that to grant
Plaintiff relief under these circumstances would be to “turn the
established law regarding occupational diseases in North
Carolina on its head.” Regardless, we now hold that Plaintiff’s
condition – an acute injury consisting of a medial meniscus tear
in the right knee – does not constitute a compensable
occupational disease as contemplated under N.C. Gen. Stat. § 97-
53 (13).
Plaintiff does not challenge any of the Commission’s
factual findings and predicates this appeal solely upon his
contention that the Commission erred in its application of the
law to its findings. Accordingly, for the reasons stated above,
we affirm the Commission’s 6 March 2013 opinion and award.
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AFFIRMED.
Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).