Briggs v. Debbie's Staffing

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-778
Filed: 6 March 2018
North Carolina Industrial Commission, I.C. No. 13-005153
WILLARD BRIGGS, Employee, Plaintiff
v.
DEBBIE’S STAFFING, INC., Employer, N.C. INS. GUAR. ASS’N, Carrier;
EMPLOYMENT PLUS, Employer, N.C. INS. GUAR. ASS’N; and PERMATECH,
INC., Employer, CINCINNATI INS. CO., Carrier, Defendants.
Appeal by plaintiff from opinion and award entered 31 March 2017 by the
North Carolina Industrial Commission. Heard in the Court of Appeals 29 November
2017.
Wallace and Graham, P.A., by Edward L. Pauley, for plaintiff-appellant.
Teague Campbell Dennis & Gorham, LLP, by John A. Tomei and Matthew D.
Flammia, for defendants-appellees Employment Plus and NCIGA.
Muller Law Firm, PLLC, by Tara Davidson Muller, and Anders Newton, PLLC,
by Gregg Newton, for defendants-appellees Permatech and Cincinnati
Insurance.
Cranfill Sumner & Hartzog LLP, by Buxton S. Copeland and Tracy C. Myatt,
for defendants-appellees Debbie’s Staffing and NCIGA.
DAVIS, Judge.
In this workers’ compensation appeal, we revisit the issue of whether an
employee is required to present expert medical evidence in order to establish that the
conditions of his employment placed him at a greater risk than members of the
BRIGGS V. DEBBIE’S STAFFING, INC.
Opinion of the Court
general public for contracting a disease. Willard Briggs appeals from the opinion and
award of the North Carolina Industrial Commission denying his claim for workers’
compensation benefits in which he alleged that his asthma resulted from his working
conditions. Because we conclude the Industrial Commission properly found that
Briggs failed to offer expert medical evidence showing that his job actually placed
him at a greater risk of contracting asthma, we affirm.
Factual and Procedural Background
The facts of this case involve events that occurred during Briggs’ employment
with Permatech, Inc. (“Permatech”) and two staffing agencies — Debbie’s Staffing,
Inc. (“Debbie’s Staffing”) and Employment Plus. Briggs worked for Permatech from
14 June 2010 to 25 April 2012. Permatech and Debbie’s Staffing served as his joint
employers from 14 June 2010 to 22 April 2012. Permatech and Employment Plus
served as his joint employers from 23 April 2012 to 25 April 2012.
Permatech is a refractory manufacturer that makes “precast troughs and
molds that are used in the molten metal industry.” Briggs worked as a ceramic
technician at the Permatech facility in Graham, North Carolina. A portion of his time
was spent working on a “Voeller” machine — a large, circular mixing machine
containing a blade that mixes dry ingredients with water. Briggs also worked on
“smaller molds in other areas of the plant or helping to cast small parts.” The dry
ingredients that were mixed in the Permatech machines included “alumina silicate,
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cement (calcium aluminate), cristobalite, quartz, fused silica, fumed silica, and silicon
carbide . . . .”
Due to the dusty environment created by the Voeller machine, Permatech
employees were required to wear respiratory protection masks while working around
the machine. Briggs was provided with a P95 mask, “which filters out 95 percent of
the airborne particulate that is respirable.” In addition, near the end of his
employment at Permatech, he was given a P100 cartridge respirator, which “had a
99.9% filtration rate for airborne particulate.”
Briggs was terminated from his employment at Permatech for attendance-
related issues. He subsequently filed a Form 18 (Notice of Accident) on 5 November
2013, alleging that he had “developed COPD and asthma as a result of working as a
Voeller technician . . . .” Employment Plus and Debbie’s Staffing each filed a Form
61 in which they asserted that Briggs “did not suffer a compensable occupational
disease arising out of and in the course of his employment . . . .”
On 8 October 2015, a hearing was held before Deputy Commissioner J. Brad
Donovan. Briggs testified in support of his claim at the hearing. Depositions were
later taken of Dr. Dennis Darcey and Dr. Douglas McQuaid as well as of two
vocational experts.
Dr. McQuaid, a pulmonary and critical care physician employed by LeBauer
HealthCare, testified that Briggs had come to his office complaining of shortness of
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breath and wheezing. He opined that Briggs’ condition had been caused by the
substances he was exposed to at the Permatech facility. He conceded, however, that
he was unaware of the fact that Briggs had (1) smoked cigarettes during breaks at
work; (2) been given a respirator mask for use during work hours; (3) a history of
marijuana usage; and (4) previously been treated for allergies with albuterol.
Dr. Darcey, the Division Chief of Occupational and Environmental Medicine
and the Medical Director of the Occupational Medicine Clinic at Duke University,
testified that Briggs’ asthma likely predated his employment with Defendants
because his medical records established that he “already had a reactive airway before
he began working at the Permatech facility.” He did state, however, his belief that
Briggs’ asthma had been aggravated during his employment at Permatech.
On 18 May 2016, the deputy commissioner issued an opinion and award
concluding that “[b]ased upon the preponderance of evidence in view of the entire
record . . . [Briggs] has met his burden and is temporarily totally disabled from
employment as a result of his occupational disease and is entitled to temporary total
disability compensation at the rate of $213.27 per week for the period beginning on
25 April 2012 and continuing.” Defendants appealed to the Full Commission.
On 31 March 2017, the Full Commission issued an Opinion and Award
reversing the deputy commissioner’s decision and denying Briggs’ claim for benefits.
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Commissioner Bernadine S. Ballance dissented. On 4 April 2017, Briggs filed a
timely notice of appeal.
Analysis
Appellate review of an opinion and award of the Industrial Commission is
typically “limited to consideration of whether competent evidence supports the
Commission’s findings of fact and whether the findings support the Commission’s
conclusions of law.” Philbeck v. Univ. of Mich., 235 N.C. App. 124, 127, 761 S.E.2d
668, 671 (2014) (citation and quotation marks omitted). “The findings of fact made
by the Commission are conclusive on appeal if supported by competent evidence even
if there is also evidence that would support a contrary finding. The Commission’s
conclusions of law, however, are reviewed de novo.” Morgan v. Morgan Motor Co. of
Albemarle, 231 N.C. App. 377, 380, 752 S.E.2d 677, 680 (2013) (internal citation
omitted), aff’d per curiam, 368 N.C. 69, 772 S.E.2d 238 (2015).
“For an injury or death to be compensable under our Workmen’s Compensation
Act it must be either the result of an ‘accident arising out of and in the course of the
employment’ or an ‘occupational disease.’” Booker v. Duke Med. Ctr., 297 N.C. 458,
465, 256 S.E.2d 189, 194 (1979) (citation omitted). N.C. Gen. Stat. § 97-53(13)
provides that a disease is considered occupational if it 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
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general public is equally exposed outside of the employment.” N.C. Gen. Stat. § 97-
53(13) (2017).
Our Supreme Court has held that in order
[f]or 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./Kings Yarn, 308 N.C. 85, 93, 301 S.E.2d 359, 365 (1983)
(citation, quotation marks, and brackets omitted). The Supreme Court has made
clear that “[a]ll 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. (citation omitted).
The first two prongs of the Rutledge test “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 (citation omitted). “The greater
risk in such cases provides the nexus between the disease and the employment which
makes them an appropriate subject for workmen’s compensation.” Id. at 94, 301
S.E.2d at 365 (citation and quotation marks omitted).
This Court has explained that
[r]egardless of how an employee meets the causation prong
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(i.e., whether it be evidence that the employment caused
the disease or only contributed to or aggravated the
disease), 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.
Futrell v. Resinall Corp., 151 N.C. App. 456, 460, 566 S.E.2d 181, 184 (2002) (citation
omitted and emphasis added), aff’d per curiam, 357 N.C. 158, 579 S.E.2d 269 (2003).
In the present case, the Commission’s Opinion and Award contained the
following pertinent findings of fact:
1. Plaintiff is a thirty-two-year-old high school
graduate who worked primarily as a restaurant cook and
lawn care worker before obtaining vocational training in a
forestry fire fighter program through Job Corps. Prior to
Plaintiff’s involuntary termination from the Job Corps
program in 2008, he was noted to complain of wheezing
during medical visits on May 30, 2007, July 27, 2007, and
January 14, 2008. Plaintiff was also prescribed Albuterol
for his symptoms.
2. Permatech is a refractory manufacturer
which makes precast troughs and molds that are used in
the molten metal industry. Plaintiff worked at Permatech
as a ceramic technician. As a ceramic technician, less than
half of Plaintiff’s time was spent working on the “Voeller”
machine. The remainder of Plaintiff’s time was spent
working on smaller molds in other areas of the plant or
helping to cast small parts.
3. The Voeller machine is a big circular mixing
machine which measures approximately 12 to 13 feet in
diameter and contains a blade which mixes dry ingredients
with water. The dry ingredients which are mixed in the
Voeller machine and the smaller molding machines
Plaintiff would work with were composed of, inter alia,
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alumina silicate, cement (calcium aluminate), cristobalite,
quartz, fused silica, fumed silica, and silicon carbide, all
materials which may cause upper respiratory irritation
and can aggravate preexisting chronic lung conditions.
4. The dry ingredients were taken to the Voeller
machine by a forklift operator, who maneuvers the bag or
bin over a chute which measure[s] approximately 20 inches
by 20 inches and was located at the top of the machine.
Once the bag or bin was in place, about one or two feet
above the chute, Plaintiff would cut a hole in the bottom to
discharge the mix. A plume of dust would surround
Plaintiff as each bag was emptied into the chute and would
stay in the air approximately two to three minutes before
it would settle. After the material and any needed
chemicals were poured into the machine, its blades would
spin, and then water was added in an amount that the
chemist of the plant directed. Operation of the Voeller
machine and cleaning it out created a dusty environment,
but not to the extent or magnitude depicted by Plaintiff in
his testimony. While Plaintiff testified that he dumped 10
to 20 bins or bags per day, Permatech records show that
the above-described process occurred on average 1.9 times
per day.
5. Plaintiff was required to wear respiratory
protection when working around the Voeller machine.
Permatech provided Plaintiff with a P95 mask, which
OSHA has deemed a respirator and which filters out 95
percent of the airborne particulate that is respirable.
Plaintiff wore the P95 mask as required. Towards the end
of Plaintiff’s employment at Permatech, he was provided
with a P100 cartridge respirator, which had a 99.9%
filtration rate for airborne particulate.
6. Dust sampling results for testing done at
Permatech, including personal air monitoring, were all
well below OSHA’s permissible exposure limits, except in
the Moldable Department, where Plaintiff never worked.
The results were also well below the “occupational
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exposure limits” which Permatech’s predecessor in
interest, Alcoa, established internally and which were
more stringent than those set forth by OSHA. The air
sampling results also do not take into account the ten-fold
protection afforded by the P95 mask Plaintiff was required
to wear. While the testing relied upon by Defendants was
done prior to Plaintiff’s employment at Permatech, there
have not been any significant changes in weight or
equipment usage up to and through the time Plaintiff
worked there, so the same testing results would be
expected. Permatech has never been cited by OSHA for
exceeding the regulatory exposure limits for dusts and
chemicals, and no employee other than Plaintiff has
alleged an occupational lung disease from employment at
Permatech.
7. Plaintiff alleges that his breathing problems
began in 2011 while working at the Permatech facility and
developed gradually thereafter. However, he never
complained of breathing problems to anyone at Permatech
or to any medical provider when he was working at
Permatech. Moreover, contrary to what he subsequently
reported to medical providers, Plaintiff continued to smoke
cigarettes during the time he worked at Permatech.
8. On July 18, 2012, almost three months after
he was terminated from his employment at Permatech for
attendance issues, Plaintiff presented to the Emergency
Department at University of North Carolina Hospitals
complaining of wheezing and shortness of breath. Plaintiff
reported that he was experiencing shortness of breath since
November 2011, that at onset he may have had some cold
symptoms, that he initially believed he had developed
bronchitis, but then his symptoms became persistent. He
also reported using asthma medications and that his
symptoms appeared to improve with Albuterol. It is
unclear from the record who had prescribed the asthma
medications he was taking or how long he had been taking
them. Plaintiff underwent a chest x-ray and EKG and the
attending physician ruled out the possibility of interstitial
lung disease.
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....
11. Plaintiff began treatment with Dr. Douglas
McQuaid, who is board-certified in internal medicine,
pulmonary medicine, and critical care medicine, beginning
April 22, 2014 and continuing through September 2014.
Plaintiff was evaluated for the purpose of establishing care
for asthma, a condition he had previously had medical
treatment for, including Albuterol. Plaintiff reported a
history of smoking approximately one-quarter pack per
week for 3 years, quitting in 2005. Plaintiff also reported
that he was directly exposed to silica fibers and chemicals
containing iron particles on a daily basis at his job and that
he developed a cough, shortness of breath, and wheezing
for the first time in his life while working at the Permatech
facility. Plaintiff further reported that he began to produce
black nasal and chest mucus and was not given a respirator
for several months.
12. Plaintiff underwent pulmonary function
testing, which revealed moderate airflow obstruction. This
condition was capable of reversal with a bronchodilator.
Based upon his examination and the testing, Dr. McQuaid
was of the opinion that Plaintiff had asthma. Plaintiff
reported experiencing seasonal allergies and Dr. McQuaid
recommended allergy testing, but Plaintiff declined.
According to Dr. McQuaid, it is important to understand
any allergies an asthmatic person may have because “if
you’re allergic to something and you have asthma, it can
make the asthma symptoms worse.”
13. In response to a letter from Plaintiff’s counsel
dated April 20, 2015, Dr. McQuaid opined that Plaintiff’s
condition was caused by the substances he was exposed to
at the Permatech facility. However, there is no description
of all of the substances and the letter indicates plaintiff did
not use a breathing device. Dr. McQuaid could not
remember seeing any additional documentation setting out
the specific substances used at the Permatech facility. Dr.
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McQuaid did not review material data safety sheets of the
chemicals Plaintiff worked with and did not review
Permatech’s dust sampling results in conjunction with his
evaluation and diagnosis of Plaintiff. Dr. McQuaid was not
familiar with the types of respiratory masks used at the
Permatech facility and used by Plaintiff. Dr. McQuaid
testified that his understanding was that plaintiff “was
exposed to some black stuff.”
14. When Dr. McQuaid testified by deposition, he
initially opined, to a reasonable degree of medical
certainty, that Plaintiff’s asthma was very likely caused by
his environmental exposure at the Permatech facility.
However, Dr. McQuaid did not know that Plaintiff had
smoked cigarettes after 2005, did not know that Plaintiff
had complained of wheezing in 2007 and 2008, and did not
know that Plaintiff wore a respirator mask during the
entirety of his employment at the Permatech facility. Dr.
McQuaid ultimately testified that a different history might
affect his opinions on causation, and that Plaintiff’s
smoking at work after 2005 would be a different history
than the one Plaintiff gave him.
15. On September 29, 2015, Dr. Dennis Darcey
conducted an independent medical examination of Plaintiff
at the request of Defendants Debbie’s Staffing, Inc., and
NCIGA. Dr. Darcey is an expert in occupational and
environmental medicine, industrial hygiene, and
epidemiology and is currently the Division Chief of
Occupational and Environmental Medicine at Duke
University and the Medical Director of Duke’s
Occupational Medicine Clinic. In addition to reviewing
Plaintiff’s medical records, Dr. Darcey reviewed the
material safety data sheets and Permatech’s dust sampling
results in conjunction with his evaluation of Plaintiff. Dr.
Darcey noted Plaintiff’s past history of allergic reaction to
cats, smoking cigarettes and marijuana, and inhalant
abuse.
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16. After ordering a high resolution CT
examination and pulmonary function studies, Dr. Darcey
concluded that Plaintiff suffers from a mild to moderate
case of asthma. Dr. Darcey explained that asthma occurs
when the airways become irritated and inflamed, and that
reactions can be triggered by any number of things.
However, irritant dust does not generally cause new onset
asthma; it is more typically associated with an aggravation
of a preexisting airway hyperreactivity. With regard to
Plaintiff specifically, Dr. Darcey testified that, based on the
history of smoking and allergic responses, Plaintiff had a
reactive airway before he began working at the Permatech
facility, and that Plaintiff’s exposure to dust at Permatech
could have aggravated his preexisting reactive
airway/asthma condition.
17. Based upon a preponderance of the evidence
in view of the entire record, the Full Commission finds that
Plaintiff’s employment was a significant contributing
factor in his development of asthma, to the extent that his
exposure to irritant dust aggravated but did not cause his
asthma.
18. Neither Dr. McQuaid nor Dr. Darcey testified
that Plaintiff’s employment placed him at an increased risk
of contracting, as opposed to aggravating, asthma as
compared to members of the general public not so
employed. During Dr. Darcey’s deposition, Plaintiff’s
counsel introduced two articles which summarized studies
of silicon carbide protection workers in Norway and
Romania. The articles are based upon exposure to dust in
facilities where silicon carbine is made and there is no
evidence that this was similar to the dust exposure at the
Permatech facility. The level of silicon carbide-containing
dust in the studies was significantly higher than the levels
documented at Permatech, and significantly higher than
what Plaintiff could have possibly been exposed to with his
P95 respirator/mask. According to one article, the study
was conducted in a Romanian silicon carbide production
facility where “the overall level of pollution was
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exceptionally high” and the measurement of total dust in
the air was “more than 50 times the maximum level
permitted in Romania.” Furthermore, the articles do not
indicate whether the workers wore respiratory protection
at work. These articles do not support a finding that
Plaintiff’s employment placed him at an increased risk of
contracting asthma.
After setting out its findings of fact, the Commission then made conclusions of
law stating, in relevant part, as follows:
4. In order to satisfy the remaining two prongs
of the Rutledge test, Plaintiff was required to present
competent medical evidence that his exposure to alumina
silicate, cement (calcium aluminate), cristobalite, quartz,
fused silica, fumed silica, silicon carbine alumina, and
other dusts placed him at a greater risk than the general
public of contracting asthma. . . .
5. Plaintiff has failed to prove through
competent expert opinion evidence that his employment at
the Permatech facility placed him at an increased risk of
contracting asthma than the general public. . . .
The only one of the Commission’s findings of fact challenged by Briggs in this
appeal is Finding No. 6. Thus, because the remainder of the Commission’s findings
of fact are unchallenged, they are binding on appeal. See Allred v. Exceptional
Landscapes, Inc., 227 N.C. App. 229, 232, 743 S.E.2d 48, 51 (2013) (“Unchallenged
findings of fact are presumed to be supported by competent evidence and are binding
on appeal.” (citation omitted)).
The interplay between the three prongs of the Rutledge test was explained by
this Court in Futrell. In Futrell, the employee filed a workers’ compensation claim
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contending that he had contracted carpal tunnel syndrome as a result of his
employment as a resin kettle operator. He testified that his job responsibilities
required him to “tear[ ] open fifty-pound bags of chemicals with his hands, us[e] an
axe to bang on drums to loosen their contents, and monitor[ ] kettles.” Futrell, 151
N.C. App. at 457, 566 S.E.2d at 182.
The defendants presented testimony from an orthopedic surgeon who testified
that the “plaintiff’s employment did not place him at a greater risk for developing
carpal tunnel syndrome than the general public.” Id. at 459, 566 S.E.2d at 183. The
Commission determined that “neither of plaintiff’s treating physicians, Drs. Vernon
Kirk and Anthony DiStasio, offered evidence that plaintiff’s job placed him at an
increased risk for development of the disease as compared to the employment
population at large.” Id. Based on its findings, the Commission concluded that the
plaintiff had failed to establish that his carpal tunnel syndrome was compensable
because he had not satisfied the first two prongs of the Rutledge test. Id. at 458, 566
S.E.2d at 183.
We affirmed the Commission’s decision, ruling that its findings were supported
by competent evidence and supported its conclusions of law. In our opinion, we stated
the following:
. . . [T]here 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
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contracting the condition, even where the condition may
have been aggravated but not originally caused by the
plaintiff’s employment. We cannot agree with the dissent’s
position that this reading of Rutledge effectively precludes
recovery in all cases where a claimant does not argue that
his employment caused him to contract the disease. It
simply precludes recovery where a claimant cannot meet
all three well-established requirements for proving an
occupational disease. This is not a novel approach or
reading of Rutledge.
Indeed, if the first two elements of the Rutledge test
were meant to be altered or ignored where a claimant
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 claimant 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
(i.e., whether it be evidence that the employment caused
the disease or only contributed to or aggravated the
disease), 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. at 460, 566 S.E.2d at 184 (internal citations omitted).
Here, the Commission concluded that Briggs had satisfied the third prong of
the Rutledge test by showing that the conditions at the Permatech facility aggravated
his asthma, and this determination is not in dispute. Rather, the key question in this
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appeal is whether Briggs has likewise satisfied the first two prongs of the Rutledge
test.
Briggs asserts that he provided sufficient evidence to demonstrate that his
conditions of employment increased his risk of contracting asthma as compared with
the general public. Specifically, he contends that the evidence he presented in the
form of lay testimony and articles — coupled with basic notions of “common sense” —
was sufficient to meet his burden of proof. Defendants, conversely, argue that Briggs
was required to produce expert medical evidence in order to establish that his
employment conditions placed him at a greater risk for contracting asthma. In order
to analyze this issue, we find it instructive to review the relevant case law from our
appellate courts applying Rutledge.
Norris v. Drexel Heritage Furnishings, Inc., 139 N.C. App. 620, 534 S.E.2d 259(2000), cert. denied, 353 N.C. 378, 547 S.E.2d 15 (2001), involved a worker who
brought a claim for workers’ compensation benefits based on her allegations that her
employment as a splicing machine operator had caused her fibromyalgia. Id. at 622,
534 S.E.2d at 261. The plaintiff offered the testimony of a specialist in chronic pain
management who had diagnosed her with myofascial pain syndrome. He “indicated
a causal relation existed between plaintiff’s condition and her employment.” Id. at
621-22, 534 S.E.2d at 261. Several other medical specialists with whom the plaintiff
had consulted stated that they had diagnosed her disease as fibromyalgia. Id. at 622,
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534 S.E.2d at 261. Additionally, three of the plaintiff’s co-workers testified that “they
experienced similar burning sensation and knots in their upper backs and shoulders
as a result of performing the job.” Id. at 622, 534 S.E.2d at 261.
The Commission found that “the plaintiff had fibromyalgia and that her
fibromyalgia was caused or aggravated by her employment with the defendant.” Id.However, because the Commission concluded that “there was no medical evidence
that plaintiff’s employment with defendant placed her at an increased risk of
contracting or developing fibromyalgia as compared to the general public not so
employed,” it concluded that her fibromyalgia was not an occupational disease. Id.We affirmed the Commission’s decision, stating as follows:
Plaintiff . . . contends that the Commission acted
under a misapprehension of law by requiring medical
evidence to prove plaintiff’s employment subjected her to a
greater risk of developing fibromyalgia than the general
public not so employed. We disagree.
. . . . [W]ith regard to the necessity of proof by expert
medical testimony, our Supreme Court has stated that
where the exact nature and probable genesis of a particular
type of injury involves complicated medical questions far
removed from the ordinary experience and knowledge of
laymen, only an expert can give competent opinion
evidence as to the cause of the injury. . . . It has also stated
that when a layman can have no well-founded knowledge
and can do no more than indulge in mere speculation (as to
the cause of a physical condition), there is no proper
foundation for a finding by the trier without expert medical
testimony. . . . Therefore, findings regarding the nature of
a disease—its characteristics, symptoms, and
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manifestations—must ordinarily be based upon expert
medical testimony.
Id. at 622-23, 534 S.E.2d at 262 (internal citation and quotation marks omitted).
In Chambers v. Transit Mgmt., 360 N.C. 609, 636 S.E.2d 553 (2006), the
employee sought workers’ compensation benefits for a left ulnar nerve entrapment
affecting his elbow and a cervical spine condition affecting his neck. He alleged that
these conditions were caused by his occupation as a bus driver. Id. at 610, 636 S.E.2d
at 554.
The plaintiff offered testimony from Dr. Tim Adamson, a neurosurgeon who
diagnosed him with a “double crush syndrome” and helped describe the relationship
between the two injuries. Id. at 611, 636 S.E.2d at 554. Dr. Adamson also wrote a
letter to the plaintiff’s attorney in which he stated that “plaintiff’s occupation as a
bus driver did place him slightly at higher risk than the general public.” Id. at 614,
636 S.E.2d at 556. At his deposition, he clarified the statements in his letter by
testifying that he was “not able to say that the bus driving activities caused the ulnar
neuropathy, but that it could have aggravated the ulnar neuropathy[.]” Id. at 615,
636 S.E.2d at 557. Based on Dr. Adamson’s opinions, the Commission found that
both of the plaintiff’s injuries were compensable occupational diseases. Id. at 611,
636 S.E.2d at 554.
The Supreme Court reversed the Commission’s award and held that the
“plaintiff ha[d] failed to establish that his employment placed him at a greater risk
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Opinion of the Court
of contracting either his ulnar nerve entrapment or his cervical spine condition than
the general public.” Id. at 614, 636 S.E.2d at 556. The Court focused its analysis on
the medical evidence presented by the plaintiff, holding that even though Dr.
Adamson’s letter stated that the plaintiff was “at higher risk than the general
public[,]” the letter did not “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[.]” Id. at 614-15, 636 S.E.2d at 556. Thus,
the Court concluded that the plaintiff had not met his burden of establishing through
expert medical evidence that his employment placed him at a greater risk than
members of the general public of contracting the diseases. Id. at 615, 636 S.E.2d at
556.
Briggs does not dispute the proposition that he was required to satisfy the first
two prongs of the Rutledge test by showing that his employment at Permatech
exposed him to a greater risk of contracting asthma than the general public. Instead,
he contends that North Carolina courts have never expressly required expert medical
evidence to establish the first two prongs of the Rutledge test. However, based on our
careful reading of Norris and Chambers, we conclude that our case law has, in fact,
consistently required that such evidence be produced in order for these two prongs to
be met. See Thomas v. McLaurin Parking Co., 181 N.C. App. 545, 551, 640 S.E.2d
779, 783 (2007) (affirming denial of benefits where “[n]o evidence was presented by
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Opinion of the Court
either doctor presenting testimony to the Commission that plaintiff’s employment
placed him at a greater risk for contracting degenerative arthritis”).1
The Commission’s unchallenged findings of fact fully support its conclusion
that Briggs failed to offer sufficient medical evidence that the conditions at the
Permatech facility placed him at a greater risk for contracting asthma than the
general public. In Finding No. 17, the Commission found that “Plaintiff’s
employment was a significant contributing factor in his development of asthma, to
the extent that his exposure to irritant dust aggravated but did not cause his asthma.”
In Finding No. 18, the Commission found that “[n]either Dr. Darcey nor Dr. McQuaid
testified that Plaintiff’s employment placed him at an increased risk of contracting,
as opposed to aggravating, asthma as compared to members of the general public not
so employed.” Moreover, as the Commission also noted, Dr. Darcey testified that
“asthma occurs when the airways become irritated and inflamed, and that reactions
can be triggered by any number of things” but that “irritant dust does not generally
cause new onset asthma . . . .”
Briggs also argues that the Commission erred by failing to determine that the
two articles he submitted during Dr. Darcey’s deposition supported a finding that his
1 While Briggs attempts to rely on Caulder v. Waverly Mills, 314 N.C. 70, 331 S.E.2d 646(1985), that case is inapposite. The issue in Caulder was not whether the plaintiff’s employment placed
him at a greater risk than the general public of contracting his disease for purposes of the Rutledge
test. Rather, the question in Caulder involved the entirely separate issue of whether the defendants’
employment was the plaintiff’s “last injurious exposure” to the hazards of the disease from which the
plaintiff suffered. Id. at 72, 331 S.E.2d at 647 (emphasis added).
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BRIGGS V. DEBBIE’S STAFFING, INC.
Opinion of the Court
job at Permatech placed him at an increased risk of contracting asthma. As an initial
matter, these articles are not an adequate substitute for expert medical evidence on
this issue. Furthermore, we note that the Commission made an unchallenged finding
that these articles — which detailed studies of silicon carbide effects on workers in
factories in Norway and Romania — involved working environments in which the
amounts of silicon carbide were significantly higher than those at the Permatech
facility. The Commission also found that the articles did not specify whether the
workers in the study wore respiratory masks for protection as did the workers in the
Permatech facility.
In his final argument, Briggs contends that expert medical evidence was not
required under the circumstances of this case to establish the first two prongs of the
Rutledge test because the facts here did not involve complex questions of science so
much as “common sense.” He argues that “[t]he average person is not exposed to 108
tons of asthma-causing dust” and asserts that any layperson would know that
working in a dusty environment exposes a worker to an increased risk of contracting
asthma.
We are unable to agree with Briggs that the question of whether an individual
can actually contract asthma simply by working in a dusty environment is one that a
layperson could answer. Rather, we believe such a determination is beyond a
layperson’s understanding given that questions as to the root causes of asthma can
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BRIGGS V. DEBBIE’S STAFFING, INC.
Opinion of the Court
only be answered by medical experts.2 See Norris, 139 N.C. App. at 622-23, 534
S.E.2d at 262 (holding that “when a layman can have no well-founded knowledge and
can do no more than indulge in mere speculation (as to the cause of a physical
condition), there is no proper foundation for a finding by the trier without expert
medical testimony”).
Thus, Briggs failed to establish that “[his] employment exposed [him] to a
greater risk of contracting [asthma] than the public generally . . . .” Rutledge, 308
N.C. at 93-94, 301 S.E.2d at 365 (citation omitted). Accordingly, the Commission
properly denied his claim.
Conclusion
For the reasons stated above, we affirm the Commission’s 31 March 2017
Opinion and Award.
AFFIRMED.
Judges TYSON and BERGER concur.
2 We observe that Briggs’ “common sense” argument stands in stark contrast to Dr. Darcey’s
testimony that asthma is generally not caused by irritant dust.
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