Workers' Compensation--fibromyalgia--occupational disease--
insufficiency of evidence
The Industrial Commission properly found in a workers'
compensation action that plaintiff does not have a compensable
occupational disease where the Commission found that plaintiff
has fibromyalgia and that it was caused or aggravated by her
employment but that there was no medical evidence that
plaintiff's employment placed her at an increased risk of
contracting or developing fibromyalgia. Findings regarding the
nature of a disease must ordinarily be based upon expert medical
testimony; here, none of the lay witnesses testified regarding
any basis of knowledge as to the medical nature of plaintiff's
condition or as to whether plaintiff's employment subjected her
to a greater risk of contracting fibromyalgia than the general
public and none of the medical witnesses expressed an opinion as
to whether plaintiff's employment or occupation subjected her to
a greater risk of contracting the disease.
Kuehnert Bellas & Bellas, PLLC, by Eric R. Bellas, and Daniel
Law Firm, PA, by Stephen T. Daniel, for plaintiff-appellant.
Morris York Williams Surles & Barringer, LLP, by G. Lee Martin
and Kelly F. Miller, for defendant-appellee.
WYNN, Judge.
Plaintiff appeals from an opinion and award of the Industrial
Commission denying her claim for compensation arising out of an
alleged occupational disease.
Compensation under the Workers' Compensation Act may be
awarded for “[a]ny disease . . . which is proven to be due to
causes and conditions which are characteristic of and peculiar toa 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)
(1999). Thus, for a disease to be compensable under this statute,
“two conditions must be met: (1) It must be 'proven to be due to
causes and conditions which are characteristic of and peculiar to
a particular trade, occupation or employment'; and (2) it cannot be
an 'ordinary disease of life to which the general public is equally
exposed outside of the employment.'” Booker v. Duke Med. Ctr., 297
N.C. 458, 468, 256 S.E.2d 189, 196 (1979). Whether a given illness
or disease fits within the definition of an occupational disease
under N.C. Gen. Stat. § 97-53(13) is a mixed question of law and
fact. See Wood v. J.P. Stevens & Co., 297 N.C. 636, 640, 256
S.E.2d 692, 695 (1979). The claimant bears the burden of proving
the existence of an occupational disease. See Gay v. J.P. Stevens
& Co., 79 N.C. App. 324, 331, 339 S.E.2d 490, 494 (1986).
Plaintiff began working for the defendant-employer in 1975 and
continued to work for the employer through 1996. In 1981 plaintiff
began operating a splicing machine. As operator of the splicing
machine, plaintiff was responsible for feeding strips of veneer
into the machine. Plaintiff performed this job by leaning forward
over the machine and pushing the strips, weighing less than one
pound, with her arms. Plaintiff also worked as a “tailer.” In this
capacity plaintiff caught and stacked sheets of veneer strips as
they exited from the splicing machine. This job also required
plaintiff to use her arms, although not as quickly or as often asshe did when operating the splicing machine. Plaintiff also worked
as a “patcher,” repairing cracks and other defects in strips or
sheets of veneer. She manually applied tape to the defective
veneer.
Plaintiff first began to notice a physical problem in July of
1995 when she observed the appearance of a knot on the back of her
neck. She experienced burning and stinging sensations across her
shoulders that disappeared over time. She then began to experience
pain in her back. She initially consulted a chiropractor for
treatment. After obtaining unsatisfactory results, in September of
1995 she consulted her family physician, Dr. Clay W. Richardson,
who diagnosed her as having fibromyostitis or fibromyalgia.
Plaintiff subsequently consulted a number of other medical
specialists seeking diagnosis and treatment of her condition. All
but one, Dr. Franciso A. Naveira, a specialist in chronic pain
management, diagnosed plaintiff as having fibromyalgia. Dr.
Naveira diagnosed plaintiff's condition as myofascial pain
syndrome.
Plaintiff did not work from March 1996 until October 1996,
when she returned to work for the employer as a splicing machine
operator. In March 1997 she changed jobs to a tailer. As of the
date of the hearing before the deputy commissioner on 26 March
1998, she was employed by defendant as a tailer working a full
forty-hour week.
The Commission found that plaintiff has fibromyalgia and that
her fibromyalgia was caused or aggravated by her employment with
defendant. However, because there was no medical evidence thatplaintiff's employment with defendant placed her at an increased
risk of contracting or developing fibromyalgia as compared to the
general public not so employed, the Commission concluded that her
fibromyalgia “was not due to causes or conditions that were
characteristic of and peculiar to her employment with defendant
and, therefore, was not an occupational disease.”
Plaintiff contends that the foregoing conclusion of the
Commission is incorrect. She argues she proved that her employment
as a splicing machine operator placed her at a greater risk of
contracting fibromyalgia than the general public. She relies upon
testimony of the medical experts whereby they indicated a causal
relation existed between plaintiff's condition and her employment.
She also relies upon the testimony of three co-workers who
performed the job of splicer operator and who indicated they
experienced similar burning sensations and knots in their upper
backs and shoulders as a result of performing the job. Plaintiff
also 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.
First, we note that not only must a claimant prove that a
disease is caused by the employment, but that the disease is
characteristic of persons engaged in the particular trade or
occupation in which the plaintiff is engaged and that the disease
is not an ordinary disease of life to which the general public is
equally exposed. See Hansel v. Sherman Textiles, 304 N.C. 44, 52,
283 S.E.2d 101, 106 (1981). Proof of a causal relationship of thedisease to the employment requires application of a different
factual standard. See Rutledge v. Tultex Corp., 308 N.C. 85, 301
S.E.2d 359 (1983).
Second, with 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.”
Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 167, 265
S.E.2d 389, 391 (1980). 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.'” Gillikin v. Burbage, 263 N.C. 317,
325, 139 S.E.2d 753, 760 (1965) (quote omitted). Therefore,
findings regarding the nature of a disease--its characteristics,
symptoms, and manifestations--must ordinarily be based upon expert
medical testimony. See Wood, 297 N.C. at 640, 256 S.E.2d at 695.
In the present case none of the lay witnesses testified
regarding any basis of knowledge as to the medical nature of
plaintiff's condition or as to whether plaintiff's employment
subjected her to a greater risk of contracting fibromyalgia than
the general public. Moreover, although they testified that they
experienced similar symptoms as plaintiff, none of plaintiff's co-
workers testified that they had consulted a physician and had beendiagnosed with fibromyalgia. Consequently, their testimony could
not have provided a basis for a finding that plaintiff's employment
subjected her to a greater risk for contracting fibromyalgia.
Further, none of the medical witnesses expressed an opinion as
to whether plaintiff's employment or occupation subjected her to a
greater risk of contracting the disease. In fact, Dr. Naveira,
upon whose deposition testimony plaintiff places great reliance,
testified that he could not recall ever having as a patient a
splicer operator with fibromyalgia.
We hold the Commission properly found and concluded, based
upon the evidence presented, that plaintiff does not have a
compensable occupational disease. We therefore affirm the opinion
and award.
Affirmed.
Chief Judge EAGLES and Judge HORTON concur.
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