Appeal by plaintiff from opinion and award entered 1 March
2001 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 23 May 2002.
The Jernigan Law Firm, by N. Victor Farah and Gina E.
Cammarano, for plaintiff-appellant.
Hedrick, Eatman, Gardner, & Kincheloe, L.L.P., by Thomas M.
Morrow, for defendant-appellees.
MARTIN, Judge.
Plaintiff appeals from an opinion and award of the North
Carolina Industrial Commission, rejecting her claim for workers'
compensation benefits as a result of her contracting the hepatitis
C virus. The evidence presented to the deputy commissioner and
reviewed by the Full Commission tended to show that plaintiff was
employed by Tammy Lynn Center (“Center” or “defendant-employer”)
from October 1989 until February 1995. The Center is a residential
facility serving persons with severe and profound developmental
disabilities and mental retardation. Plaintiff initially worked as
an habilitation aide; as part of these duties, plaintiff assisted
patients with “bathing, feeding, brushing teeth, shaving, clotheswashing, and other activities related to personal hygiene.”
Plaintiff worked in this capacity for one year, when she was
transferred to a classroom setting at the Center as a teacher's
aide. Although she was not required to bathe or shave residents in
her new job capacity, she was called upon to clean residents when
they soiled themselves due to vomiting, menstruation, or bowel
movements. She also fed them and assisted them with brushing their
teeth.
In 1991, the Center implemented a plan to protect employees
from exposure to blood, which included wearing protective gloves
when undertaking a task which could expose residents or employees
to blood and/or infection. Plaintiff followed this new procedure
during part of her employment at the Center.
Plaintiff was diagnosed with the hepatitis C virus in 1994.
Thereafter, plaintiff filed a claim for workers' compensation
benefits, contending she contracted hepatitis C while employed at
the Center. Plaintiff testified that she was exposed to the blood
of residents while employed at the Center. She stated that she
understood exposure to blood to be when “someone else's blood
entered into a scratch or something or the other [sic] of my body,
and it actually got in my body.” Plaintiff identified the
following residents as those to whose blood she may have been
exposed: Jeff B., Tim A., Terry R., Kristen C., Jimmy M., Deborah
C., Lauren F., Tim C., Steven E., Lindsey W., Lisa W., Haley C.,
June N., Alicia D., Melissa E., and Eric P. Plaintiff testified
that she recalled working with several other residents, but thatshe could not remember whether she could have been exposed to the
blood of these individuals.
After plaintiff brought her claim for workers' compensation
benefits, defendant-employer attempted to determine whether any
resident of the Center carried the virus which could have infected
plaintiff. Defendant-employer reviewed its Employee
Accident/Incident Reports involving plaintiff, as well as the
Client Accident/Incident Reports which directly or indirectly
involved plaintiff. In addition, defendant-employer reviewed every
incident report involving the residents to whose blood plaintiff
claimed to have been exposed during her employment at the Center.
Further, defendant-employer searched its personnel records and
safety committee records. Jan Pope, director of nursing at the
Tammy Lynn Center, testified that out of four incidents which
plaintiff reported in written form during her employment at the
Center, only one incident involved a patient biting plaintiff which
could have exposed her to blood infected with the hepatitis C
virus. This particular patient, Tim A., died in 1997, and an
autopsy performed on him revealed no liver disease. Further,
during his last hospitalization prior to his death, Tim A. tested
negative for all strains of hepatitis. Plaintiff eventually
identified fifteen residents to whose blood she may have been
exposed while employed at the Center; thereafter, defendant-
employer attempted to have the blood tested of each of these
individuals. Consensual testing of ten of the individuals was
completed; none were found to be positive for the hepatitis virus. Two patients refused to have the test taken because their parents
believed the presence of the virus was not medically indicated; the
parent of one patient refused because of the trauma of the blood
draw; one patient died in 1993 and no autopsy had been performed,
and one patient could not be located. Nevertheless, none of the
medical records from these five patients who would not or could not
be tested indicated the presence of the hepatitis C virus, and
plaintiff provided no evidence at the hearing of any direct blood-
to-blood contact with any of these five patients whose hepatitis C
status was not known. Jan Pope testified that her staff found
“nothing to indicate that anyone that had been there [a resident at
the Center] ever had hepatitis C.”
Plaintiff testified that she had never received a blood
transfusion prior to 1994, never had a tattoo, never shared
intravenous needles, never shared intra-nasal devices, and never
engaged in sex with multiple sexual partners. Plaintiff had been
married twice; although her current husband tested negative for
hepatitis C, plaintiff did not know whether her first husband had
been tested for the virus. Plaintiff's daughter also tested
negative for hepatitis C.
The parties have stipulated that plaintiff has been totally
disabled since she quit work on 23 February 1995 because of her
hepatitis C infection. The Full Commission made the following
findings of fact:
24. Of those residents with whose blood
plaintiff most likely came into contact the
majority were proven to not have hepatitis C.
There is no evidence of record that plaintiffcame into contact with blood infected with the
hepatitis C virus while employed by defendant-
employer. Further, there is no evidence of
record that the hepatitis C virus was ever
present in plaintiff's work environment while
she was employed by defendant-employer.
. . .
26. The greater weight of the evidence shows
only that plaintiff's employment exposed her
to the blood of other persons and that this
exposure to blood placed her at an increased
risk of contracting hepatitis C as compared to
persons not so employed.
27. There is insufficient evidence of record
to prove that plaintiff was exposed to or
contracted hepatitis C virus while employed by
defendant.
Based on these findings, the Commission concluded that plaintiff
was not entitled to compensation under G.S. § 97-53(13).
Plaintiff's motion for reconsideration of the opinion and award was
denied by the Industrial Commission. Plaintiff appeals.
_______________
By two arguments in support of eight assignments of error,
plaintiff contends on appeal that the Commission erred “in finding
that plaintiff was not exposed to hepatitis C at work” and “in
concluding that plaintiff's hepatitis C infection was not caused by
her employment.” We note at the outset that the Full Commission
made no finding “that plaintiff was not exposed to hepatitis C at
work”; rather, the Commission found that insufficient evidence was
presented to prove that plaintiff was exposed to or contracted the
hepatitis C virus while employed by defendant-employer.
When reviewing an opinion and award of the Industrial
Commission, this Court is limited to a determination of “(1)
whether the findings of fact are supported by competent evidence,and (2) whether the conclusions of law are supported by the
findings.”
Barham v. Food World, Inc., 300 N.C. 329, 331, 266
S.E.2d 676, 678,
reh'g denied, 300 N.C. 562, 270 S.E.2d 105 (1980)
(citation omitted). Findings of fact of the Industrial Commission
“are conclusive on appeal when supported by competent evidence,
even though there be evidence that would support findings to the
contrary.”
Jones v. Myrtle Desk Co., 264 N.C. 401, 402, 141 S.E.2d
632, 633 (1965). “The evidence tending to support plaintiff's
claim is to be viewed in the light most favorable to plaintiff, and
plaintiff is entitled to the benefit of every reasonable inference
to be drawn from the evidence.”
Adams v. AVX Corp., 349 N.C. 676,
681, 509 S.E.2d 411, 414 (1998),
reh'g denied, 350 N.C. 108, 532
S.E.2d 522 (1999) (citation omitted). We review the Commission's
conclusions of law, however,
de novo.
Snead v. Carolina Pre-Cast
Concrete, Inc., 129 N.C. App. 331, 499 S.E.2d 470,
cert. denied,
348 N.C. 501, 510 S.E.2d 656 (1998).
Plaintiff has been diagnosed with hepatitis C, which is not
one of the enumerated diseases listed in G.S. § 97-53.
Accordingly, plaintiff must establish that her disease fits within
G.S. § 97-53(13), which permits a party to receive benefits under
the Act for
[a]ny 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.
Plaintiff has the burden of proving that she suffers from an occupational disease which is compensable under G.S. § 97-53(13).
Norris v. Drexel Heritage Furnishings, Inc./Masco, 139 N.C. App.
620, 534 S.E.2d 259 (2000),
cert. denied, 353 N.C. 378, 547 S.E.2d
15 (2001). To establish a claim for compensation under G.S. § 97-
53(13), the plaintiff must prove:
(1) the disease is characteristic of and
peculiar to persons engaged in a particular
trade or occupation in which the plaintiff is
engaged; (2) “the disease is not an ordinary
disease of life to which the public is equally
exposed;” and (3) there is a causal connection
between the disease and the plaintiff's
employment.
Pressley v. Southwestern Freight Lines, 144 N.C. App. 342, 346, 551
S.E.2d 118, 120 (2001) (citing
Hansel v. Sherman Textiles, 304 N.C.
44, 52, 283 S.E.2d 101, 106 (1981)). The degree of proof required
of a plaintiff to establish a claim for benefits is the “'greater
weight' of the evidence or 'preponderance' of the evidence.”
Phillips v. U.S. Air, Inc., 120 N.C. App. 538, 541, 463 S.E.2d 259,
261 (1995),
affirmed, 343 N.C. 302, 469 S.E.2d 552 (1996) (citation
omitted).
In the present case, the Commission found that the record
evidence established that plaintiff's employment at the Center
exposed her to an increased risk of contracting hepatitis C as
compared to members of the public not so employed. However, the
statute also requires proof of causation between the increased risk
of exposure by reason of the employment and the contraction of the
occupational disease.
See Booker v. Duke Medical Center, 297 N.C.
458, 475, 256 S.E.2d 189, 200 (1979) (“The final requirement in
establishing a compensable claim under subsection (13) is proof ofcausation.”) In
Booker, the North Carolina Supreme Court
outlined
three areas for consideration when utilizing circumstantial
evidence to prove causation:
(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. at 476, 256 S.E.2d at 200 (citations omitted). In
Booker, the
plaintiff's supervisor testified that the plaintiff had come in
contact with blood samples containing the hepatitis virus “at least
once a day” while employed as a lab technician at Duke Medical
Center.
Id. at 474, 256 S.E.2d at 199.
In the instant case, however, the Commission found plaintiff
had failed to prove by the greater weight of the evidence her
exposure to the disease or the disease-causing agent while working
for defendant-employer. Plaintiff submitted one incident report
during her employment at the Center which involved the potential
exposure to a resident's blood. The resident, “Tim A.,” died in
1997, and his autopsy revealed no liver disease; in fact, during
Tim A.'s last hospitalization, he was tested for all the hepatitis
strains and the results were negative. In spite of the absence of
incident reports detailing plaintiff's possible exposure to other
residents' blood, plaintiff was subsequently able to recall
incidents with fifteen other residents to whose blood she was
exposed, and who she contends may have infected her. Defendant-
employer tested ten of those fifteen residents; all ten tested
negative for hepatitis. Plaintiff was unable to provide evidenceof blood-to-blood contact with any of the five remaining residents
who were not tested.
Nevertheless, plaintiff argues that the Industrial Commission
failed to make the proper finding regarding plaintiff's increased
exposure at work based upon the circumstantial evidence presented
because the Commission was without this Court's reasoning in the
recent case of
Pressley v. Southwestern Freight Lines, 144 N.C.
App. 342, 551 S.E.2d 118 (2001). In
Pressley, the plaintiff
claimed that he had contracted coccidioidomycosis due to exposure
to the coccidioidomycosis fungus while on a trip to California in
connection with his employment as a long-distance truck driver.
The fungus is indigenous to the southwestern United States but is
not present east of the Mississippi River. The Commission
determined that plaintiff's employment placed him at an increased
risk of contracting the disease as compared to the general public;
and that plaintiff had satisfied his burden of proving that he had,
in fact, contracted the disease due to such exposure. We affirmed,
holding that the term “general public” pertained to the general
public of North Carolina, so that plaintiff's employment requiring
him to travel to the southwestern United States did place him at an
increased risk of exposure as compared to the general public of
North Carolina where the fungus is not present. We also held that
evidence that plaintiff became symptomatic within two weeks of his
trip supported the Commission's finding and conclusion that
plaintiff had satisfied his burden of proving causation.
By contrast, plaintiff in the present case presented noevidence that she was exposed to the hepatitis C virus while
employed at the Center; she relies on her alleged blood-to-blood
exposure with residents at the Center as sufficient proof of
causation. However, exposure to blood, standing alone, is not
sufficient evidence of exposure to the hepatitis C virus; the
holding in
Booker requires proof of exposure “to the disease or
disease-causing agents during employment.”
Booker v. Duke Medical
Center, 297 N.C. at 476, 256 S.E.2d at 200. Uninfected blood
cannot be characterized as a disease-causing agent. Rather, the
disease-causing agent is the hepatitis C virus, which can be found
in blood
infected with the virus.
Plaintiff also argues the Full Commission failed to consider
competent evidence of causation, specifically the deposition
testimony of Dr. Robert S. Brown, M.D., a specialist in the area of
liver disease, who testified that, “[b]ased on the testimony that
I reviewed and evidence that I reviewed and stipulations that I
have been given, more likely than not she got it [the Hepatitis C
virus] at the Tammy Lynn Center. No where else.” Dr. Brown also
stated that his conclusion was based in part on plaintiff's
testimony regarding her alleged exposure to blood at the Center:
“[I]t depends on your belief in her [plaintiff's] honesty.” The
Full Commission, however, specifically refused to accept as
credible portions of plaintiff's testimony regarding her
recollection of having open wounds on her body which came in
contact with residents' blood. Moreover, as explained above,
findings of fact are conclusive on appeal “when supported bycompetent evidence, even though there be evidence that would
support findings to the contrary.”
Jones v. Myrtle Desk Co., 264
N.C. at 402, 141 S.E.2d at 633.
On this record, taking the evidence in a light most favorable
to plaintiff, and giving plaintiff the benefit of every reasonable
inference to be drawn from the evidence,
Adams v. AVX Corp, supra,
we cannot say the Full Commission erred in finding that plaintiff
had not proved that she was exposed to or contracted hepatitis C by
reason of her employment with defendant. The Commission's
findings, in turn, support its conclusion that plaintiff's
hepatitis C infection was not caused by her employment with
defendant. Plaintiff's assignments of error to the contrary are
overruled. The Commission's opinion and award are affirmed.
Affirmed.
Judges TIMMONS-GOODSON and THOMAS concur.
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