How to access the above link?
Workers' Compensation_occupational disease_-chemical sensitivity--injury--speculative causation
The Industrial Commission did not err in a workers' compensation case arising from a
claim for an occupational disease under N.C.G.S. § 97-53 for chemical sensitivity by finding no
compensable injury, because: (1) an individual's personal sensitivity to chemicals does not result
in an occupational disease compensable under our workers' compensation scheme, and there was
competent evidence as to plaintiff's personal sensitivities predating her naphthalene exposure;
and (2) the expert testimony failed to establish a causal connection between plaintiff's disease
and defendant when it relied on mere speculation or possibility in concluding that plaintiff's
exposure to naphthalene at defendant's workplace was the cause of her subsequent symptoms.
Edwards & Ricci, P.A., by Kenneth R. Massey, for plaintiff-
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Maura K. Gavigan and Bettina Mumme, for defendant-appellees.
Amanda Gay Hayes (plaintiff) appeals an order from the Full Industrial Commission entered 8 January 2004 finding no compensable injury. As we find no error in the Commission's findings, we affirm this order.
The evidence presented to the Commission tended to show that plaintiff was employed by Tractor Supply Company (defendant) from August 1992 through 8 October 1999. Plaintiff began work at defendant's Rocky Mount location in 1995, and remained there until1999. Beginning in the fall of 1998, plaintiff began experiencing a significant increase in headaches, sinusitis, and bronchitis, for which she sought treatment. Her physicians at that time diagnosed the problem as hormonal.
In late September and early October of 1999, plaintiff was absent from work due to vacation. During that period, the area in which the store was located was affected by Hurricane Floyd. This weather event led to the store stocking a product known as Snake-A- Way, an odoriferous product containing the chemical naphthalene, for the first time since plaintiff had been in defendant's employ. The displays of Snake-A-Way were located in the vicinity of plaintiff's work area when she returned to work on 8 October 1999. Plaintiff complained about the smell to her manager and reported watery eyes and a scratchy throat.
On 9 October 1999, plaintiff discovered an outbreak of severe urticaria, commonly known as hives, and sought medical treatment from the Nash General Emergency Room several times within a twenty- four hour period. Plaintiff was ultimately hospitalized due to the severity of the hives. After review by several physicians, plaintiff was diagnosed as having chemical sensitivity.
Plaintiff continued to experience outbreaks of hives of varying severity over the following months. Plaintiff attempted to work in an elementary school program, but developed a reaction to cleaning supplies kept in a janitor's closet. Plaintiff also attempted employment at a veterinary clinic, but developed areaction while using a flea and tick shampoo for dogs which contained pytherins.
Plaintiff filed a workers' compensation claim against defendant for two matters, one of which involved a knee injury unrelated to this appeal. Plaintiff's claim as to her occupational disease was heard by the deputy commissioner on 6 March 2001, who found plaintiff suffered from an occupational disease and awarded her temporary total disability for her condition. Defendant appealed the order to the Full Commission. The Full Commission reversed the deputy commissioner on 8 January 2004, finding plaintiff had failed to establish an occupational disease within the requirements of N.C. Gen. Stat. § 97-53(13) (2003). Plaintiff appeals from this order.
We first note the standard of review for appeals from the North Carolina Industrial Commission. It is well settled that [i]n reviewing a decision of the Commission, this Court 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.' Craven v. VF Corp., 167 N.C. App. 612, 615-16, 606 S.E.2d 160, 162 (2004) (citations omitted). Such findings supported by competent evidence are conclusive on appeal, even if there is plenary evidence for contrary findings. See Jarrett v. McCreary Modern, Inc., 167 N.C. App. 234, 238, 605 S.E.2d 197, 200 (2004). 'An appellate court does not have the right to weigh the evidence and decide the issue on the basis of its weight. The court's duty goes no further thanto determine whether the record contains any evidence tending to support the finding.' Allen v. SouthAg Mfg. 167 N.C. App. 331, 334, 605 S.E.2d 209, 211-12 (2004) (citations omitted).
Plaintiff contends that the Commission erred in finding plaintiff failed to meet her burden of proof in her claim of an occupational disease, chemical sensitivity, under N.C. Gen. Stat. § 97-53(13). We disagree.
A claim for an occupational disease not otherwise recognized in N.C. Gen. Stat. § 97-53 of our workers' compensation statutes may be established under the provision of § 97-53(13). See James v. Perdue Farms, Inc., 160 N.C. App. 560, 561-62, 586 S.E.2d 557, 559 (2003). A plaintiff bears the burden of proof in showing she meets the requirements of the statute. Id. In Rutledge v. Tultex Corp., 308 N.C. 85, 301 S.E.2d 359 (1983), our Supreme Court held that:
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.
Id. at 93, 301 S.E.2d at 365 (citations omitted).
*** Converted from WordPerfect ***