Appeal by plaintiff from opinion and award entered 22 August
2006 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 6 June 2007.
Bollinger & Piemonte, PC, by Bobby L. Bollinger, Jr. and
William C. Winebarger, for plaintiff-appellant.
Hedrick Eatman Gardner & Kincheloe, LLP, by Harmony Whalen
Taylor, for defendants-appellees.
Plaintiff Angela Kashino appeals from the North Carolina
Industrial Commission's opinion and award denying her claim for
workers' compensation benefits. The Commission concluded that
plaintiff, who suffers from Lyme disease, failed to carry her
burden of demonstrating that her illness was either a compensableinjury by accident or an occupational disease. Because there is
competent evidence supporting the Commission's finding that
plaintiff failed to prove a causal connection between her Lyme
disease and her employment, we affirm the opinion and award of the
At the time of the hearing before the deputy commissioner in
April 2005, plaintiff was 26 years old. Several years earlier, in
January 2000, plaintiff began working as a veterinary technician
for defendant-employer Carolina Veterinary Specialists Medical
Services. Before her job with defendant-employer, plaintiff worked
as a receptionist in a different animal hospital, but was not
involved in the treatment of animals.
Defendant-employer provides both emergency and ongoing care to
animals. Plaintiff worked primarily in the emergency department,
where she was responsible for a range of activities, including:
carrying and restraining animals, taking vital signs, doing blood
work, taking x-rays, giving medication, cleaning cages, and
preparing animals for surgery. These and other tasks placed
plaintiff in prolonged direct physical contact with hundreds of
Plaintiff testified that she would occasionally spot ticks
crawling on the floor or walls of defendant-employer's facility and
also on the animals that she treated. She would occasionally find
ticks on her body during or after work. Plaintiff specifically
recalled that one day, in February 2001, she was treating aninjured dog named "Scooby Doo," who was infested with ticks and
fleas. According to plaintiff, when she returned home after this
shift, she and her husband discovered and removed two small ticks
attached to her shoulder.
Over a year after this incident, in March or April 2002,
plaintiff began experiencing nausea, vomiting, and headaches while
pregnant with her second child. Plaintiff's symptoms persisted and
worsened, such that in April 2003 she began missing substantial
time at work. She was treated by doctors throughout this period,
but it was not until April or May 2004 that plaintiff was diagnosed
with Lyme disease.
Following the diagnosis of Lyme disease, plaintiff came under
the care of Dr. Joseph Jemsek, an internist specializing in
infectious diseases. In his deposition, Dr. Jemsek explained that
Lyme disease is a tick-borne illness transmitted by deer or black-
legged ticks. He also indicated that current medical evidence
suggests that generally a tick must be attached to its host for
approximately 24 hours in order to transmit the Lyme disease-
After hearing the evidence in this case, Deputy Commissioner
George T. Glenn II concluded that plaintiff was not entitled to
workers' compensation benefits _ for either an injury by accident
or occupational disease _ because she had failed to prove a causal
relationship between the Lyme disease and her job. On 22 August
2006, the Full Commission adopted the deputy commissioner's opinion
and award with modifications. The Full Commission agreed thatplaintiff failed to prove a causal relationship between her
condition and her job, but also concluded that plaintiff failed to
prove that her job placed her at an increased risk of contracting
Lyme disease. Plaintiff timely appealed to this Court.
"[A]ppellate review of an award from the Commission is
generally limited to two issues: (1) whether the findings of fact
are supported by competent evidence, and (2) whether the
conclusions of law are justified by the findings of fact." Johnson
v. Southern Tire Sales & Serv.
, 358 N.C. 701, 705, 599 S.E.2d 508,
512 (2004). The findings of the Commission are conclusive on
appeal when supported by competent evidence, even though there may
be evidence to support a contrary finding. Hilliard v. Apex
, 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982). "In
weighing the evidence, the Commission is the sole judge of the
credibility of the witnesses and the weight to be given to their
testimony, and the Commission may reject entirely any testimony
which it disbelieves." Hedrick v. PPG Indus.
, 126 N.C. App. 354,
357, 484 S.E.2d 853, 856, disc. review denied
, 346 N.C. 546, 488
S.E.2d 801 (1997).
Plaintiff first contends the Commission erred in concluding
that she did not prove that her employment placed her at an
increased risk of contracting Lyme disease. See Rutledge v. Tultex
, 308 N.C. 85, 93-94, 301 S.E.2d 359, 365 (1983) (in order to
establish occupational disease under N.C. Gen. Stat. § 97-53(13)
(2005), plaintiff must show "the employment exposed the worker toa greater risk of contracting the disease than the public
generally"); Minter v. Osborne Co.
, 127 N.C. App. 134, 138, 487
S.E.2d 835, 838 (holding that "[s]ince there is no evidence to
support a finding that plaintiff was at an increased risk of insect
stings, the conclusion that the sting was an accident or injury
arising out of the employment is error and the award of benefits
must be reversed"), disc. review denied
, 347 N.C. 401, 494 S.E.2d
415 (1997). While we agree that plaintiff submitted sufficient
expert testimony to support a finding of increased risk, we must
nonetheless affirm the Full Commission since it was entitled to
conclude, as it did, that plaintiff failed to prove a causal
relationship between her employment and the Lyme disease.
It is well settled that, in order to establish a compensable
occupational disease, the employee must show "'a causal connection
between the disease and the [claimant's] employment.'" Rutledge
308 N.C. at 93, 301 S.E.2d at 365 (quoting Hansel v. Sherman
, 304 N.C. 44, 52, 283 S.E.2d 101, 105-06 (1981)).
Likewise, the worker must prove causation if he or she is to
recover based on the occurrence of an injury by accident: "An
injury is compensable as employment-related if any reasonable
relationship to employment exists. Although the employment-related
accident need not be the sole causative force to render an injury
compensable, the plaintiff must prove that the accident was a
causal factor by a preponderance of the evidence." Holley v. ACTS,
, 357 N.C. 228, 231-32, 581 S.E.2d 750, 752 (2003) (internal
quotation marks and citations omitted). As explained by ourSupreme Court, "[t]o establish the necessary causal relationship
for compensation under the Act, 'the evidence must be such as to
take the case out of the realm of conjecture and remote
possibility.'" Chambers v. Transit Mgmt.
, 360 N.C. 609, 616, 636
S.E.2d 553, 557 (2006) (quoting Gilmore v. Hoke County Bd. of
, 222 N.C. 358, 365, 23 S.E.2d 292, 296 (1942)).
In this case, plaintiff's counsel asked Dr. Jemsek whether,
"more likely than not, there is a causal connection between the
disease and [plaintiff's] employment," and the doctor replied,
"[t]hat's a fair statement." Dr. Jemsek nonetheless qualified this
opinion on cross-examination:
Q. Okay. Dr. Jemsek, is there any
definitive way to know whether [plaintiff]
contracted Lyme disease due to her job, or
just to exposure of daily living, walking to
get the mail?
Q. Okay. Just because a person is
bitten by a tick, and that tick is attached
for a minor amount of time, does that,
necessarily, immediately lead them to contract
A. No. It depends on whether the tick
Q. Okay. The only way to know if that
tick is infected _ or specifically, in this
case, if the tick that infected [plaintiff]
was from her job _ is if we had that actual
tick; is that correct?
A. Correct. Or if she can identify a
tick she's quite certain was acquired at work,
followed by an EM rash.
Q. Otherwise, if we don't have that
tick, or those records that you've justdescribed, it's just speculation as to what we
think may have happened?
Q. Okay. Dr. Jemsek, on [d]irect you
testified that it was more likely than not,
that [plaintiff] contracted Lyme disease from
her job _
A. No. I didn't say that. I said that
I think she was at an increased risk for
exposure to ticks at a veterinary clinic
. . .
. . . .
Q. And, by that same token, there's no
way to know whether she had a primary
infection, when she was a child, which was
reaggravated by something that occurred from a
tick dropping from a tree while she was
getting the mail; is that right?
A. That's right. Not necessarily a tick
bite. Something traumatic could have
happened, or for whatever reason, she lost
immune containment, without a known tick bite.
(Emphasis added.) The record thus shows that, on the issue of
causation, Dr. Jemsek's testimony was at best equivocal.
From the evidence presented, the Commission made the following
17. Although plaintiff has testified
that she removed two small ticks from her
person on February 15, 2001, it would be mere
speculation to attribute plaintiff's Lyme
Disease to this incident. There has been no
evidence that the ticks removed were of the
appropriate variety of tick to cause Lyme
Disease. Nor has evidence been presented that
the ticks removed on February 15, 2001 were
attached a sufficient amount of time to
transmit Lyme Disease.
18. The undersigned find as fact that
plaintiff has failed to prove that there is acausal connection between plaintiff's Lyme
disease and her employment.
Plaintiff disputes these findings, contending that Dr. Jemsek's
testimony was "sufficient" to carry her burden on the causation
issue. While perhaps "sufficient," the portions of Dr. Jemsek's
testimony relied on by plaintiff are not dispositive in light of
the doctor's other testimony that supports a finding of no
As stated on many occasions, the appellate "'court's duty goes
no further than to determine whether the record contains any
evidence tending to support the finding.'" Adams v. AVX Corp.
N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (quoting Anderson v.
Lincoln Constr. Co.
, 265 N.C. 431, 434, 144 S.E.2d 272, 274
(1965)). By combing the transcript, we could find excerpts
supportive of plaintiff's position, but "this Court's role is not
to engage in such a weighing of the evidence." Alexander v.
Wal-Mart Stores, Inc.
, 166 N.C. App. 563, 573, 603 S.E.2d 552, 558
(2004) (Hudson, J., dissenting), adopted per curiam
, 359 N.C. 403,
610 S.E.2d 374 (2005). Since there is competent evidence in the
record supporting the finding of no causal link, that finding must
stand. See Carroll v. Town of Ayden
, 160 N.C. App. 637, 642-43,
586 S.E.2d 822, 826-27 (2003) (upholding Commission's finding that
plaintiff's hepatitis C infection was not caused by his employment
where two doctors presented contrasting testimony and noting,
further, that appellate court "cannot overrule the Commission's
findings of fact merely because plaintiff presented evidence whichwould support a contrary finding"), aff'd per curiam
, 359 N.C. 66,
602 S.E.2d 674 (2004).
Plaintiff further argues that we should reject the
Commission's finding of no causation by considering the
circumstantial evidence before the Commission, as permitted by our
case law. See Booker v. Duke Med. Ctr.
, 297 N.C. 458, 476, 256
S.E.2d 189, 200 (1979) ("In the case of occupational diseases proof
of a causal connection between the disease and the employee's
occupation must of necessity be based on circumstantial
evidence."); Keel v. H & V, Inc.
, 107 N.C. App. 536, 540, 421
S.E.2d 362, 366 (1992) ("Circumstantial evidence of the causal
connection between the occupation and the disease is sufficient. .
. . Absolute medical certainty is not required."). According to
plaintiff, the circumstantial evidence in this case _ namely, that
she was frequently exposed to ticks at work; that she was not
significantly exposed to ticks outside of work; and that she had no
history of Lyme disease prior to working for defendant-employer _
is comparable to the evidence in Booker
There is, however, a dispositive difference between this case
. In Booker
, the Court was reviewing
an opinion and award in which the Commission found causation and
awarded benefits. Here, the Commission found that there was no
causal relationship between the employment and plaintiff's
condition. Because the record contains evidence to support that
finding, and because we may not review the weight or credibility of
this evidence, we must affirm.
Judges CALABRIA and JACKSON concur.
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