Appeal by defendants from an Opinion and Award entered 2 June
2006 by the Full Commission. Heard in the Court of Appeals 26
April 2007.
Edelstein & Payne, by M. Travis Payne, for plaintiff-appellee.
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Paul Lawrence
and Dalton G. Blair, for defendant-appellants.
BRYANT, Judge.
Securitas, Inc. and American Home Assurance Company (ESIS)
(defendants) appeal from an Opinion and Award of the North Carolina
Industrial Commission entered 2 June 2006, and amended 24 August
2006, awarding Michael L. Clemmons (plaintiff) workers'
compensation benefits under N.C. Gen. Stat. § 97-29. For the
reasons below we affirm the Order and Award of the Full Commission.
Facts and Procedural History
Plaintiff was employed by Securitas, Inc. as a lieutenant
guard at the Brunswick Nuclear Plant. Plaintiff worked twelve-hour
shifts, working three straight days with three days off. However,
during 2002 and 2003, because of a shortage of staff, plaintiff
worked extra shifts, often working six twelve-hour shifts in a row.
Following the terrorist attacks of 11 September 2001, the equipment
security guards at the nuclear power plant had to carry increased
significantly, weighing a total of forty pounds. This equipment
was worn at almost all times plaintiff was at work.
In 2003, plaintiff began experiencing tingling in his hands
which spread to his arms, legs, waist and right side. As a result,
in June of 2003, plaintiff saw his primary care physician for these
problems. Plaintiff was subsequently referred to Dr. Daniel
Tesfaye, a neurologist.
Dr. Tesfaye ran a series of tests that indicated a number of
problems in plaintiff's neck, including degenerative arthritis,
bone spurs, and actual damage to plaintiff's spinal cord in his
neck. Plaintiff was referred to Dr. R. Mark Rodger, a
neurosurgeon.
Dr. Rodger's examination of plaintiff and review of
plaintiff's test results confirmed spinal cord damage as well as
degenerative changes in his neck. Dr. Rodger operated on
plaintiff's neck, performing a two-level cervical fusion from C5
through C7 on 1 December 2003. The surgery did improve some of
plaintiff's symptoms; however, plaintiff continued to experience
problems with his arms, hands, neck, low back and legs such that hewas never able to return to his job. Both Dr. Tesfaye and Dr.
Rodger indicated that plaintiff was not able to resume his duties
as a security guard.
Plaintiff subsequently filed a claim under the North Carolina
Worker's Compensation Act, which was denied by his employer. This
case was heard on 13 April 2005 by Deputy Commissioner Morgan
Chapman. On 23 September 2005, Deputy Commissioner Chapman filed
an Opinion and Award awarding plaintiff workers' compensation
benefits for his cervical degenerative disc disease, but denied
plaintiff's claim for workers' compensation benefits in relation to
his lumbar degenerative disc disease. Plaintiff and defendants
appealed from the decision of Deputy Commissioner Chapman to the
Full Commission.
The Full Commission heard oral arguments in this matter on 14
March 2006. On 2 June 2006, the Full Commission entered an Opinion
and Award denying plaintiff's claim for benefits for his lumbar
degenerative disc disease, but awarding benefits for plaintiff's
cervical degenerative disc disease and accompanying spinal cord
damage. This Opinion and Award was modified by the Full Commission
on 24 August 2006 to clarify defendants' right to take a credit for
any long-term disability benefits previously paid to plaintiff.
Defendants appeal.
_________________________
Defendants present the issue of whether the Full Commission
erred in determining plaintiff's cervical degenerative disc disease
is a compensable occupational disease pursuant to N.C. Gen. Stat §97-53(13). Defendants specifically argue plaintiff's degenerative
disc disease was not caused by conditions characteristic of and
peculiar to his employment and was thus not placed at a greater
risk for developing the disease than the general public. We
disagree.
Review by this Court of a decision by the North Carolina
Industrial Commission is limited to the determination of “whether
any competent evidence supports the Commission's findings of fact
and whether [those] findings . . . support the Commission's
conclusions of law.”
Deese v. Champion Int'l Corp., 352 N.C. 109,
116, 530 S.E.2d 549, 553 (2000). The Commission's findings of fact
are conclusive on appeal even where there is contrary evidence, and
such findings may only be set aside where there is a “complete lack
of competent evidence to support them.”
Johnson v. Herbie's Place,
157 N.C. App. 168, 171, 579 S.E.2d 110, 113 (2003) (citation and
quotations omitted);
see also Adams v. AVX Corp., 349 N.C. 676,
681, 509 S.E.2d 411, 414 (1998). Our review “'goes no further than
to determine whether the record contains any evidence tending to
support the finding.'”
Adams, 349 N.C. at 681, 509 S.E.2d at 414
(quoting
Anderson v. Lincoln Constr. Co., 265 N.C. 431, 434, 144
S.E.2d 272, 274 (1965)). “[E]vidence 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.”
Id. (citation
omitted);
see also Hollman v. City of Raleigh, 273 N.C. 240, 252,
159 S.E.2d 874, 882 (1968) (“[O]ur Workmen's Compensation Actshould be liberally construed to effectuate its purpose to provide
compensation for injured employees . . ., and its benefits should
not be denied by a technical, narrow, and strict construction.”).
However, the Commission's conclusions of law are reviewed
de novo.
McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 701
(2004).
N.C. Gen. Stat. § 97-53(13) defines an occupational disease
as: “Any disease . . . 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.” N.C. Gen. Stat. § 97-53(13) (2005).
To prove an occupational disease under N.C. Gen. Stat. § 97-53 our
Supreme Court has held the disease must be:
“(1) characteristic of persons engaged in the
particular trade or occupation in which the
[plaintiff] 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 [plaintiff's] employment.”
Chambers v. Transit Mgmt., 360 N.C. 609, 612, 636 S.E.2d 553, 555
(2006) (emphasis added) (quoting
Rutledge v. Tultex Corp., 308 N.C.
85, 93, 301 S.E.2d 359, 365 (1983)). The Court further held 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 . . ., the employee must
nevertheless satisfy the remaining two prongs
of the
Rutledge test by establishing that the
employment placed him at a greater risk forcontracting the condition than the general
public.
”
Id. at 613, 636 S.E.2d at 556 (quoting
Futrell v. Resinall Corp.,
151 N.C. App. 456, 460, 566 S.E.2d 181, 184 (2002),
aff'd per
curiam, 357 N.C. 158, 579 S.E.2d 269 (2003)).
We note that the Full Commission determined plaintiff's lumbar
degenerative disc disease is an ordinary disease of life. However,
the Full Commission determined plaintiff's cervical degenerative
disc disease
is not an ordinary disease of life to which the
general public is equally exposed. Specifically, the Full
Commission concluded:
[P]laintiff's pre-existing asymptomatic
degenerative disc disease was aggravated by
the duties of his employment. Plaintiff was
placed at an increased risk of developing
symptomatic degenerative disc disease in his
cervical spine and accompanying spinal cord
damage by virtue of his working conditions
with defendant-employer. Thus, plaintiff's
cervical condition was an occupational disease
that was due to causes and conditions
characteristic of and peculiar to his
employment and which was not an ordinary
disease of life to which the general public
was equally exposed.
This conclusion of law is supported by the Full Commission's
findings of fact that:
3. After the terrorist attacks on September
11, 2001, security guards at nuclear power
plants were required by federal regulations to
be more heavily armed and wear more safety
gear. Consequently, plaintiff was required to
carry a semi-automatic rifle or shotgun, a
handgun, many rounds of ammunition for each
weapon, a facemask, a radio and other
equipment, and he had to wear body armor. The
total weight of the gear was approximately 40
pounds. The rifle or shotgun hung from a sling
around his neck and rounds of bullets from hisshoulders in bandoliers or were in the pockets
of his bulletproof vest. Plaintiff felt
weighted down and restricted in his movement
by all of the gear he wore. . . .
. . .
13. . . . [T]he greater weight of the medical
testimony established that with respect to his
cervical spine, plaintiff was placed at an
increased risk of developing degenerative disc
disease and accompanying spinal cord damage
because he had to carry and wear so much heavy
gear during the last two years of his
employment. Plaintiff's shoulders had to bear
much of the weight he was carrying. The
unusual load on plaintiff's shoulders caused
contraction of the cervical muscles and placed
a load on the discs in his neck so that the
discs wore at an increased rate.
These findings of fact are in turn supported by the testimony of
plaintiff and Dr. Rodger. Plaintiff testified to the increased
amount and weight of the gear he had to carry as a result of the
changes to federal regulations governing security at nuclear power
plants after the terrorist attacks on 11 September 2001. Dr.
Rodger stated that it was more likely than not that plaintiff's
working conditions increased the risk “for [the] disease that he
presents with and the mechanism of that risk[.]”
Dr. Rodger further explained that:
The load that [plaintiff] wears on his head,
the load that he places around his shoulders,
the secondary contraction of his cervical
muscles that result in the load to his discs
clearly increase the wear or work that's been
done on his neck. . . . If he already had a
degenerative disc disease, he was a neck at
risk and did not require a lot of extra stress
in order to make him symptomatic. I think
that the amount of extra time he placed -_72
hours a week . . . -- with the extra weight
going from 15 to 40 pounds of motion and plus
the use of body armor, which my personalexperience has been that that increases the
necessity for range of motion of your neck. I
think that the range of motion of the neck,
the force is applied, similarly muscle forces
are applied, reasonably we expect it to
increase the wear and therefore result in the
symptoms that he has, those of nerve root
compression and spinal cord damage.
While both Dr. Rodger and Dr. Tesfaye stated that degenerative
disc disease is an ordinary disease of life, they both also stated
that not everyone develops the symptoms experienced by plaintiff.
Rather, the nature of plaintiff's job and the increased weight he
was required to carry after 11 September 2001 increased plaintiff's
risk of developing active symptoms and greatly contributed to his
condition. Thus, the Full Commission did not err in concluding
plaintiff's cervical degenerative disc disease is a compensable
occupational disease pursuant to N.C. Gen. Stat § 97-53(13).
Defendants' assignments of error are overruled.
Affirmed.
Judges McCULLOUGH and STROUD concur.
Report per Rule 30(e).
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