By: Stephen Harrelson
CHARLOTTE, NC – In North Carolina, a plaintiff can have a compensable occupational disease claim if they can prove that their employment caused them to develop a disease listed under the North Carolina General Statute §97-53. A few examples of diseases listed under §97-53 include bursitis, synovitis, and tenosynovitis. If an occupational disease is not listed under §97-53, it may still be compensable under the §97-53(13)’s catch-all provision if a plaintiff can prove that it was “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 employment.” If you are a North Carolina claims professional, your first question when presented with a catch-all occupational disease claim is how to determine whether the alleged occupational disease is characteristic of the plaintiff’s employment or an ordinary disease to which the public is equally exposed.
The North Carolina Supreme Court answered that question in Rutledge v. Tultex Corp./Kings Yarn. The Court determined that a plaintiff could prove that their alleged occupational disease was “characteristic of their employment and not a disease to which the public was equally exposed” if they produced evidence that their employment exposed them to a greater risk of developing their alleged occupational disease than the public. Of course, like plaintiffs with a listed occupational disease claim, plaintiffs with a catch-all occupational disease claim must also prove that their employment caused their disease, so the Rutledge Court simplified §97-53(13)’s compensability requirements for a non-listed occupational disease to a two-factor test: (1) causation and (2) increased risk compared to the public.
Your second question is likely how plaintiffs prove-and how you defend against-each factor. In cases like Hubert Chambers v. Transit Management, North Carolina appellate courts required plaintiffs to produce detailed medical evidence as proof of each factor. In Hubert, a plaintiff who was a bus driver with ulnar nerve entrapment neuropathy and foraminal stenosis, both non-listed diseases, presented medical evidence and a letter from his physician that established that he was unfamiliar with any study conveying that those diseases were direct occupational risks of bus drivers, he was unaware of particular factors of bus driving that placed drivers at increased risk of developing those diseases compared to the public, and the plaintiff’s position might have aggravated his diseases. The Court held that, while the plaintiff’s evidence did establish causation, he failed to prove that his position increased his risk of contracting his diseases compared to the public, and his claim was not compensable.
With that information in mind, if a non-listed occupational disease claim comes across your desk, you should have several considerations. First and foremost, consider whether it is likely that the plaintiff can produce detailed medical evidence that their position increased their risk of developing the alleged occupational disease compared to the public. Based on Hubert, such evidence could include testimony from their physician or a vocational counselor regarding studies or specific factors that their position produced that increased their risk of developing their alleged occupational disease, as well as evidence that employees in the same position also developed the alleged occupational disease. The nature of the plaintiff’s position and their alleged occupational disease should indicate whether they can likely obtain such evidence.
A plaintiff may have less difficulty obtaining sufficient evidence to show that their position caused their alleged occupational disease, especially since aggravations of preexisting diseases can establish causation. With that said, establishing causation does not negate a plaintiff’s obligation to prove that their position increased their risk of contracting their alleged occupational disease, and you could muddy the waters in the eyes of the Industrial Commission about whether their position caused their alleged occupational disease. For the latter, you will need to retain medical and vocational experts and examine factors outside of the plaintiff’s work that may have caused their alleged occupational disease, such as recreational activities or preexisting medical conditions. Muddying the water regarding causation is by no means a perfect or complete defense, but if a plaintiff cannot or will likely have difficulty establishing that their employment increased their risk of deveoping their alleged occupational disease, it can further bolster your overall defense.
In short, even if an alleged occupational disease claim is not listed under §97-53, it can still be compensable. However, if you are defending against such a claim, you can take multiple steps to attack it based on the two Rutledge factors that the plaintiff must prove for the Commission to find their claim compensable.