Booker v. Duke Medical Center
| Decision Date | 19 January 1977 |
| Docket Number | No. 7614IC461,7614IC461 |
| Citation | 231 S.E.2d 187,32 N.C.App. 185 |
| Parties | Esther B. BOOKER, widow and guardian ad litem for Elizabeth A. Booker, et al., Employee, v. DUKE MEDICAL CENTER, Employer, and Glens Falls Insurance Company, Carrier. |
| Court | North Carolina Court of Appeals |
Dalton H. Loftin, Hillsborough, for appellees.
Newsom, Graham, Strayhorn, Hedrick, Murray & Bryson by Josiah S. Murray, III, and Robert B. Glenn, Jr., Durham, for defendants-appellants.
G.S. 97--2(6), which remains today as it was originally enacted when the North Carolina Workmen's Compensation Law was first adopted in 1929, provides:
'Injury.--'Injury and personal injury' shall mean only injury by accident arising out of and in the course of the employment, And shall not include a disease in any form, except where it results naturally and unavoidably from the accident.' (Emphasis added.)
In this case there was no finding, nor was there sufficient evidence from which the Industrial Commission could have made a finding, that Mr. Booker contracted serum hepatitis as a result of any accident. At the 18 October 1973 hearing, Booker testified:
'I do not know of any particular accident which has happened during my four year period of handling blood which was the cause of my suffering hepatitis. I do not know the day on which I contracted hepatitis nor do I know or have any specific knowledge as to how I did contract hepatitis.
I do not know of any particular accident which has happened during my tenure at Duke as a result of which I suffered this hepatitis.
I was not involved in any particular accident.'
Mrs. Booker testified at the 10 September 1975 hearing that her husband liked to work in the garden and that he had hobbies 'which would cause him from time to time to have the normal amount of scratches or abrasions or whatever about his hands.' This testimony apparently furnished the basis for the Commission's findings of fact that 'Booker's hobby was gardening, and as a gardner, from time to time he would nick or cut his fingers,' and '(i)t was not unusual occasionally for him to work in the laboratory at Duke Medical Center with unhealed nicks or scratches on his hands.' However, there was no finding that Booker actually had any such unhealed nicks or scratches at any time during the period when, according to all of the evidence, he contracted serum hepatitis. Nor was there evidence that blood of hospital patients, whether contaminated or otherwise, ever came in contact with Booker's fingers, scratched or unscratched, as a result of an 'accident' as that word is generally understood. Indeed, Booker testified that his work brought him into contact with blood samples every day as a routine matter, and that he 'would get small amounts of blood on (himself) from time to time as a regular and repeated and usual and frequent occurrence of (his) employment.' An occurrence which is regular, repeated, usual, and frequent, can hardly be considered an 'accident' within any generally accepted definition of that word. Certainly it cannot be so considered for purposes of the North Carolina Workmen's Compensation Act in view of the following express provision in G.S. 97--52:
'The word 'accident,' as used in the Workmen's Compensation Act, shall not be construed to mean a series of events in employment, of a similar or like nature, occurring regularly, continuously or at frequent intervals in the course of such employment, over extended periods of time, whether such events may or may not be attributable to fault of the employer and disease attributable to such causes shall be compensable only if culminating in an occupational disease mentioned in and compensable under this Article.'
Therefore, since there was no finding, or evidence to support a finding, that any accident occurred from which the disease 'naturally and unavoidably' resulted, the Industrial Commission necessarily based its award upon its conclusion that Booker died as result of an 'occupational disease.' Thus, the crucial question presented by this appeal is whether that conclusion made by the Industrial Commission can be sustained under the pertinent provisions of our Workmen's Compensation Act. Decision of that question requires that we first determine what statutory provisions apply to this case.
By express language of our statute, only the diseases and conditions enumerated in G.S. 97--53 shall be deemed to be occupational diseases within the meaning of our Workmen's Compensation Act. Serum hepatitis is not expressly listed by name and can be considered an occupational disease only if it is included in the general definition contained in subsection (13). That subsection, as amended by Ch. 965 of the 1963 Session Laws and as it was in effect during the first six months of 1971 when Mr. Booker contracted serum hepatitis, was as follows:
'(13) Infection or inflammation of the skin, eyes, or other external contact surfaces or oral or nasal cavities or any other internal or external organ or organs of the body due to irritating oils, cutting compounds, chemical dust, liquids, fumes, gases or vapors, and any other materials or substances.
The provisions of this subsection shall not apply to cases of occupational diseases not included in said subsection prior to the effective date of this Act unless the last exposure in an occupation subject to the hazards of such disease occurred on or after the effective date of this Act.'
Effective 1 July 1971, and applying 'only to cases originating on and after' that date, subsection (13) of G.S. 97--53 was amended to read as follows:
'(13) Any 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.'
Thus, at the threshold of our inquiry we are confronted with the necessity of determining which version of subsection (13) is applicable to this case. We hold that the version which was in effect when Mr. Booker contracted the disease, rather than the subsequently enacted version, applies for purposes of deciding this case. The 1971 Act was ratified on 14 June 1971, and the Legislature demonstrated a clear intention that it operate prospectively only by providing that it be effective from and after 1 July 1971 and 'apply only to cases originating on and after' that date. For purposes of the Workmen's Compensation Act a case is normally considered as 'originating' on the date when the accident giving rise to injury occurred or, in case of an occupational disease, when the disease is contracted. We believe this to be the construction intended by the Legislature in adopting the 1971 Act. To hold otherwise would be to provide Ex post facto coverage for diseases contracted under conditions existing before the statute providing coverage was enacted. Accordingly, we shall apply the provisions of the 1963 rather than those of the 1971 Act in deciding this case. Our determination in this regard is supported by the decisions in Arrington v. Engineering Corp., 264 N.C. 38, 140 S.E.2d 759 (1965) and McCrater v. Engineering Corp., 248 N.C. 707, 104 S.E.2d 858 (1958); See also 81 Am.Jur.2nd, Workmen's Compensation, § 89, pp. 772--73; Annot., 82 A.L.R. 1244 (1933).
We now turn to the crucial question presented by this appeal, whether the conclusion of the Industrial Commission that Booker died from an occupational disease can be...
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Booker v. Duke Medical Center
...of an "accident" because no specific incident could be identified which led to his contracting the disease. Booker v. Medical Center, 32 N.C.App. 185, 231 S.E.2d 187 (1977). None of the parties to this appeal assigned that conclusion as error. The question before us therefore is whether or ......
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Wood v. J. P. Stevens & Co.
... ... Ordinarily, such findings will be based on expert medical testimony. Having made appropriate findings of fact, the next question ... 547, § 3 ... Citing its decision in Booker v. Medical Center, 32 N.C.App. 185, 231 S.E.2d 187 (1977), Rev'd, 297 N.C ... ...
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Wood v. J. P. Stevens & Co.
...includes her disease, are applicable to her claim. A similar contention was recently answered by this Court in Booker v. Duke Medical Center, 32 N.C.App. 185, 231 S.E.2d 187, cert. allowed, 292 N.C. 466, 233 S.E.2d 921 (1977). In that case the plaintiffs, widow and children of Robert S. Boo......