Johnson v. City of Winstono-Salem

• Court: North Carolina Court of Appeals
• Writing for the Court: Stephens
• Citation: Johnson v. City of Winstono-Salem, 656 S.E.2d 608, 188 N.C. App. 383 (N.C. App. 2008)
• Decision Date: 05 February 2008
• Docket Number: No. COA07-536.,COA07-536.
• Parties: Stevie JOHNSON, Employee-Plaintiff, v. CITY OF WINSTON-SALEM, Employer, Self-Insured, Defendant.

656 S.E.2d 608

Stevie JOHNSON, Employee-Plaintiff, v. CITY OF WINSTON-SALEM, Employer, Self-Insured, Defendant.

No. COA07-536.

Court of Appeals of North Carolina.

February 5, 2008.

Appeal by Defendant from Opinion and Award entered 5 February 2007 by the North Carolina Industrial Commission.

Heard in the Court of Appeals 14 November 2007.

Roderick T. McIver, Winston-Salem, for Plaintiff.

Wilson & Coffey, LLP, by Kevin B. Cartledge and Jason L. Jelinek, Winston-Salem; for Defendant.

STEPHENS, Judge.

Stevie Johnson ("Plaintiff'), a custodial maintenance worker for the. City of Winston-Salem ("Defendant"), developed bilateral carpal tunnel syndrome, gout, and arthritis, and claimed disability benefits resulting therefrom. Defendant denied Plaintiffs claim by filing a Form 61 with the Industrial Commission.

In an Opinion and Award filed 17 May 2006, Deputy Commissioner Bradley W. Houser held that Plaintiffs employment caused or significantly contributed to the development of his bilateral carpal tunnel syndrome. He further determined that there was insufficient evidence to conclude that Plaintiffs employment caused or significantly contributed to his development of gout, or arthritis. Plaintiff was awarded temporary total disability benefits pursuant to N.C. Gen. Stat. § 97-29 and medical expenses related to his bilateral carpal tunnel syndrome. Both parties appealed to the Full Commission.

In an Opinion and Award filed 5 February 2007, a majority of the Full Commission affirmed Deputy Commissioner Houser's Opinion and Award with modifications, finding that Plaintiff was not at maximum medical improvement and ordering further medical treatment for Plaintiff.

From the Opinion and Award of the Full Commission, Defendant appeals.

I. FACTS

Plaintiff, a 38-year-old high school graduate, worked for Defendant as a recreational center custodian for approximately 15 years. His duties included sweeping, mopping, dusting, polishing, washing windows, washing baseboards, disposing of trash, and removing gum from floors and bleachers. In performing these duties, Plaintiff was required to use a mechanized buffer on the floors and a machine to shampoo the carpet. Additionally, Plaintiff worked some overtime for Defendant on weekends, stripping and waxing gym floors in several recreational centers throughout Winston-Salem. His primary duty during his overtime work was to operate' the stripping and buffing machinery, which necessitated the nearly constant gripping and twisting of his hands and wrists. Plaintiff performed all of these duties throughout his 15-year period of employment.

Prior to filing his workers' compensation claim, Plaintiff had been diagnosed with the following: gout, arthritis, hypercholesterolemia, congestive heart failure, underlying idiopathic cardiomyopathy, shortness of breath, chest pain, bilateral knee pain, obesity, atrial fibrillation, tingling and numbness in his hands, hypertension, diabetes, and degenerative joint disease in his knees.

Dr. Anthony DeFranzo, who treated Plaintiff for his carpal tunnel syndrome and was aware of Plaintiffs prior medical conditions, testified to the following: Plaintiffs gout and arthritis were aggravated by his employment but were not caused by his work activities; the combination of Plaintiffs gout, arthritis, and carpal tunnel syndrome resulted in a significant disability in both hands; Plaintiffs employment exposed him to an increased risk of developing carpal tunnel syndrome as opposed to members of the general public not so exposed; and Plaintiff had not yet reached maximum medical improvement.

Dr. James T. Burnette, Ph.D., CPE, an ergonomist, reviewed Plaintiffs work activities and determined that they were repetitive in nature and exposed him to an increased risk of developing bilateral carpal tunnel syndrome as opposed to members of the general public not so exposed.

II. DISCUSSION

Appellate review of an Opinion and Award of the Full Commission is limited to a determination of whether the Full Commission's findings of fact are supported by any competent evidence, and whether those findings support the Full Commission's legal conclusions. Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998), reh'g denied, 350 N.C. 108, 532 S.E.2d 522 (1999). The Full Commission's conclusions of law are reviewable de novo. Whitfield v. Lab. Corp. of Am., 158 N.C.App. 341, 581 S.E.2d 778 (2003).

A. Compensable Injury

Defendant first contends that the evidence was insufficient to support the Full Commission's determination that Plaintiff's carpal tunnel syndrome is a compensable injury. Specifically, Defendant argues there was insufficient evidence for the Full Commission to find that Plaintiff's employment with Defendant increased his risk of contracting carpal tunnel syndrome. We disagree.

For an injury to be compensable under our Workers' Compensation Act, it must be either the result of an "accident arising out of and in the course of employment or an `occupational disease.'" Hansel v. Sherman Textiles, 304 N.C. 44, 51, 283 S.E.2d 101, 105 (1981). Although certain "occupational diseases" are specifically listed as compensable conditions under N.C. Gen. Stat. § 97-53, carpal tunnel syndrome is not among them. Thus, this disorder is compensable only if (1) it is "proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment[,]" and (2) it is not an "ordinary disease of life to which the general public is equally exposed outside of the employment." Booker v. Duke Med. Ctr., 297 N.C. 458, 468, 256 S.E.2d 189, 196 (1979); N.C. Gen.Stat. § 97-53(13) (2005).

"A disease is `characteristic' of a profession when there is a recognizable link between the nature of the job and an increased risk of contracting the disease in question." Booker, 297 N.C. at 472, 256 S.E.2d at 198. A disease is "peculiar to the occupation" when the conditions of the employment result in a hazard which' distinguishes it in character from employment generally; the disease need not be one that originated exclusively from the employment. Id. at 473, 256 S.E.2d at 199. Furthermore, the statute does not preclude coverage for all ordinary diseases of life, but only for those "`to which the general public is equally exposed outside of the employment.'" Id. at 475, 256 S.E.2d at 200 (quoting N.C. Gen. Stat. § 97-53(13)).

Here, Dr. DeFranzo testified that Plaintiff's job contributed significantly to the development of Plaintiff's carpal tunnel syndrome. He explained:

[F]rom what I understand, [Plaintiff] did multiple duties as a custodian using his hands to do various tasks all day; but he also used vibrating equipment like floor buffers and things. And when it comes to carpal tunnel syndrome, tools that vibrate are notorious for aggravating and causing carpal tunnel syndrome.

....

[L]ess than one (1) percent—point six (.6) percent of the population develops carpal tunnel syndrome in the general population that do not do repetitive tasks at work. And there is about a six (6) percent incidence of carpal tunnel syndrome in job activities that require repetitive work. So there's about a ten (10) times increase ... of carpal tunnel syndrome in patients that do lots of work with their hands.

Moreover, when directly asked whether Plaintiff's job duties would "increase his risk of [developing] carpal tunnel syndrome[,]" Dr. DeFranzo replied, "Yes.... [P]atients that do repetitive work [with their hands] have an increased incidence of carpal tunnel syndrome." This testimony is sufficient evidence to support the Full Commission's finding that "Plaintiff's employment with Defendant ... exposed him to an increased risk of developing bilateral carpal tunnel syndrome as opposed to members of the general public not so exposed."

Defendant cites Keller v. City of Wilmington Police Dep't, 65 N.C.App. 675, 309 S.E.2d 543 (1983),¹ disc. review allowed, 310 N.C 625, 315 S.E.2d 690 (1984),² for the proposition that Plaintiff must prove that carpal tunnel syndrome is "peculiar to janitors or custodians." However, in Lumley v. Dancy Constr. Co., 79 N.C.App. 114, 339 S.E.2d 9 (1986), this Court disavowed the holding in Keller, stating: "It is well settled that this Court may not overrule nor modify decisions of the Supreme Court of North Carolina. Thus, any language in Keller which might be interpreted as defining the language `peculiar to' differently than was set forth in Booker is, ineffective and should have no precedential value." Lumley, 79 N.C.App. at 121-22, 339 S.E.2d at 14 (citation omitted).

Accordingly, based on Dr. DeFranzo's testimony and the test enunciated in Booker, we conclude the evidence was sufficient to support the Full Commission's finding that Plaintiffs carpal tunnel syndrome is a compensable occupational disease.

B. Disability

Defendant next, contends that Plaintiff failed to establish disability within the meaning of the Act. We disagree.

An employee who suffers a compensable injury is disabled under the Act if the injury results in an "incapacity ... to earn the wages which the employee was receiving at the time of injury in the same or any other employment." N.C. Gen.Stat. § 97-2(9) (2005). Consequently, determination of whether a worker is disabled focuses on the injured employee's diminished capacity to earn wages, rather than upon his physical impairment. Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798 (1986). The employee has the burden of proving the existence and extent of his disability, Hall v. Thomason Chevrolet, Inc., 263 N.C. 569, 139 S.E.2d 857 (1965), and he may meet this burden in one of four ways:

(1) the production of medical evidence that he is physically or mentally, as a consequence of the work related injury, incapable of work in any employment; (2) the production of evidence that he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in...