Spruill v. North Carolina Dep't Of Agriculture

• Court: North Carolina Court of Appeals
• Writing for the Court: STEPHENS, J.
• Decision Date: 19 October 2010
• Docket Number: No. 559533,NO. COA09-1581,COA09-1581,559533
• Citation: Spruill v. North Carolina Dep't of Agric., No. 559533, NO. COA09-1581 (N.C. App. Oct 19, 2010)
• Parties: DANNY SPRUILL, Employee, Plaintiff, v. NORTH CAROLINA DEPARTMENT OF AGRICULTURE, Employer, Self-Insured (KEY RISK MANAGEMENT SERVICES, INC., Third Party Administrator), Defendant.

DANNY SPRUILL, Employee, Plaintiff,

v. NORTH CAROLINA DEPARTMENT OF AGRICULTURE, Employer, Self-Insured (KEY RISK MANAGEMENT SERVICES, INC., Third Party Administrator), Defendant.

NO. COA09-1581

No. 559533

Court of Appeals of North Carolina

Filed: 19 October 2010

Appeal by Defendant from Opinion and Award of the North Carolina Industrial Commission entered 9 September 2009. Heard in the Court of Appeals 12 May 2010.

Lennon and Camak, PLLC, by Michael W. Bertics, for PlaintiffAppellee.

Attorney General Roy Cooper, by Assistant Attorney General Karissa J. Davan, for Defendant-Appellant.

STEPHENS, J.

I. Procedural History

Plaintiff Danny Spruill became employed by Defendant North Carolina Department of Agriculture on 31 August 1998. Defendant filed an Industrial Commission Form 19, Employer's Report of Employee's Injury or Occupational Disease, on 1 September 2005 stating, "Employee has not reported an injury. Employee had [a] medical app[ointment] on Tuesday, 7/12/05. He was admitted into Washington Co. Hospital[.] He was diagnosed with [Lyme] disease, Meningitis, & possibly Tick Fever." The date of injury was not noted on the form. Defendant filed an Industrial Commission Form 61, Denial of Workers' Compensation Claim, on 26 September 2005, denying any claim by Plaintiff for benefits. Plaintiff filed a Form 18, Notice of Accident to Employer and Claim of Employee, on 3 October 2005, claiming he was suffering from Lyme disease, meningitis, and tick-borne disease. Plaintiff filed a Form 33, Request that Claim be Assigned for Hearing, on 30 May 2007, claiming entitlement to disability benefits and medical expenses.

The matter was heard before Deputy Commissioner Philip A. Baddour, III in Raleigh, North Carolina on 18 February 2008. In an Opinion and Award filed 30 December 2008, the Deputy Commissioner concluded that Plaintiff had failed to establish that he suffered from an occupational disease and, thus, was not entitled to compensation under the North Carolina Workers' Compensation Act.

The Full Commission heard Plaintiff's appeal on 9 June 2009. In an Opinion and Award filed 9 September 2009, the Full Commission reversed the Deputy Commissioner and concluded that Plaintiff had established that he suffered from an occupational disease. Thus, Defendant was ordered to "pay to [P]laintiff total disability compensation in the amount of $341.09 per week beginning July 12, 2005, through October 22, 2005 and from June 29, 2006 and continuing until further Order of the Commission." Defendant was also ordered to "pay for all medical expenses incurred or to be incurred for treatment provided to [P]laintiff by Dr. Jeon, Dr. Carlson, Dr. Mayo, and [P]laintiff's other physicians, for his compensable [L]yme disease, [L]yme meningitis, depression, PTSD, and other related conditions."

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

II. Evidence

Plaintiff has a GED and was 61 years old at the time of the hearing before the Deputy Commissioner. Plaintiff was employed by Defendant as an Agricultural Research Assistant at the Tidewater Research Station ("Tidewater"). Plaintiff worked outdoors and his job required him to work in the vicinity of ditches and maintain the fence lines. Parts of the facility are fenced in to keep deer out of the research crops.

Plaintiff testified that he had been bitten by ticks at Tidewater in the past and that he had been bitten by other insects as well. Plaintiff testified that during warm weather and when new ground was being fenced, tick bites were a "daily thing[.]" Plaintiff also testified that if you did not go into the area of new ground, "you didn't find ticks." Plaintiff stated that the worst area for ticks was the edge of the woods where they put the fence.

Beginning in 2003, Plaintiff was mainly responsible for taking care of cattle. Plaintiff testified that he would feed cattle in the mornings in July of 2005. In the afternoons he worked out in the cow pastures digging up an irrigation system and repairing it. He had problems with fire ant bites.

One Monday evening in July 2005, Plaintiff discovered he was purple from the waist down. He went to see Dr. Myung Kil Jeon, his family physician, on Tuesday, 12 July 2005. Based on Plaintiff's symptoms, which included a rash, swollen and aching joints, a fever, and chills, as well as Plaintiff's work history, Dr. Jeon diagnosed Plaintiff with Lyme disease. Dr. Jeon ordered two tests to detect Lyme disease, but both were negative for the disease. On 14 July 2005, Plaintiff was admitted to Plymouth Hospital. Another blood test performed on 19 July 2005 also came back negative for Lyme disease but confirmed bacterial meningitis. Plaintiff was discharged from the hospital with a final diagnosis of meningitis and Lyme disease. On 3 0 November 2 0 05, another blood test for Lyme disease was negative.

Plaintiff began to suffer from concentration and attention problems, memory loss, mental fog, temper tantrums, irregular heartbeat, worsening of his post traumatic stress disorder ("PTSD"), depression, and fatigue. These conditions severely limit Plaintiff's ability to engage in routine tasks.

In October 2005, Plaintiff attempted to return to work. However, he was removed from work by Dr. Kathy Mayo, his treating psychiatrist, in June 2006 due to his aggravated PTSD, depression, and ongoing memory, concentration, and attention problems. Plaintiff has not worked since that date.

Dr. Weber, a Professor of Medicine, Pediatrics, and Epidemiology, and an expert in the field of epidemiology at the University of North Carolina at Chapel Hill, reviewed Plaintiff'smedical records. Based on the appearance of Plaintiff's rash, which Dr. Weber opined did not resemble the characteristic rash associated with Lyme disease, and the absence of "a set of laboratory examinations that met the CDC/Infectious Disease Society criteria for diagnosing Lyme disease[,]" Dr. Weber testified that he would not have diagnosed Plaintiff with Lyme disease.

III. Discussion

A. Standard of Review

The standard of appellate review of an opinion and award of the Industrial Commission "is limited to a determination of (1) whether the Commission's findings of fact are supported by any competent evidence in the record; and (2) whether the Commission's findings justify its legal conclusions." Aaron v. New Fortis Homes, Inc., 127 N.C. App. 711, 714, 493 S.E.2d 305, 306 (1997) (citation and quotation marks omitted). "The findings of fact by the Industrial Commission are conclusive on appeal, if there is any competent evidence to support them, and even if there is evidence that would support contrary findings." Grantham v. R. G. Barry Corp., 127 N.C. App. 529, 534, 491 S.E.2d 678, 681 (1997), disc, review denied, 347 N.C. 671, 500 S.E.2d 86 (1998) (citation and quotation marks omitted). This Court's duty goes no further than to determine whether the record contains any evidence tending to support the findings of the Commission, and this Court does not have the authority to weigh the evidence and decide the issue on the basis of its weight. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998). This Court reviews the Commission'sconclusions of law de novo. Lewis v. Craven Reg'l Med. Ctr., 122 N.C. App. 143, 149, 468 S.E.2d 269, 274 (1996).

B. Occupational Disease

By Defendant's arguments, Defendant contends that the Full Commission incorrectly found and concluded that Plaintiff contracted an occupational disease. We disagree.

N.C. Gen. Stat. § 97-53, which lists various compensable occupational diseases, does not include Lyme disease among these. However, a disease not specifically listed in the statute may nonetheless be compensable pursuant to N.C. Gen. Stat. § 97-53(13), which defines an occupational disease as

[a]ny 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) (2009). Our Supreme Court has interpreted this language as requiring three elements in order to prove that a disease is an occupational disease: (1) the disease must be characteristic of and peculiar to the claimant's particular trade, occupation, or employment; (2) the disease must not be an ordinary disease of life to which the public is equally exposed outside of the employment; and (3) there must be proof of a causal connection between the disease and the employment. Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 93, 301 S.E.2d 359, 365 (1983); accord Hardin v. Motor Panels, Inc., 136 N.C. App. 351, 354, 524 S.E.2d 368, 371, disc, review denied, 351 N.C. 473, 543 S.E.2d 488 (2000). The first two elements of the Rutledge test are satisfied where the employee can show that "the employment exposed the worker to a greater risk of contracting the disease than the public generally." Rutledge, 308 N.C. at 94, 301 S.E.2d at 365. The third element is satisfied if the employment "'significantly contributed to, or was a significant causal factor in, the disease's development.'" Hardin, 136 N.C. App. at 354, 524 S.E.2d at 371 (quoting Rutledge, 308 N.C. at 94, 301 S.E.2d at 365).

1. Increased Risk

Defendant first contends that the competent evidence does not support the Commission's findings and conclusions that Plaintiff was at an increased risk of contracting Lyme disease as compared to the general public. We disagree.

In order to prove that his employment exposed him to a greater risk of the injury than the general public, Plaintiff must establish (1) that his employment exposed him to some circumstance to a greater extent than the exposure experienced by the general public, and (2) that the circumstance to which Plaintiff had a greater exposure is a cause of the injury from which Plaintiff suffers. Matthews v. City of Raleigh, 160 N.C. App. 597, 608-09, 586 S.E.2d...