in the Court of Appeals 29 November 2017.
by plaintiff from opinion and award entered 31 March 2017 by
the North Carolina Industrial Commission I.C. No. 13-005153.
Wallace and Graham, P.A., by Edward L. Pauley, for
Campbell Dennis & Gorham, LLP, by John A. Tomei and
Matthew D. Flammia, for defendants-appellees Employment Plus
Law Firm, PLLC, by Tara Davidson Muller, and Anders Newton,
PLLC, by Gregg Newton, for defendants-appellees Permatech and
Cranfill Sumner & Hartzog LLP, by Buxton S. Copeland and
Tracy C. Myatt, for defendants-appellees Debbie's
Staffing and NCIGA.
workers' compensation appeal, we revisit the issue of
whether an employee is required to present expert medical
evidence in order to establish that the conditions of his
employment placed him at a greater risk than members of the
general public for contracting a disease. Willard Briggs
appeals from the opinion and award of the North Carolina
Industrial Commission denying his claim for workers'
compensation benefits in which he alleged that his asthma
resulted from his working conditions. Because we conclude the
Industrial Commission properly found that Briggs failed to
offer expert medical evidence showing that his job actually
placed him at a greater risk of contracting asthma, we
and Procedural Background
facts of this case involve events that occurred during
Briggs' employment with Permatech, Inc.
("Permatech") and two staffing agencies -
Debbie's Staffing, Inc. ("Debbie's
Staffing") and Employment Plus. Briggs worked for
Permatech from 14 June 2010 to 25 April 2012. Permatech and
Debbie's Staffing served as his joint employers from 14
June 2010 to 22 April 2012. Permatech and Employment Plus
served as his joint employers from 23 April 2012 to 25 April
is a refractory manufacturer that makes "precast troughs
and molds that are used in the molten metal industry."
Briggs worked as a ceramic technician at the Permatech
facility in Graham, North Carolina. A portion of his time was
spent working on a "Voeller" machine - a large,
circular mixing machine containing a blade that mixes dry
ingredients with water. Briggs also worked on "smaller
molds in other areas of the plant or helping to cast small
parts." The dry ingredients that were mixed in the
Permatech machines included "alumina silicate, cement
(calcium aluminate), cristobalite, quartz, fused silica,
fumed silica, and silicon carbide
the dusty environment created by the Voeller machine,
Permatech employees were required to wear respiratory
protection masks while working around the machine. Briggs was
provided with a P95 mask, "which filters out 95 percent
of the airborne particulate that is respirable." In
addition, near the end of his employment at Permatech, he was
given a P100 cartridge respirator, which "had a 99.9%
filtration rate for airborne particulate."
was terminated from his employment at Permatech for
attendance-related issues. He subsequently filed a Form 18
(Notice of Accident) on 5 November 2013, alleging that he had
"developed COPD and asthma as a result of working as a
Voeller technician . . . ." Employment Plus and
Debbie's Staffing each filed a Form 61 in which they
asserted that Briggs "did not suffer a compensable
occupational disease arising out of and in the course of his
October 2015, a hearing was held before Deputy Commissioner
J. Brad Donovan. Briggs testified in support of his claim at
the hearing. Depositions were later taken of Dr. Dennis
Darcey and Dr. Douglas McQuaid as well as of two vocational
McQuaid, a pulmonary and critical care physician employed by
LeBauer HealthCare, testified that Briggs had come to his
office complaining of shortness of breath and wheezing. He
opined that Briggs' condition had been caused by the
substances he was exposed to at the Permatech facility. He
conceded, however, that he was unaware of the fact that
Briggs had (1) smoked cigarettes during breaks at work; (2)
been given a respirator mask for use during work hours; (3) a
history of marijuana usage; and (4) previously been treated
for allergies with albuterol.
Darcey, the Division Chief of Occupational and Environmental
Medicine and the Medical Director of the Occupational
Medicine Clinic at Duke University, testified that
Briggs' asthma likely predated his employment with
Defendants because his medical records established that he
"already had a reactive airway before he began working
at the Permatech facility." He did state, however, his
belief that Briggs' asthma had been aggravated during his
employment at Permatech.
May 2016, the deputy commissioner issued an opinion and award
concluding that "[b]ased upon the preponderance of
evidence in view of the entire record . . . [Briggs] has met
his burden and is temporarily totally disabled from
employment as a result of his occupational disease and is
entitled to temporary total disability compensation at the
rate of $213.27 per week for the period beginning on 25 April
2012 and continuing." Defendants appealed to the Full
March 2017, the Full Commission issued an Opinion and Award
reversing the deputy commissioner's decision and denying
Briggs' claim for benefits. Commissioner Bernadine S.
Ballance dissented. On 4 April 2017, Briggs filed a timely
notice of appeal.
review of an opinion and award of the Industrial Commission
is typically "limited to consideration of whether
competent evidence supports the Commission's findings of
fact and whether the findings support the Commission's
conclusions of law." Philbeck v. Univ. of
Mich., 235 N.C.App. 124, 127, 761 S.E.2d 668, 671 (2014)
(citation and quotation marks omitted). "The findings of
fact made by the Commission are conclusive on appeal if
supported by competent evidence even if there is also
evidence that would support a contrary finding. The
Commission's conclusions of law, however, are reviewed
de novo." Morgan v. Morgan Motor Co. of
Albemarle, 231 N.C.App. 377, 380, 752 S.E.2d 677, 680
(2013) (internal citation omitted), affd per curiam,
368 N.C. 69, 772 S.E.2d 238 (2015).
an injury or death to be compensable under our Workmen's
Compensation Act it must be either the result of an
'accident arising out of and in the course of the
employment' or an 'occupational disease.'"
Booker v. Duke Med. Ctr., 297 N.C. 458, 465, 256
S.E.2d 189, 194 (1979) (citation omitted). N.C. Gen. Stat.
§ 97-53(13) provides that a disease is considered
occupational if it 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) (2017).
Supreme Court has held that in order
[f]or a disease to be occupational under G.S. 97-53(13) it
must be (1) characteristic of persons engaged in the
particular trade or occupation in which the claimant 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 claimant's
Rutledge v. Tultex Corp./Kings Yarn,
308 N.C. 85,
93, 301 S.E.2d 359, 365 (1983) (citation, quotation marks,
and brackets omitted). The Supreme Court has made clear that
"[a]ll ordinary diseases of life are not excluded from
the statute's coverage. Only such ordinary diseases of
life to which the general public is exposed equally with
workers in the ...