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Briggs v. Debbie's Staffing, Inc.

Court of Appeals of North Carolina

March 6, 2018

WILLARD BRIGGS, Employee, Plaintiff
DEBBIE'S STAFFING, INC., Employer, N.C. INS. GUAR. ASS'N, Carrier; EMPLOYMENT PLUS, Employer, N.C. INS. GUAR. ASS'N; and PERMATECH, INC., Employer, CINCINNATI INS. CO., Carrier, Defendants.

          Heard in the Court of Appeals 29 November 2017.

         Appeal 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 plaintiff-appellant.

          Teague Campbell Dennis & Gorham, LLP, by John A. Tomei and Matthew D. Flammia, for defendants-appellees Employment Plus and NCIGA.

          Muller Law Firm, PLLC, by Tara Davidson Muller, and Anders Newton, PLLC, by Gregg Newton, for defendants-appellees Permatech and Cincinnati Insurance.

          Cranfill Sumner & Hartzog LLP, by Buxton S. Copeland and Tracy C. Myatt, for defendants-appellees Debbie's Staffing and NCIGA.

          DAVIS, JUDGE.

         In this 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 affirm.

         Factual and Procedural Background

         The 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 2012.

         Permatech 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

         Due to 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."

         Briggs 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 employment

         On 8 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 experts.

         Dr. 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.

         Dr. 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.

         On 18 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 Commission.

         On 31 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.


         Appellate 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).

         "For 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).

         Our 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 employment.

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 ...

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