{ "id": 8520298, "name": "HERMAN W. GIBBS, Employee v. LEGGETT AND PLATT, INC., Employer, and TRANSPORTATION INSURANCE COMPANY, Carrier", "name_abbreviation": "Gibbs v. Leggett & Platt, Inc.", "decision_date": "1993-09-21", "docket_number": "No. 9210IC850", "first_page": "103", "last_page": "109", "citations": [ { "type": "official", "cite": "112 N.C. App. 103" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "339 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "79 N.C. App. 114", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519535 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/79/0114-01" ] }, { "cite": "421 S.E.2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "107 N.C. App. 536", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527769 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/107/0536-01" ] }, { "cite": "343 S.E.2d 215", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "219", "parenthetical": "Occupational disease is compensable if employment exposed claimant \"to a greater risk of contracting [the] disease than members of the public generally. . .\"" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 650", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525370 ], "year": 1986, "pin_cites": [ { "page": "655", "parenthetical": "Occupational disease is compensable if employment exposed claimant \"to a greater risk of contracting [the] disease than members of the public generally. . .\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0650-01" ] }, { "cite": "341 S.E.2d 573", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "Occupational disease found where repeated lifting, straining and pulling placed plaintiff at a greater risk of contracting inflammatory disease than the public at large." } ], "opinion_index": 0 }, { "cite": "316 N.C. 202", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4695541, 4694998, 4703717, 4699646 ], "year": 1986, "pin_cites": [ { "parenthetical": "Occupational disease found where repeated lifting, straining and pulling placed plaintiff at a greater risk of contracting inflammatory disease than the public at large." } ], "opinion_index": 0, "case_paths": [ "/nc/316/0202-02", "/nc/316/0202-03", "/nc/316/0202-04", "/nc/316/0202-01" ] }, { "cite": "336 S.E.2d 632", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "78 N.C. App. 159", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519976 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/78/0159-01" ] }, { "cite": "301 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "365", "parenthetical": "citing and quoting Hansel v. Sherman Textiles, 304 N.C. at 52, 283 S.E.2d at 105-06 (1981); and Booker, 297 N.C. at 468, 475, 256 S.E.2d at 196, 200" }, { "page": "365" }, { "page": "365" } ], "opinion_index": 0 }, { "cite": "308 N.C. 85", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707972 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "93", "parenthetical": "citing and quoting Hansel v. Sherman Textiles, 304 N.C. at 52, 283 S.E.2d at 105-06 (1981); and Booker, 297 N.C. at 468, 475, 256 S.E.2d at 196, 200" }, { "page": "93" }, { "page": "93-94" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0085-01" ] }, { "cite": "256 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1979, "pin_cites": [ { "page": "194" }, { "page": "196, 200" }, { "page": "200" } ], "opinion_index": 0 }, { "cite": "297 N.C. 458", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571831 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "564" }, { "page": "468, 475" }, { "page": "475" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0458-01" ] }, { "cite": "283 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1981, "pin_cites": [ { "page": "105-06" }, { "page": "106" } ], "opinion_index": 0 }, { "cite": "304 N.C. 44", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565283 ], "weight": 3, "year": 1981, "pin_cites": [ { "page": "52" }, { "page": "54" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0044-01" ] }, { "cite": "282 S.E.2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565243 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0001-01" ] } ], "analysis": { "cardinality": 642, "char_count": 14470, "ocr_confidence": 0.741, "pagerank": { "raw": 1.4547226054786267e-07, "percentile": 0.6557318592705598 }, "sha256": "26e3e8b30b2d3566f2a543542d4446b56a1f2f64e7c17a4ee09b5c722fa90825", "simhash": "1:7c07ed5a301aea06", "word_count": 2285 }, "last_updated": "2023-07-14T15:48:17.524906+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and JOHN concur." ], "parties": [ "HERMAN W. GIBBS, Employee v. LEGGETT AND PLATT, INC., Employer, and TRANSPORTATION INSURANCE COMPANY, Carrier" ], "opinions": [ { "text": "WYNN, Judge.\nPlaintiff, Herman W. Gibbs, worked as a janitor for defendant, Leggett & Platt, Inc. Over the course of ten months, he developed swelling and discoloration in his right shoulder which was diagnosed as the result of a \u201cspontaneous\u201d tear of the rotator cuff. Plaintiff filed a claim seeking recovery for an occupational disease pursuant to N.C.G.S. \u00a7 97-53(13), arguing that his injury occurred as a result of his operation of a power sweeper. Both parties presented evidence and Deputy Commissioner Lawrence B. Shuping filed an Opinion and Award which contained the following pertinent findings of fact:\n1. Plaintiff\u2019s claim is for a disabling torn rotator cuff in the right shoulder due to repetitive stress to his right arm and shoulder from operating a power sweeper in the course of his janitor\u2019s job for defendant-employer, which (disease or condition) is characteristic of and peculiar to employment in the same trade, occupation or employment wherein, as compared to members of the general public and other employments at large, where there is an increased risk of developing the same condition because it requires manual labor involving use, and ultimately overuse of the arm and shoulder.\n2. Plaintiff is a 61-year old married male with a fourth grade education.\nAlthough plaintiff has reached maximum medical improvement from the involved shoulder condition giving rise hereto, been rated for his resulting permanent-partial disability and released to return to work by his treating physician, Dr. Wheeler [sic]; plaintiff has not attempted to return to work...; however, at this point there is no medical evidence in the record as to the limitations of the permanent shoulder injury involved so that a determination might be made as to the extent of any whole or partial incapacity to work as a result of the involved shoulder injury \u2014 much less the resulting extent of plaintiff\u2019s permanent-partial disability.\n4. . . . The involved Model 186 LPG Tennant Sweeper was a self-propelled, three wheeled motorized power sweeper, which weighed some 500 pounds, was controlled by hand clutch, equipped with a brush on it\u2019s right side and had a natural tendency to drift and/or pull to the right requiring plaintiff, who is admittedly a small man, to use both hands in operating the same machine at least several hours every other day at work.\n5. Due to the repetitive stress to his right arm and shoulder from operating the above-described Tennant power sweeper in the course of his employment as a janitor for defendant-employer, plaintiff not only sustained a spontaneous tear of his right rotator cuff on 4 January 1990 but months earlier had become [sic] developing impingement syndrome in the same shoulder resulting in progressively worsening shoulder pain and a slow, but steady tear of the rotator cuff until it\u2019s ultimate spontaneous rupture on the first mentioned date.\n8. Plaintiff ultimately reached maximum medical improvement and/or the end of the healing period from and following his torn right rotator cuff on or about August 17, 1990 when he was last seen by Dr. Wheeler [sic] and does retain some degree of permanent-partial disability as a result of his torn right rotator cuff.\nBased upon these and other findings, the deputy commissioner concluded as a matter of law that:\n1. Due to the hereinabove-described repetitive stress to his right arm and shoulder from operating the Model 186 LPJ [sic] Tennant sweeper in the course of his regular janitor\u2019s job for defendant-employer, plaintiff has developed a disabling torn right rotator cuff, which (disease or condition) is thus due to causes and conditions which are characteristic of and peculiar to his particular trade, occupation or employment because it requires manual labor involving use, and ultimately overuse, of the arm and shoulder, but excluding all ordinary diseases of life to which the general public is equally exposed outside of that employment. Plaintiff has thus contracted a compensable occupational disease pursuant to the provisions of G.S. \u00a7 97-53(14) [sic].\n2. As a result of the occupational disease giving rise hereto plaintiff was temporarily totally disabled from January 5, 1990 to June 25, 1990 when he was released to return to work by Dr. Wheeler [sic] entitling him to compensation at a rate of $165.33 per week during the same period; however, pending evidence as to the extent of plaintiff\u2019s permanent-partial disability and any resulting physical limitations therefrom a determination cannot be made as to whether plaintiff remains wholly or partially disabled since June 25, 1990.\n3. Plaintiff ultimately reached maximum medical improvement and/or the end of the healing period from and following the occupational disease giving rise hereto on or about August 17, 1988 and does retain some degree of permanent-partial disability; however, a determination as to the extent thereof cannot be determined in the absence of further medical evidence.\nBased upon the findings and conclusions, the deputy commissioner awarded benefits. Defendants appealed to the Commission and the Full Commission affirmed and adopted the opinion and award of the deputy commissioner. Defendants thereafter appealed to this court. We affirm.\nI.\nDefendants-appellants argue that the Full Commission\u2019s conclusion that plaintiffs condition or disease resulted from causes and conditions which are \u201ccharacteristic of and peculiar to\u201d his employment is not supported by proper findings based upon competent evidence and, therefore plaintiff is not entitled to compensation for an occupational disease pursuant to N.C.G.S. \u00a7 97-53(13).\nThe findings of fact of the Industrial Commission are conclusive on appeal when supported by competent evidence even though there is evidence to support contrary findings. Morrison v. Burlington Industries, 304 N.C. 1, 282 S.E.2d 458 (1981). As a result, our review is limited to two specific questions: 1) Whether the findings of fact are supported by any competent evidence, and 2) Whether those findings of fact in turn justify the legal conclusions and decision. Hansel v. Sherman Textiles, 304 N.C. 44, 283 S.E.2d 101 (1981).\nFor a disability to be compensable under the Workers\u2019 Compensation Act, it must be either the result of an accident arising out of and in the course of employment or an \u201coccupational disease.\u201d Id.; Booker v. Duke Medical Center, 297 N.C. 458, 564, 256 S.E.2d 189, 194 (1979). An occupational disease is defined as:\nAny 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.\nN.C.G.S. \u00a7 97-53(13) (1991). The North Carolina Supreme Court has outlined three elements necessary to prove the existence of an \u201coccupational disease\u201d under N.C.G.S. \u00a7 97-53(13). The disease must be:\n(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 \u201ca causal connection between the disease and the [claimant\u2019s] employment.\u201d\nRutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 93, 301 S.E.2d 359, 365 (1983) (citing and quoting Hansel v. Sherman Textiles, 304 N.C. at 52, 283 S.E.2d at 105-06 (1981); and Booker, 297 N.C. at 468, 475, 256 S.E.2d at 196, 200). Plaintiff bears the burden of proving every element of compensability. Hansel, 304 N.C. at 54, 283 S.E.2d at 106.\nDefendants concede that there is competent evidence to support a finding that 1) the disease is \u201c \u2018characteristic of\u2019 the employment such that there is a \u2018recognizable link between the nature of the job and an increased risk of contracting the disease in question\u2019 \u201d and 2) that the disease is not an \u201cordinary disease of life \u2018to which the general public is equally exposed outside of the employment.\u2019 \u201d Defendants contend however, that there was insufficient evidence in this case to support the Commission\u2019s finding of fact that plaintiff\u2019s torn rotator cuff is \u201cpeculiar to\u201d his employment as a janitor.\nTo qualify as \u201cpeculiar to\u201d the employment, defendants argue, citing Booker, that the \u201cconditions of that employment must result in a hazard which distinguishes it in character from the general run of occupations.\u201d In Booker, Chief Justice Sharp writing for our Supreme Court conducted a thorough examination of other jurisdictions with similar occupational disease statutes and set forth the test for determining whether a disease is \u201ccharacteristic of and peculiar to\u201d a trade or profession. We need not repeat that full examination, however, the Court therein noted that a particular illness need not be \u201cunique\u201d to an injured employee\u2019s profession to be compensable. Rather, the Court held that in the final analysis, where the evidence supported a determination that the injured employee\u2019s \u201cjob exposed him to a higher risk of contracting the disease than members of the public or employee in general,\u201d this was sufficient to support the conclusion that the employee\u2019s disease is characteristic of and peculiar to his occupation. The greater risk in such cases provides the nexus between the disease and the employment which makes them an appropriate subject for workman\u2019s compensation. Booker, 297 N.C. at 475, 256 S.E.2d at 200. Thus, only those ordinary diseases of life to which the general public is exposed equally with workers in the particular trade or occupation are excluded. Id.; Rutledge, 308 N.C. at 93, 301 S.E.2d at 365.\nOur Courts have consistently followed the guidelines established in Booker. See Thomason v. Fiber Industries, 78 N.C. App. 159, 336 S.E.2d 632 (1985), disc. rev. denied, 316 N.C. 202, 341 S.E.2d 573 (1986) (Occupational disease found where repeated lifting, straining and pulling placed plaintiff at a greater risk of contracting inflammatory disease than the public at large.); Perry v. Burlington Industries, 80 N.C. App. 650, 655, 343 S.E.2d 215, 219 (1986) (Occupational disease is compensable if employment exposed claimant \u201cto a greater risk of contracting [the] disease than members of the public generally. . .\u201d); Keel v. H & V Inc., 107 N.C. App. 536, 421 S.E.2d 362 (1992); Rutledge, 308 N.C. at 93-94, 301 S.E.2d at 365; Lumley v. Dancy Const. Co., 79 N.C. App. 114, 339 S.E.2d 9 (1986).\nThe following evidence was offered to support the Commission\u2019s finding that the spontaneous tear of the rotator cuff is an occupational disease within the meaning of N.C.G.S. \u00a7 97-57(13). In March of 1989, Leggett and Platt purchased a five hundred pound, three wheel, Tennant Power Sweeper. The sweeper is self-propelled and operated by depressing a hand clutch. Plaintiff testified that he operated the sweeper every other day for approximately seven hours. Plaintiff and other employees noticed that the machine started pulling slightly to the right. Plaintiff gradually started having pains in his right arm and shoulder. By January of 1990, he experienced swelling and discoloration.\nDr. Edward Weller, an orthopaedist, diagnosed plaintiff as having a \u201cspontaneous\u201d tear of the rotator cuff resulting from repeated stress or low impact trauma. The diagnosis was confirmed on 14 February 1990 by arthroscopy and surgery. Dr. Weller testified that plaintiff\u2019s injury was consistent with the type of work plaintiff performed and that plaintiff\u2019s work placed him at a higher risk than the general public for injuries to the shoulder or arms. This evidence is sufficient to meet the test set forth in Booker for determining whether a disease meets the \u201cpeculiar to\u201d requirement set forth in the statute. Furthermore, defendant concedes that there is competent evidence to support a finding that the disease is due to causes and conditions \u201ccharacteristic of plaintiff\u2019s employment\u201d and that the disease is not an ordinary disease of life to which the general public is equally exposed outside the employment.\nFor the foregoing reasons, we find the Commission properly determined that plaintiff suffered from an occupational disease within the meaning of N:C.G.S. \u00a7 97-53(13) and the opinion and award of the Full Commission is\nAffirmed.\nJudges JOHNSON and JOHN concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Snow & Skager, by James M. Snow, for plaintiff-appellee.", "Young, Moore, Henderson & Alvis, P.A., by Richard J. Archie and J. D. Prather, for defendant-appellant." ], "corrections": "", "head_matter": "HERMAN W. GIBBS, Employee v. LEGGETT AND PLATT, INC., Employer, and TRANSPORTATION INSURANCE COMPANY, Carrier\nNo. 9210IC850\n(Filed 21 September 1993)\nMaster and Servant \u00a7 68 (NCI3d)\u2014 workers\u2019 compensation \u2014 torn rotator cuff \u2014 occupational disease \u2014causes characteristic of and peculiar to his employment \u2014sufficiency of evidence\nThe Industrial Commission\u2019s conclusion that plaintiff\u2019s spontaneous tear of the rotator cuff resulted from causes or conditions which were \u201ccharacteristic of and peculiar to\u201d his employment was supported by proper findings based upon competent evidence, and the Commission properly determined that plaintiff suffered from an occupational disease, where plaintiff was a janitor who operated a 500-pound, self-propelled power sweeper every other day for approximately seven hours; plaintiff and other employees noticed that the machine started pulling slightly to the right; plaintiff gradually started having pains in his right arm and shoulder and then experienced swelling and discoloration; plaintiff was diagnosed as having a spontaneous tear of the rotator cuff resulting from repeated stress or low impact trauma; an orthopaedist who performed arthroscopic surgery on plaintiff testified that his injury was consistent with the type of work plaintiff performed and that plaintiff\u2019s work placed him at a higher risk than the general public for injuries to the shoulder or arms; and defendant conceded that there was competent evidence to support a finding that the disease was due to causes and conditions \u201ccharacteristic of plaintiff\u2019s employment\u201d and that the disease was not an ordinary disease of life to which the general public is equally exposed outside the employment. N.C.G.S. \u00a7 97-57(13).\nAm Jur 2d, Master and Servant \u00a7\u00a7 123, 124, 187 et seq.\nAppeal by defendant from Opinion and Award of the North Carolina Industrial Commission filed 21 May 1992. Heard in the Court of Appeals 17 June 1993.\nSnow & Skager, by James M. Snow, for plaintiff-appellee.\nYoung, Moore, Henderson & Alvis, P.A., by Richard J. Archie and J. D. Prather, for defendant-appellant." }, "file_name": "0103-01", "first_page_order": 133, "last_page_order": 139 }