{ "id": 9497462, "name": "LINDA NORRIS, Employee, Plaintiff v. DREXEL HERITAGE FURNISHINGS, INC./MASCO, Employer, Defendant v. SELF-INSURED, Carrier, Defendant", "name_abbreviation": "Norris v. Drexel Heritage Furnishings, Inc./Masco", "decision_date": "2000-08-15", "docket_number": "No. COA99-1533", "first_page": "620", "last_page": "623", "citations": [ { "type": "official", "cite": "139 N.C. App. 620" } ], "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": "139 S.E.2d 753", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "760", "parenthetical": "quote omitted" } ], "opinion_index": 0 }, { "cite": "263 N.C. 317", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569848 ], "year": 1965, "pin_cites": [ { "page": "325", "parenthetical": "quote omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0317-01" ] }, { "cite": "265 S.E.2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "391" } ], "opinion_index": 0 }, { "cite": "300 N.C. 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559969 ], "year": 1980, "pin_cites": [ { "page": "167" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0164-01" ] }, { "cite": "301 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 85", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707972 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0085-01" ] }, { "cite": "283 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "106" } ], "opinion_index": 0 }, { "cite": "304 N.C. 44", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565283 ], "year": 1981, "pin_cites": [ { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0044-01" ] }, { "cite": "339 S.E.2d 490", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "494" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 324", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520586 ], "year": 1986, "pin_cites": [ { "page": "331" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0324-01" ] }, { "cite": "256 S.E.2d 692", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "695" } ], "opinion_index": 0 }, { "cite": "297 N.C. 636", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573538 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "640" }, { "page": "640" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0636-01" ] }, { "cite": "256 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "196" } ], "opinion_index": 0 }, { "cite": "297 N.C. 458", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571831 ], "year": 1979, "pin_cites": [ { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0458-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-53", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1999, "pin_cites": [ { "page": "(13)" }, { "page": "(13)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 498, "char_count": 9239, "ocr_confidence": 0.77, "pagerank": { "raw": 4.39152382399129e-07, "percentile": 0.9196155837656944 }, "sha256": "0f5f90fc2f1b19eaaeca48f007f77a23aab5933027420119b3264d403eaa5e9e", "simhash": "1:c0663cd05019439e", "word_count": 1454 }, "last_updated": "2023-07-14T19:40:43.899160+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and Judge HORTON concur." ], "parties": [ "LINDA NORRIS, Employee, Plaintiff v. DREXEL HERITAGE FURNISHINGS, INC./MASCO, Employer, Defendant v. SELF-INSURED, Carrier, Defendant" ], "opinions": [ { "text": "WYNN, Judge.\nPlaintiff appeals from an opinion and award of the Industrial Commission denying her claim for compensation arising out of an alleged occupational disease.\nCompensation under the Workers\u2019 Compensation Act may be awarded for \u201c[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.\u201d N.C. Gen. Stat. \u00a7 97-53(13) (1999). Thus, for a disease to be compensable under this statute, \u201ctwo conditions must be met: (1) It must be \u2018proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment\u2019; and (2) it cannot be an \u2018ordinary disease of life to which the general public is equally exposed outside of the employment.\u2019 \u201d Booker v. Duke Med. Ctr., 297 N.C. 458, 468, 256 S.E.2d 189, 196 (1979). Whether a given illness or disease fits within the definition of an occupational disease under N.C. Gen. Stat. \u00a7 97-53(13) is a mixed question of law and fact. See Wood v. J.P. Stevens & Co., 297 N.C. 636, 640, 256 S.E.2d 692, 695 (1979). The claimant bears the burden of proving the existence of an occupational disease. See Gay v. J.P. Stevens & Co., 79 N.C. App. 324, 331, 339 S.E.2d 490, 494 (1986).\nPlaintiff began working for the defendant-employer in 1975 and continued to work for the employer through 1996. In 1981 plaintiff began operating a splicing machine. As operator of the splicing machine, plaintiff was responsible for feeding strips of veneer into the machine. Plaintiff performed this job by leaning forward over the machine and pushing the strips, weighing less than one pound, with her arms. Plaintiff also worked as a \u201ctailer.\u201d In this capacity plaintiff caught and stacked sheets of veneer strips as they exited from the splicing machine. This job also required plaintiff to use her arms, although not as quickly or as often as she did when operating the splicing machine. Plaintiff also worked as a \u201cpatcher,\u201d repairing cracks and other defects in strips or sheets of veneer. She manually applied tape to the defective veneer.\nPlaintiff first began to notice a physical problem in July of 1995 when she observed the appearance of a knot on the back of her neck. She experienced burning and stinging sensations across her shoulders that disappeared over time. She then began to experience pain in her back. She initially consulted a chiropractor for treatment. After obtaining unsatisfactory results, in September of 1995 she consulted her family physician, Dr. Clay W. Richardson, who diagnosed her as having fibromyostitis or fibromyalgia. Plaintiff subsequently consulted a number of other medical specialists seeking diagnosis and treatment of her condition. All but one, Dr. Franciso A. Naveira, a specialist in chronic pain management, diagnosed plaintiff as having fibromyalgia. Dr. Naveira diagnosed plaintiff\u2019s condition as myofas-cial pain syndrome.\nPlaintiff did not work from March 1996 until October 1996, when she returned to work for the employer as a splicing machine operator. In March 1997 she changed jobs to a tailer. As of the date of the hearing before the deputy commissioner on 26 March 1998, she was employed by defendant as a tailer working a full forty-hour week.\nThe Commission found that plaintiff has fibromyalgia and that her fibromyalgia was caused or aggravated by her employment with defendant. However, because there was no medical evidence that plaintiff\u2019s employment with defendant placed her at an increased risk of contracting or developing fibromyalgia as compared to the general public not so employed, the Commission concluded that her fibromyalgia \u201cwas not due to causes or conditions that were characteristic of and peculiar to her employment with defendant and, therefore, was not an occupational disease.\u201d\nPlaintiff contends that the foregoing conclusion of the Commission is incorrect. She argues she proved that her employment as a splicing machine operator placed her at a greater risk of contracting fibromyalgia than the general public. She relies upon testimony of the medical experts whereby they indicated a causal relation existed between plaintiffs condition and her employment. She also relies upon the testimony of three co-workers who performed the job of splicer operator and who indicated they experienced similar burning sensations and knots in their upper backs and shoulders as a result of performing the job. Plaintiff also contends that the Commission acted under a misapprehension of law by requiring medical evidence to prove plaintiffs employment subjected her to a greater risk of developing fibromyalgia than the general public not so employed. We disagree.\nFirst, we note that not only must a claimant prove that a disease is caused by the employment, but that the disease is characteristic of persons engaged in the particular trade or occupation in which the plaintiff is engaged and that the disease is not an ordinary disease of life to which the general public is equally exposed. See Hansel v. Sherman Textiles, 304 N.C. 44, 52, 283 S.E.2d 101, 106 (1981). Proof of a causal relationship of the disease to the employment requires application of a different factual standard. See Rutledge v. Tultex Corp., 308 N.C. 85, 301 S.E.2d 359 (1983).\nSecond, with regard to the necessity of proof by expert medical testimony, our Supreme Court has stated that \u201cwhere the exact nature and probable genesis of a particular type of injury involves complicated medical questions far removed from the ordinary experience and knowledge of laymen, only an expert can give competent opinion evidence as to the cause of the injury.\u201d Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980). It has also stated that when \u201c \u2018a layman can have no well-founded knowledge and can do no more than indulge in mere speculation (as to the cause of a physical condition), there is no proper foundation for a finding by the trier without expert medical testimony.\u2019 \u201d Gillikin v. Burbage, 263 N.C. 317, 325, 139 S.E.2d 753, 760 (1965) (quote omitted). Therefore, findings regarding the nature of a disease \u2014 its characteristics, symptoms, and manifestations \u2014 must ordinarily be based upon expert medical testimony. See Wood, 297 N.C. at 640, 256 S.E.2d at 695.\nIn the present case none of the lay witnesses testified regarding any basis of knowledge as to the medical nature of plaintiffs condition or as to whether plaintiffs employment subjected her to a greater risk of contracting fibromyalgia than the general public. Moreover, although they testified that they experienced similar symptoms as plaintiff, none of plaintiffs co-workers testified that they had consulted a physician and had been diagnosed with fibromyalgia. Consequently, their testimony could not have provided a basis for a finding that plaintiffs employment subjected her to a greater risk for contracting fibromyalgia.\nFurther, none of the medical witnesses expressed an opinion as .to whether plaintiffs employment or occupation subjected her to a greater risk of contracting the disease. In fact, Dr. Naveira, upon whose deposition testimony plaintiff places great reliance, testified that he could not recall ever having as a patient a splicer operator with fibromyalgia.\nWe hold the Commission properly found and concluded, based upon the evidence presented, that plaintiff does not have a compensable occupational disease. We therefore affirm the opinion and award.\nAffirmed.\nChief Judge EAGLES and Judge HORTON concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Kuehnert Bellas & Bellas, PLLC, by Eric R. Bellas, and Daniel Law Firm, PA, by Stephen T. Daniel, for plaintiff-appellant.", "Morris York Williams Surles & Barringer, LLP, by G. Lee Martin and Kelly F. Miller, for defendant-appellee." ], "corrections": "", "head_matter": "LINDA NORRIS, Employee, Plaintiff v. DREXEL HERITAGE FURNISHINGS, INC./MASCO, Employer, Defendant v. SELF-INSURED, Carrier, Defendant\nNo. COA99-1533\n(Filed 15 August 2000)\nWorkers\u2019 Compensation\u2014 fibromyalgia \u2014 occupational disease \u2014 insufficiency of evidence\nThe Industrial Commission properly found in a workers\u2019 compensation action that plaintiff does not have a compensable occupational disease where the Commission found that plaintiff has fibromyalgia and that it was caused or aggravated by her employment but that there was no medical evidence that plaintiff\u2019s employment placed her at an increased risk of contracting or developing fibromyalgia. Findings regarding the nature of a disease must ordinarily be based upon expert medical testimony; here, none of the lay witnesses testified regarding any basis of knowledge as to the medical nature of plaintiff\u2019s condition or as to whether plaintiff\u2019s employment subjected her to a greater risk of contracting fibromyalgia than the general public and none of the medical witnesses expressed an opinion as to whether plaintiff\u2019s employment or occupation subjected her to a greater risk of contracting the disease.\nAppeal by plaintiff from opinion and award filed 28 July 1999 by the North Carolina Industrial Commission. Heard in the Court of Appeals 31 July 2000.\nKuehnert Bellas & Bellas, PLLC, by Eric R. Bellas, and Daniel Law Firm, PA, by Stephen T. Daniel, for plaintiff-appellant.\nMorris York Williams Surles & Barringer, LLP, by G. Lee Martin and Kelly F. Miller, for defendant-appellee." }, "file_name": "0620-01", "first_page_order": 652, "last_page_order": 655 }