{ "id": 8957964, "name": "GLENN R. CARROLL, Employee, Plaintiff v. TOWN OF AYDEN, Employer, AND SELF-INSURED (N.C. LEAGUE OF MUNICIPALITIES, Servicing Agent), Defendants", "name_abbreviation": "Carroll v. Town of Ayden", "decision_date": "2003-10-21", "docket_number": "No. COA02-1551", "first_page": "637", "last_page": "646", "citations": [ { "type": "official", "cite": "160 N.C. App. 637" } ], "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": "256 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "200" } ], "opinion_index": 0 }, { "cite": "297 N.C. 458", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571831 ], "year": 1979, "pin_cites": [ { "page": "476" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0458-01" ] }, { "cite": "283 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "105-06" } ], "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": "301 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "365", "parenthetical": "quoting Hansel v. Sherman Textiles, 304 N.C. 44, 52, 283 S.E.2d 101, 105-06 (1981)" }, { "page": "365" } ], "opinion_index": 0 }, { "cite": "308 N.C. 85", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707972 ], "year": 1983, "pin_cites": [ { "page": "93", "parenthetical": "quoting Hansel v. Sherman Textiles, 304 N.C. 44, 52, 283 S.E.2d 101, 105-06 (1981)" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0085-01" ] }, { "cite": "581 S.E.2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "141" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 480", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188153 ], "year": 2003, "pin_cites": [ { "page": "483" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0480-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "413-14" } ], "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "year": 1998, "pin_cites": [ { "page": "680-81" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "530 S.E.2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "553", "parenthetical": "citing Adams v. AVX Corp., 349 N.C. 676, 680-81, 509 S.E.2d 411, 413-14 (1998)" }, { "page": "553" } ], "opinion_index": 0 }, { "cite": "352 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684964 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "116", "parenthetical": "citing Adams v. AVX Corp., 349 N.C. 676, 680-81, 509 S.E.2d 411, 413-14 (1998)" }, { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0109-01" ] }, { "cite": "467 S.E.2d 703", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "342 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796139, 796140, 795983, 796016, 795895 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/342/0651-01", "/nc/342/0651-04", "/nc/342/0651-03", "/nc/342/0651-02", "/nc/342/0651-05" ] }, { "cite": "38 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1946, "pin_cites": [ { "page": "100" } ], "opinion_index": 0 }, { "cite": "226 N.C. 325", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618886 ], "year": 1946, "pin_cites": [ { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/nc/226/0325-01" ] }, { "cite": "463 S.E.2d 559", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "562", "parenthetical": "quoting Rewis v. Ins. Co., 226 N.C. 325, 330, 38 S.E.2d 97, 100 (1946)" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 783", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918192 ], "year": 1995, "pin_cites": [ { "page": "787", "parenthetical": "quoting Rewis v. Ins. Co., 226 N.C. 325, 330, 38 S.E.2d 97, 100 (1946)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0783-01" ] }, { "cite": "519 S.E.2d 524", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "351 N.C. 42", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155858 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/351/0042-01" ] }, { "cite": "534 S.E.2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 310", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 131899, 132118, 132190, 132075 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0310-01", "/nc/350/0310-04", "/nc/350/0310-03", "/nc/350/0310-02" ] }, { "cite": "510 S.E.2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "709" }, { "page": "709" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 151", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237233 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "156" }, { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0151-01" ] }, { "cite": "535 S.E.2d 602", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "604" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 130", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12122648 ], "year": 2000, "pin_cites": [ { "page": "132-33" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0130-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 95-131", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 1 }, { "cite": "571 S.E.2d 860", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "862", "parenthetical": "stating \"Plaintiff has the burden of proving [an occupational disease] by a preponderance of the evidence\"" } ], "opinion_index": 1 }, { "cite": "154 N.C. App. 433", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250454 ], "year": 2002, "pin_cites": [ { "page": "436", "parenthetical": "stating \"Plaintiff has the burden of proving [an occupational disease] by a preponderance of the evidence\"" } ], "opinion_index": 1, "case_paths": [ "/nc-app/154/0433-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-53", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(13)" }, { "page": "(13)" } ], "opinion_index": 1 }, { "cite": "389 S.E.2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "823" } ], "opinion_index": 1 }, { "cite": "98 N.C. App. 34", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522410 ], "year": 1990, "pin_cites": [ { "page": "37" } ], "opinion_index": 1, "case_paths": [ "/nc-app/98/0034-01" ] }, { "cite": "262 S.E.2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "835" }, { "page": "835" } ], "opinion_index": 1 }, { "cite": "45 N.C. App. 197", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548032 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "205" }, { "page": "205" } ], "opinion_index": 1, "case_paths": [ "/nc-app/45/0197-01" ] } ], "analysis": { "cardinality": 932, "char_count": 23202, "ocr_confidence": 0.765, "pagerank": { "raw": 2.381485599257883e-07, "percentile": 0.7968646048476186 }, "sha256": "8bd66922f110b9516ce1e78fe857bf1ff0c6e438528f37fdf9235299a86fb89a", "simhash": "1:39da69c6b4f9aa44", "word_count": 3654 }, "last_updated": "2023-07-14T16:12:23.823025+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WYNN dissents.", "Judge TYSON concurs." ], "parties": [ "GLENN R. CARROLL, Employee, Plaintiff v. TOWN OF AYDEN, Employer, AND SELF-INSURED (N.C. LEAGUE OF MUNICIPALITIES, Servicing Agent), Defendants" ], "opinions": [ { "text": "LEVINSON, Judge.\nPlaintiff appeals from an opinion and award of the North Carolina Industrial Commission denying plaintiffs Workers\u2019 Compensation claim. We affirm.\nPlaintiff was employed by the Town of Ayden, North Carolina, in 1980 in the water and sewer department. His initial job duties included tasks associated with installation, maintenance, and repair of the Town\u2019s water and sewer system. In performing his duties, plaintiff was regularly exposed to raw sewage containing materials such as water, urine, feces, grease, feminine hygiene products, prophylactics, small amounts of blood, and other items and substances that people flush down toilets.\nThe sewage sometimes touched plaintiff\u2019s skin or entered his eyes and mouth. When plaintiff had cuts or abrasions, the sewage came into contact with his broken skin. Plaintiff was promoted to foreman in 1984, and later to superintendent; after each promotion, his exposure to raw sewage became less frequent.\nIn 1992, liver function tests conducted during a physical examination of plaintiff indicated possible liver problems. Testing revealed that plaintiff did not have hepatitis A or B. In 1998, routine blood work for an unrelated problem also yielded abnormal liver function test results. Plaintiff\u2019s physician referred him to Dr. Douglas F. Newton, an internist and gastroenterologist, who diagnosed plaintiff with hepatitis C. In Dr. Newton\u2019s opinion, plaintiff had been infected for about six years and had acquired the infection due to contact with sewer water.\nPlaintiff filed a workers\u2019 compensation claim alleging that his hepatitis C was a compensable occupational disease as defined in N.C.G.S. \u00a7 97-53(13) (2001). In support of his claim, plaintiff offered Dr. Newton\u2019s deposition testimony, in which the doctor offered an opinion that, to a reasonable degree of medical certainty, plaintiff was likely infected with hepatitis C through work-related contact with sewage. Plaintiff also presented evidence that his wife of twenty-seven years had tested negative for hepatitis C, and testified that he had no history of blood transfusions, tattoos or intravenous drug use, and had not had extramarital sexual contact.\nDefendant offered the deposition testimony of Dr. John F. Campbell, an expert in infectious diseases. Dr. Campbell never treated plaintiff; his testimony was based upon plaintiff\u2019s job description and personnel file, interrogatories, and plaintiffs medical file. Dr. Campbell testified that he was unaware of any studies linking plaintiffs occupation with a greater-than-average risk of hepatitis C infection. Moreover, Dr. Campbell indicated that, while he could not determine the cause of plaintiffs hepatitis C, he saw no evidence of plaintiff contracting hepatitis C at work.\nThe Commission found, in pertinent part:\n10. Because Dr. Newton attributed plaintiffs hepatitis to his exposure to sewage at work, plaintiff filed this workers\u2019 compensation claim. Defendant then presented the issue to Dr. Campbell, an internist and infectious disease specialist who had worked for the Center for Disease Control for two years during his career. Dr. Campbell searched the medical literature and found no studies which showed Hepatitis C to be present in sewage or that sewage could transfer the virus. There was no scientific evidence to support the theory that sewer workers were at an increased risk of acquiring the infection and, in view of the large number of sewage systems and sewer workers, the doctor was of the opinion that the risk would have been noticed if it existed. Despite the large number of patients he had treated for Hepatitis C, Dr. Campbell had never had a patient claim to have contracted the disease from exposure to sewage.\n11. Dr. Campbell explained that Hepatitis C is a virus which is transmitted through a blood borne route. . . . Hepatitis C is usually transmitted by shared intravenous needles, but there have been less frequent reports of sexual transmission and rare cases of cuts or punctures allowing the virus to enter the blood stream when exposed to infected blood. ... In addition, the Hepatitis C virus has a very short life span outside of the host, which has hampered research since it cannot be cultured. The fact that the Hepatitis C virus does not survive long outside the host renders transmission through sewer waste unlikely. There has been considerable effort in medicine to identify the routes of transmission for Hepatitis C. Contact with sewer waste has not been identified as a potential cause for Hepatitis C.\n12. Dr. Newton was too quick to attribute plaintiffs condition to his exposure to sewage. Not only did Dr. Newton not have scientific authority to support his opinion, he could not base his opinion on his own experience in medical practice since he had not treated another sewer worker for Hepatitis C. In addition, as noted by Dr. Campbell, there are disincentives for patients to disclose the types of activities which could lead to infection.\n13. Although plaintiff was exposed to untreated sewer water which would have contained some blood and although he worked at times with cuts or abrasions on his skin, he has not proven by the greater weight of the evidence to have been placed at an increased risk of developing Hepatitis C by reason of his exposure to untreated sewage in his employment with defendant. Nor was his exposure to untreated sewage proven to have been a significant contributing factor in his contraction of the disease.\n14. Plaintiff has not proven that he developed an occupational disease which was due to causes and conditions characteristic of and peculiar to his employment with defendant employer and which excluded all ordinary diseases of life to which the general public was equally exposed.\nThe Commission made the following relevant conclusion of law:\n1. Plaintiffs Hepatitis C was not an occupational disease which was due to causes and conditions characteristic of and peculiar to his employment with defendant-employer and which excluded all ordinary diseases of life to which the general public was equally exposed. Dr. Newton\u2019s bald opinion is not accepted as credible evidence of causation because his opinion is not based on accepted medical principles of differential diagnosis and is not supported by the accepted medical literature.\n(citations omitted).\nThe Full Commission, with one Commissioner dissenting, denied compensation. Plaintiff now appeals the Commission\u2019s opinion and award, contending (1) the Commission erred in finding that plaintiff was not exposed to hepatitis C at work, and (2) the Commission erred in concluding that plaintiffs hepatitis C infection was not caused by his employment.\nOur review of the Commission\u2019s opinion and award \u201cis limited to a determination of (1) whether the Commission\u2019s findings of fact are supported by any competent evidence in the record; and (2) whether the Commission\u2019s findings justify its conclusions of law.\u201d Goff v. Foster Forbes Glass Div., 140 N.C. App. 130, 132-33, 535 S.E.2d 602, 604 (2000). \u201cThe facts found by the Commission are conclusive upon appeal to this Court when they are supported by competent evidence, even when there is evidence to support contrary findings.\u201d Pittman v. Int\u2019l Paper Co., 132 N.C. App. 151, 156, 510 S.E.2d 705, 709, disc. review denied, 350 N.C. 310, 534 S.E.2d 596, aff\u2019d per curiam, 351 N.C. 42, 519 S.E.2d 524 (1999). \u201c[T]his Court is \u2018not at liberty to reweigh the evidence and to set aside the findings . . . simply because other . . . conclusions might have been reached.\u2019 \u201d Baker v. Sanford, 120 N.C. App. 783, 787, 463 S.E.2d 559, 562 (1995) (quoting Rewis v. Ins. Co., 226 N.C. 325, 330, 38 S.E.2d 97, 100 (1946)), disc. review denied, 342 N.C. 651, 467 S.E.2d 703 (1996). \u201c[T]he full Commission is the sole judge of the weight and credibility of the evidence....\u201d Deese v. Champion Int\u2019l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000) (citing Adams v. AVX Corp., 349 N.C. 676, 680-81, 509 S.E.2d 411, 413-14 (1998)). \u201c[T]he Commission does not have to explain its findings of fact by attempting to distinguish which evidence or witnesses it finds credible.\u201d Id. This Court reviews the Commission\u2019s conclusions of law de novo. Griggs v. E. Omni Constructors, 158 N.C. App. 480, 483, 581 S.E.2d 138, 141 (2003).\nUnder the Workers\u2019 Compensation Act, a compensable occupational disease includes \u201c[a]ny disease . . . 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.G.S. \u00a7 97-53(13) (2001).\nFor 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 \u201ca causal connection between the disease and the [claimant\u2019s] employment.\u201d\nRutledge v. Tultex Corp., 308 N.C. 85, 93, 301 S.E.2d 359, 365 (1983) (quoting Hansel v. Sherman Textiles, 304 N.C. 44, 52, 283 S.E.2d 101, 105-06 (1981)). \u201c[T]he first two elements are satisfied if, as a matter of fact, the employment exposed the worker to a greater risk of contracting the disease than the public generally.\u201d Id. at 93-94, 301 S.E.2d at 365. Proof of the third element, causal connection between the disease and the employee\u2019s occupation, often will be based on circumstantial evidence. Booker v. Duke Med. Ctr., 297 N.C. 458, 476, 256 S.E.2d 189, 200 (1979). \u201cAmong the circumstances which may be considered are the following: (1) the extent of exposure to the disease or disease-causing agents during employment, (2) the extent of exposure outside employment, and (3) absence of the disease prior to the work-related exposure as shown by the employee\u2019s medical history.\u201d Id.\nPlaintiff first contends that the competent record evidence compelled a finding that his employment placed him at an increased risk of contracting hepatitis C. This is so, plaintiff argues, because (1) raw sewage came into contact with plaintiff\u2019s cuts and abrasions, (2) plaintiff testified that he has not engaged in other risk-enhancing behavior, and (3) plaintiff\u2019s treating physician, Dr. Newton, offered an expert opinion that plaintiff\u2019s employment resulted in his illness.\nThe Commission found that plaintiff\u2019s employment did not place him at an increased risk of contracting hepatitis based in large part on the deposition testimony of defendant\u2019s expert witness, Dr. Campbell. Dr. Campbell testified that exposure to sewer water has not been linked to the transmission of hepatitis C. Dr. Campbell also testified that hepatitis C does not survive outside of a host body for any significant amount of time, that transmission usually requires exposure of the skin to fairly large volumes of infected blood, and that no evidence exists that exposure to diluted amounts of infected blood can transmit hepatitis C. Dr. Campbell concluded that he could not identify plaintiff\u2019s job as the source of hepatitis C infection because he had seen no evidence of direct exposure to infected blood.\nDr. Campbell\u2019s testimony is competent evidence which supports the Commission\u2019s finding that plaintiff was not at an increased risk of contracting hepatitis C as a result of his employment-related contact with raw sewage. We cannot overrule the Commission\u2019s findings of fact merely because plaintiff presented evidence which would support a contrary finding. See Pittman, 132 N.C. App. at 156, 510 S.E.2d at 709.\nPlaintiff next contends that the Commission erred in concluding that his hepatitis C infection was not caused by his employment. The gravamen of this contention is that the Commission should have given greater weight to the deposition testimony of plaintiff\u2019s expert witness, Dr. Newton, than to defendant\u2019s expert witness, Dr. Campbell. This is so, plaintiff argues, because Dr. Newton actually treated plaintiff while Dr. Campbell reviewed material about plaintiff submitted to him by defense counsel.\n\u201c[T]he Commission does not have to explain its findings of fact by attempting to distinguish which evidence or witnesses it finds credible.\u201d Deese, 352 N.C. at 116, 530 S.E.2d at 553. In the present case, however, the Commission did explain its assessment of the credibility of the witnesses; the findings of fact indicate that the Commission found Dr. Campbell\u2019s testimony more persuasive than Dr. Newton\u2019s tetimony. As already indicated, Dr. Campbell\u2019s testimony is competent record evidence which supports the Commission\u2019s findings of fact. These findings of fact support the Commission\u2019s conclusion that compensation is unwarranted.\nThe assignments of error are overruled. The Industrial Commission\u2019s opinion and award is\nAffirmed.\nJudge WYNN dissents.\nJudge TYSON concurs.", "type": "majority", "author": "LEVINSON, Judge." }, { "text": "WYNN, Judge\ndissenting.\n\u201cIt is the duty of the Commission to consider all of the competent evidence, make definitive findings, draw its conclusions of law from these findings, and enter the appropriate award. In making its findings, the Commission\u2019s function is to weigh and evaluate the entire evidence and determine as best it can where the truth lies.\u201d Harrell v. J.P. Stevens & Co., 45 N.C. App. 197, 205, 262 S.E.2d 830, 835 (1980). Moreover, in workers\u2019 compensation cases, it is a \u201cgeneral principle that the provisions of the Workers\u2019 Compensation Act should be construed liberally so that benefits are not denied to an employee based on a narrow or strict interpretation of the statute\u2019s provisions.\u201d Grantham v. Cherry Hosp., 98 N.C. App. 34, 37, 389 S.E.2d 822, 823 (1990). In this case, because I believe the Commission did not consider all of the competent evidence and did not base its decision upon a fair and liberal construction of N.C. Gen. Stat. \u00a7 97-53(13), I respectfully dissent.\nThe record indicates the Commission was presented with evidence of blood-borne pathogen regulations implemented by OSHA, with which the Town of Ayden had to comply. Under OSHA standard 1910.1030, after reviewing all of the evidence in the rulemaking record, OSHA \u201cdetermined that employees face a significant health risk as the result of occupational exposure to blood and other potentially infectious materials (OPIM) because they may contain blood-borne pathogens. These pathogens include but are not limited to HBV, which causes hepatitis B; HIV, . . ., hepatitis C virus . . . .\u201d Included in the employees at risk were \u201cemployees handling regulated waste, custodial workers required to clean up contaminated sharps or spills of blood or OPIM, . . . maintenance workers, such as plumbers.\u201d Therefore, OSHA required certain standards to be implemented to minimize the risk of infection. Therefore, even though both experts testified they were not aware of any literature indicating sewer maintenance workers were at a greater risk of contracting Hepatitis C than the general public, there was competent evidence in the record indicating sewer maintenance workers were indeed at a greater risk than the general public. Accordingly, finding of fact 10, which states in part: \u201cthere was no scientific evidence to support the theory that sewer workers were at an increased risk of acquiring the infection\u201d is not supported by the record.\nMoreover, the Commission based its decision upon an improper inference from the evidence presented. In Findings of Fact 11-12, the Commission described the testimony of Dr. John Campbell and Dr. Douglas F. Newton. Dr. Newton, a licensed physician for 26 years and a board-certified expert specialist in gastroenterology and internal medicine, treated plaintiff, analyzed plaintiffs medical records and questioned plaintiff about his medical history, any possible history of risky behaviors, and his employment. In contrast, Dr. Campbell had been licensed in North Carolina for 13 years and had never treated plaintiff. Although Dr. Campbell had worked for two years with the Center for Disease Control, he did not conduct any research in Hepatitis C and has never published on the subject. Rather, Dr. Campbell\u2019s worked in epidemic intelligence at the CDC. In order to render an opinion, Dr. Campbell researched medical literature and reviewed plaintiffs medical and employment records.\nIn rendering its finding on Dr. Newton\u2019s testimony, the Commission stated: \u201cDr. Newton was too quick to attribute plaintiff\u2019s condition to his exposure to sewage. Not only did Dr. Newton not have scientific authority to support his opinion, he could not base his opinion on his own experience in medical practice since he had not treated another sewer worker for Hepatitis C.\u201d\nA close analysis of the depositions indicate the doctors provided essentially the same testimony regarding Hepatitis C. Both doctors testified that Hepatitis C is a blood-borne pathogen that infects the liver and can possibly lead to death. They both testified that most people get it through direct exposure through cuts or injections and that IV drug use was the most common method. They also testified that people could get it through blood transfusions but that it was rare to get it through sexual conduct. Finally, they both testified that they were unaware of any medical literature linking Hepatitis C to sewer maintenance workers or indicating Hepatitis C could be transmitted through sewer water and neither doctor had treated another sewer worker for Hepatitis C.\nBased upon a complete history of plaintiff\u2019s behaviors, employment and medical care, Dr. Newton attributed plaintiff\u2019s Hepatitis C infection to workplace exposure. However, .without the benefit of plaintiff\u2019s complete history and based upon his assessment of the medical literature, Dr. Campbell testified that plaintiff did not contract it from workplace exposure and could not state a cause of his Hepatitis C.\nDisregarding the OSHA standard and the similarities in the testimony, the Commission based Findings of Fact 11 and 12 solely upon the doctors\u2019 testimony that they were unaware of any medical literature indicating Hepatitis C could be transmitted through sewer water or that sewer workers were at a greater risk of contracting the disease. Notably, neither doctor testified that there was no scientific evidence of such a connection.\nFinally, the Commission, disregarding plaintiff\u2019s work environment and behavioral history, neglected its duty to apply a fair and liberal construction to the statute. As plaintiff explained to his doctor and the Commission, he began working for the Town of Ayden as a water and sewer maintenance and lift station technician in 1980. From 1980 until 1986, he worked on a daily basis for an average of 4-5 hours in untreated, raw sewage that contained needles, syringes, blood, urine, feces, feminine hygiene products, prophylactics and any other thing people flushed down a toilet. Because he was working with metal and rough surfaces, he would frequently get cuts and abrasions which he treated with antiseptic and covered with a band-aid. Plaintiff also had a condition where his nose would bleed easily and it was not unusual for plaintiff to come out of the sewer with a nosebleed. While unclogging sewer mains and pipes, it was not unusual for plaintiff to be showered with raw, untreated sewage and it was not uncommon for sewage to enter his eyes and mouth. His rain suit and clothes would become saturated with sewage and would come into contact with his skin. His gloves would puncture and tear and raw sewage would seep into his gloves and rubber boots. Dr. Newton testified that given this exposure to blood and raw sewage and after eliminating all other possible causes of infection, he opined that plaintiff contracted Hepatitis C at work because there was no other source of exposure.\nIgnoring plaintiffs workplace exposure to blood, plaintiff\u2019s testimony indicating he had not participated in any behaviors that could have been another potential source of Hepatitis C infection, Dr. Newton\u2019s expert opinion, and OSHA regulations indicating sewer maintenance workers were at an increased risk of contracting Hepatitis C, the Commission chose to rely upon the doctors\u2019 lack of knowledge regarding medical literature on the subject. In my opinion, the Commission failed to consider all of the competent evidence, did not fulfill its duty to apply a liberal construction to N.C. Gen. Stat. \u00a7 97-53(13), and did not try to determine as best it could where the truth lay. See Harrell v. J.P. Stevens & Co., 45 N.C. App. 197, 205, 262 S.E.2d 830, 835 (1980). As the determination of whether an occupational disease exists is a mixed question of law and fact, I would conclude plaintiff established by a preponderance of the evidence that he did suffer from an occupational disease. See Hobbs v. Clean Control Corp., 154 N.C. App. 433, 436, 571 S.E.2d 860, 862 (2002) (stating \u201cPlaintiff has the burden of proving [an occupational disease] by a preponderance of the evidence\u201d).\n. Violation of the standard could result in civil or criminal penalties. See N.C. Gen. Stat. \u00a7\u00a7 95-131, 95-138 and 95-139.", "type": "dissent", "author": "WYNN, Judge" } ], "attorneys": [ "Stanley Law Firm, by Wade A. Stanley, for plaintiff-appellant.", "Lewis & Roberts, P.L.L.G., by Jack S. Holmes, for defendants-appellees." ], "corrections": "", "head_matter": "GLENN R. CARROLL, Employee, Plaintiff v. TOWN OF AYDEN, Employer, AND SELF-INSURED (N.C. LEAGUE OF MUNICIPALITIES, Servicing Agent), Defendants\nNo. COA02-1551\n(Filed 21 October 2003)\n1. Workers\u2019 Compensation\u2014 occupational disease \u2014 hepatitis C \u2014 increased risk\nThe Industrial Commission did not err in a workers\u2019 compensation case by finding that plaintiff sewer worker was not exposed to an increased risk of hepatitis C at work, because: (1) a defense expert\u2019s testimony that he could not identify plaintiff\u2019s job as the source of hepatitis C infection when there was no evidence of direct exposure to infected blood was competent evidence supporting this finding; and (2) the Commission\u2019s findings of fact cannot be overruled merely based on plaintiff\u2019s presentation of evidence which would support a contrary finding.\n2. Workers\u2019 Compensation\u2014 occupational disease \u2014 hepatitis C \u2014 causation\u2014expert testimony\nThe Industrial Commission did not err in a workers\u2019 compensation case by concluding that plaintiff sewer worker\u2019s hepatitis C infection was not caused by his employment even though plaintiff contends the Commission should have given greater weight to the deposition testimony of plaintiff\u2019s expert witness rather than defendant\u2019s expert witness based on the fact that plaintiff\u2019s expert actually treated plaintiff while defendant\u2019s expert merely reviewed material about plaintiff, because: (1) the Commission does not have to explain its findings of fact by attempting to distinguish which evidence or witnesses it finds credible; and (2) defense expert\u2019s testimony is competent record evidence which supports the Commission\u2019s findings of fact.\nJudge Wynn dissenting.\nAppeal by plaintiff from an opinion and award entered 17 July 2002 by the North Carolina Industrial Commission. Heard in the Court of Appeals 9 September 2003.\nStanley Law Firm, by Wade A. Stanley, for plaintiff-appellant.\nLewis & Roberts, P.L.L.G., by Jack S. Holmes, for defendants-appellees." }, "file_name": "0637-01", "first_page_order": 667, "last_page_order": 676 }