{
  "id": 8525507,
  "name": "DONALD JOSEPH KELLER, Employee, Appellee v. CITY OF WILMINGTON POLICE DEPARTMENT, Employer; TRAVELERS INSURANCE COMPANY, Carrier, Appellants",
  "name_abbreviation": "Keller v. City of Wilmington Police Department",
  "decision_date": "1983-12-20",
  "docket_number": "No. 8210IC1323",
  "first_page": "675",
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  "last_updated": "2023-07-14T21:11:09.312138+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges Arnold and Hill concur."
    ],
    "parties": [
      "DONALD JOSEPH KELLER, Employee, Appellee v. CITY OF WILMINGTON POLICE DEPARTMENT, Employer; TRAVELERS INSURANCE COMPANY, Carrier, Appellants"
    ],
    "opinions": [
      {
        "text": "BRASWELL, Judge.\nDuring the course of his employment as a patrol officer for the City of Wilmington, the plaintiff developed phlebitis and, subsequently, pulmonary embolus. The plaintiff sought Workers\u2019 Compensation benefits which were originally denied by a deputy commissioner. Upon his appeal to the Full Industrial Commission, the plaintiff was awarded Workers\u2019 Compensation benefits on the grounds that the phlebitis and the resulting complications were occupational diseases. The defendants, contending that this award is error, have appealed.\nThe plaintiff first worked for the defendant-employer as a patrol officer in August of 1967 until he resigned in 1972. In August of 1977, he returned to work with the defendant-employer as a patrol and training officer. This work was comprised of ten-hour shifts with 80\u00b0/o to 85% of his time spent driving and riding in a patrol car.\nOn 2 November 1980, as the plaintiff jumped into his patrol car in response to a call, he experienced pain in his right leg. Thereafter, he began visiting a physician who diagnosed his illness as superficial phlebitis. In January of 1981, he developed deep vein phlebitis and was hospitalized in March of 1981 for pulmonary embolus.\nIn the hearing before the deputy commissioner, two medical experts testified. The defendants rely upon the testimony of Dr. Robert Rosati who was of the opinion that \u201cthis occupation does not unduly expose him [the plaintiff] to the risk of thrombo-phlebitis compared to the average individual,\u201d that this disease is an ordinary disease of life to which the general public would be equally exposed, and that phlebitis is not characteristic or peculiar to the plaintiffs employment. The plaintiff, on the other hand, called his treating physician, Dr. Durwood Almkuist, III, as a witness who testified that the plaintiffs occupation which required him to sit 80% to 85% of the time not only caused the plaintiffs phlebitis but also exposed him to a greater risk of contracting that disease than the public in general. Using Dr. Almkuist\u2019s testimony, the Full Commission reversed the deputy commissioner\u2019s Opinion and Award and allowed the plaintiff to recover workers\u2019 compensation benefits.\nThe scope of our review in a workers\u2019 compensation proceeding is whether the Commission\u2019s findings are supported by any competent evidence and whether its subsequent legal conclusions are justified by those findings. Buck v. Proctor & Gamble Co., 52 N.C. App. 88, 278 S.E. 2d 268 (1981). The Commission\u2019s findings of fact are conclusive on appeal when supported by competent evidence, but the Commission\u2019s legal conclusions are subject to our review. See G.S. 97-86; Porterfield v. RPC Corp., 47 N.C. App. 140, 266 S.E. 2d 760 (1980).\nThe plaintiff claims that he is entitled to workers\u2019 compensation benefits because he has contracted an occupational disease. Since phlebitis is not one of the diseases enumerated in G.S. 97-53, the plaintiff can only recover if phlebitis meets the requirements under the general definition found in G.S. 97-53(13). This provision states that an occupational disease is:\nAny disease, other than hearing loss covered in another subdivision of this section, 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. (Emphasis added.)\nAny case involving an interpretation of G.S. 97-53(13) necessarily involves a look at Booker v. Medical Center, 297 N.C. 458, 256 S.E. 2d 189 (1979), the North Carolina case containing the most comprehensive analysis of this section. In Booker, former Chief Justice Sharp outlines the four requirements present in G.S. 97-53(13). First of all, the disease must be \u201ccharacteristic\u201d of a profession. \u201cA disease is \u2018characteristic\u2019 of a profession when there is a recognizable link between the nature of the job and an increased risk of contracting the disease in question.\u201d Id. at 472, 256 S.E. 2d at 198. Secondly, the disease must be \u201cpeculiar to\u201d the occupation. In the present case, the plaintiff is a patrol officer so the disease must be shown to be peculiar to the occupation of patrolmen. Quoting Glodenis v. American Brass Co., 118 Conn. 29, 40-41, 170 A. 146, 150 (1934), the Booker court states that \u201cpeculiar to the occupation\u201d means that \u201c \u2018the conditions of that employment must result in a hazard which distinguishes it in character from the general run of occupations . . . and is in excess of that attending employment in general.\u2019 \u201d Id. at 473, 256 S.E. 2d at 199. The third and fourth requirements respectively provide that the disease must not be an ordinary disease of life \u201c \u2018to which the general public is equally exposed outside\u2019 \u201d and that there must be a proof of causation between the injury and the employment. Id. at 475, 256 S.E. 2d at 200. G.S. 97-53(13).\nIn reviewing the Full Commission\u2019s Opinion and Award, we agree that there is competent evidence to support its findings of fact that phlebitis is characteristic of a patrol officer\u2019s profession. The plaintiff testified that the nature of his job required him to be seated 80% to 85% of the time during his ten-hour shift and other evidence was received that this amount of sitting was a cause of phlebitis. This evidence also supports the contention that there is a causal relationship between the disease and the employment. Dr. Almkuist further testified that in his opinion the plaintiffs job made him more susceptible to contracting phlebitis than the general public. Because these findings are supported by competent evidence even though there is also contrary evidence, they are conclusive and binding on this Court. Thus, the plaintiffs evidence has proved the first, third, and fourth elements as required in Booker.\nHowever, the Commission\u2019s finding of fact that the disease is \u201cpeculiar to\u201d the plaintiffs employment, the second Booker requirement, is not supported by competent evidence. In fact all the evidence given, even by the plaintiffs treating physician, indicates that phlebitis is not peculiar to the occupation of patrol officer, but rather is peculiar to all occupations which require a great deal of sitting whether the profession be that of a secretary, judge, or airplane pilot. For instance, when Dr. Almkuist was asked for his opinion explaining the reason for the plaintiffs illness, the following exchange occurred:\nA. [Dr. Almkuist] I think sitting for long periods of time is a definite cause that would lead to phlebitis and pulmonary embolus in some cases. It is not the only cause but I think it is definitely one of the possibly many causes that can lead to this.\nQ. [Plaintiffs counsel] In other words, it is your opinion that an occupation that requires you to spend 80 or 85 percent of the time either riding or driving an automobile, as in this particular case, is a very significant factor that he could have easily contracted phlebitis and further complications? (Emphasis added.)\nA. [Dr. Almkuist] Yes, sir.\nAs the record before this Court reveals, the plaintiff offered no evidence through Dr. Almkuist\u2019s testimony or otherwise that phlebitis is peculiar to the occupation of patrol officer. In Booker, id. at 473, 256 S.E. 2d at 199, the Supreme Court emphasized that the occupation itself must create a hazard for the contraction of this disease greater than that found in the general run of occupations or from employment in general. Obviously, there is a risk in the general run of occupations that there may be much sitting required. The plaintiffs physician never states that phlebitis is peculiar to the occupation of patrol officer, but merely had a bearing on the development of this illness. The defendant\u2019s expert physician, Dr. Rosati, on the other hand, specifically asserts that in his opinion phlebitis does not have \u201cany characteristics . . . peculiar to that occupation [patrol officer] which might cause the condition.\u201d Therefore, we hold the Commission\u2019s legal conclusion that the plaintiffs \u201cphlebitis and pulmonary embolus were due to causes and conditions characteristic of and peculiar to his employment as a police officer\u201d is based on a finding of fact not supported by competent evidence. Because G.S. 97-53(13) requires that the disease be peculiar to the occupation in question, the Commission\u2019s opinion and award must be reversed.\nReversed.\nJudges Arnold and Hill concur.",
        "type": "majority",
        "author": "BRASWELL, Judge."
      }
    ],
    "attorneys": [
      "Hewlett & Collins by John C. Collins for plaintiff appellee.",
      "Crossley & Johnson by Robert W. Johnson for defendant appellants."
    ],
    "corrections": "",
    "head_matter": "DONALD JOSEPH KELLER, Employee, Appellee v. CITY OF WILMINGTON POLICE DEPARTMENT, Employer; TRAVELERS INSURANCE COMPANY, Carrier, Appellants\nNo. 8210IC1323\n(Filed 20 December 1983)\n1. Master and Servant \u00a7 68\u2014 workers\u2019 compensation \u2014 occupational disease defined\nIn order for a disease which is not specifically enumerated in G.S. 97-53 to be compensable as an occupational disease, the disease must be characteristic of a profession, peculiar to the occupation, and not an ordinary disease of life to which the general public is equally exposed, and there must be proof of causation between the injury and the employment. G.S. 97-53(13).\n2. Master and Servant \u00a7 68\u2014 workers\u2019 compensation \u2014 phlebitis not occupational disease\nA patrol officer\u2019s phlebitis and resulting complications did not constitute an occupational disease where the evidence showed that phlebitis is not peculiar to the occupation of patrol officer but is peculiar to all occupations which require a great deal of sitting.\nAppeal by defendants from Opinion and Award of the North Carolina Industrial Commission entered 14 October 1982. Heard in the Court of Appeals 15 November 1983.\nHewlett & Collins by John C. Collins for plaintiff appellee.\nCrossley & Johnson by Robert W. Johnson for defendant appellants."
  },
  "file_name": "0675-01",
  "first_page_order": 707,
  "last_page_order": 711
}