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Norris v. Drexel Heritage Furnishings8/15/2000
Appeal 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.
Plaintiff appeals from an opinion and award of the Industrial Commission denying her claim for compensation arising out of an alleged occupational disease.
Compensation under the Workers' Compensation Act may be awarded for " 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." N.C. Gen. Stat. § 97-53(13) (1999). Thus, for a disease to be compensable under this statute, "two conditions must be met: (1) It must be `proven to be due to causes and conditions which are characteristic and peculiar to a particular trade, occupation or employment'; and (2) it cannot be an `ordinary disease of life to which the general public is equally exposed outside of the employment.'" Booker v. Medical Center, 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. § 97-53(13) is a mixed question of law and fact. See Wood v. 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).
Plaintiff 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 "tailer." 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 "patcher," repairing cracks and other defects in strips or sheets of veneer. She manually applied tape to the defective veneer.
Plaintiff 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's condition as myofascial pain syndrome.
Plaintiff 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.
The Commission found that plaintiff has fibromyalgia and that her fibromyalgia was caused or aggravated by her employment with defendant. However, because there was n
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