Carroll v. Town of Ayden

586 S.E.2d 822, 160 N.C. App. 637, 2003 N.C. App. LEXIS 1927
CourtCourt of Appeals of North Carolina
DecidedOctober 21, 2003
DocketCOA02-1551
StatusPublished
Cited by4 cases

This text of 586 S.E.2d 822 (Carroll v. Town of Ayden) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carroll v. Town of Ayden, 586 S.E.2d 822, 160 N.C. App. 637, 2003 N.C. App. LEXIS 1927 (N.C. Ct. App. 2003).

Opinions

LEVINSON, Judge.

Plaintiff appeals from an opinion and award of the North Carolina Industrial Commission denying plaintiffs Workers’ Compensation claim. We affirm.

Plaintiff 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’s 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.

The sewage sometimes touched plaintiff’s 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.

In 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’s physician referred him to Dr. Douglas F. Newton, an internist and gastroenterologist, who diagnosed plaintiff with hepatitis C. In Dr. Newton’s opinion, plaintiff had been infected for about six years and had acquired the infection due to contact with sewer water.

Plaintiff filed a workers’ compensation claim alleging that his hepatitis C was a compensable occupational disease as defined in N.C.G.S. § 97-53(13) (2001). In support of his claim, plaintiff offered Dr. Newton’s deposition testimony, in which the doctor offered an opinion that, to a reasonable degree of medical certainty, plaintiff was [639]*639likely 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.

Defendant 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’s 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.

The Commission found, in pertinent part:

10. Because Dr. Newton attributed plaintiffs hepatitis to his exposure to sewage at work, plaintiff filed this workers’ 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.
11. 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 con[640]*640siderable 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.
12. 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.
13. 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.
14. 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.

The Commission made the following relevant conclusion of law:

1. 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’s 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.

(citations omitted).

The Full Commission, with one Commissioner dissenting, denied compensation. Plaintiff now appeals the Commission’s 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 [641]*641in concluding that plaintiffs hepatitis C infection was not caused by his employment.

Our review of the Commission’s opinion and award “is limited to a determination of (1) whether the Commission’s findings of fact are supported by any competent evidence in the record; and (2) whether the Commission’s findings justify its conclusions of law.” Goff v. Foster Forbes Glass Div., 140 N.C. App. 130, 132-33, 535 S.E.2d 602, 604 (2000). “The 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.” Pittman v. Int’l Paper Co., 132 N.C. App.

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Related

Kashino v. Carolina Vet. Spec. Med. Servs.
650 S.E.2d 839 (Court of Appeals of North Carolina, 2007)
Pomeroy v. MASONRY
600 S.E.2d 519 (Court of Appeals of North Carolina, 2004)
Carroll v. Town of Ayden
586 S.E.2d 822 (Court of Appeals of North Carolina, 2003)

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Bluebook (online)
586 S.E.2d 822, 160 N.C. App. 637, 2003 N.C. App. LEXIS 1927, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carroll-v-town-of-ayden-ncctapp-2003.