Breath v. Orthocarolina – Occupational Disease Lawsuit

In order for a disability to be compensable under North Carolina’s Workers’ Compensation Act, it has to be either due to an accident that arose out of and in the course of one’s employment or else an occupational disease. chiropractor

As defined by N.C. Gen. Stat.97-53, an occupational disease is a sickness or some morbid condition that develops gradually over a period of time and is the cumulative effect of the series of events that cause the disease.

The statute lists a number of conditions that automatically are occupational diseases. One of those, as pertinent to the recent North Carolina Court of Appeals case of Breath v. Orthocarolina, is bursitis. This is a condition involving inflammation at the joints caused by intermittent pressure in employment. 

The Breath case is one that really illustrates the importance of having an experienced workers’ compensation lawyer from Day 1.

According to court records, claimant worked as a physical therapist and for defendant since 2004, later being promoted to physical therapy clinical manager. In that job, about 75 percent of his days at work are spent performing rehabilitative services and physical therapy for defendant’s clinical patients. This work required claimant to pull, push, lift and reach. It was necessary for him to routinely reach out and overhead on a “constant” basis, as well as to lift 10 pounds constantly, up to 20 pounds frequently and up to 50 pounds occasionally.

During a session in May 2012, claimant felt an uncomfortable “twinge” in his shoulder while working with a patient. It resolved itself and he continued on with his day. However, a few days later, he felt a painful, sharp pop in that same shoulder while working with another patient. It occurred during a technique he had used on thousands of other patients before.

Immediately, claimant reported the injury to his employer. He was referred to a physician’s assistant in the practice, where he was diagnosed with shoulder strain and possibly a tear in the labrum. His work activities were restricted.

Soon after, defendant filed a form to report employee’s pain on those two dates, but the defendant’s workers’ compensation carrier filed a denial of claim. Claimant then went to his company’s human resources department to talk about the denial and was told by an employee that the injury should be covered and he should simply represent himself on the claim. Meanwhile, defendant and the insurer secured an attorney. Claimant did not.

After the denial of the claim, worker sought treatment from a doctor who worked for his employer, and it was determined he would need surgery.

Claimant, without the help of a lawyer, filed a request for a hearing before the North Carolina Industrial Commission. Meanwhile, he continued to work only administrative tasks for defendant.

He underwent surgery on the shoulder, was off work for several months, and then returned briefly before being overwhelmed by pain. Another surgery was performed.

At a hearing before a deputy commissioner on his claim, claimant represented himself, without an attorney. Commissioner determined worker didn’t sustain his injury by accident and that the condition was the result of normal conditions and normal work routine.

Claimant then appealed to the full commission. He hadn’t been told by his doctor that his illness might have been caused by repetitive motion from his work. Finally, he retained an attorney.

The attorney filed a form indicating plaintiff had suffered an occupational disease – not an injury by accident. Defendant denied the occupational disease claim. That case went before the deputy commissioner, who determined plaintiff did have an occupational disease.

But defendant appealed to the full commission, which considered testimony from claimant’s doctor (remember, also an employee of defendant) and ultimately concluded worker failed to prove his condition was compensable as an occupational disease.

Claimant then appealed to the North Carolina Court of Appeals, which affirmed. At all times, it was plaintiff who had the burden of proof to show the injury was compensable. He had to show his condition was due to intermittent pressure in employment, and he needed expert witness testimony as to the conclusion his condition was related to employment (which he did not have). Expert witness testimony is especially important in cases involving complex medical evidence.

Ultimately, plaintiff failed to prove his case. That doesn’t mean his claim wasn’t valid. But proving it can be a complex matter, and that’s why it’s important to have an attorney on board to help – even (or perhaps especially) if your employer tells you that isn’t necessary.

If you have been injured at work, contact the Lee Law Offices at 800-887-1965.

Additional Resources:

Breath v. Orthocarolina, Jan. 5, 2016, North Carolina Court of Appeals

More Blog Entries:

Rhame v. Charleston County – Repetitive Trauma Work Injury Claim Within Statutory Limitations, Jan. 4, 2016, Winston-Salem Workers’ Compensation Lawyer Blog

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