Ramsay Law Firm is pleased to announce a win at the Deputy Commissioner level in a complex occupational disease claim for an employee’s shoulder. The employee worked as a battery installation technician whose job involved installing and maintaining industrial grade batteries weighing over one-hundred pounds. He developed increasing pain in his shoulder over time because of his very heavy work. He had no sudden incident, but rather wear and tear over time.
Eventually, he had to stop working due to a rotator cuff tear.
The Employer & Insurance Carrier Initially Denied Our Client’s Workers’ Compensation Claim
The employer and insurance carrier denied the claim stating his job did not cause the rotator cuff tear and he was at no increased risk for developing a shoulder condition due to his occupation.
They hired an orthopedic surgeon and an ergonomic expert to give opinions to that effect. At the hearing, attorney Scott Galiger showed that the employee’s job was indeed heavier than over 90% of the occupations in the United States.
He successfully cross-examined the hired experts of the insurance company, and their testimony was given no weight by the Deputy Commissioner who decided the case. Additionally, the employee’s treating physician gave an opinion that the job did place him at an increased risk of shoulder impingement syndrome in both shoulders and caused his need for surgery.
The insurance company and employer did not appeal, and the award is final.
Our client received over two years of benefits for being out of work, substantial medical bills, and continuing payment of disability benefits.
Understanding the Standard for an Occupational Disease
Scott Galiger, the attorney on this case detailed the standard for an occupational disease in his legal brief as follows: Once the plaintiff has established that he works in an occupation that requires heavy lifting, pushing and pulling with his arms and shoulders in the battery installations and repetitive reaching with the preventive maintenance, the next question is whether he has met his burden of proving the elements of an occupational disease pursuant to N.C.G.S. §97-53(13), the “catch-all” provision of the occupational disease statute.
Section 97-53(13) defines occupational disease as “[a]ny disease, other than hearing loss… 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.” For a disease to be compensable under § 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 a causal connection between the disease and the claimant’s employment.
Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 93, 301 S.E.2d 359, 365 (1983) (citations and quotation marks omitted).
“Notwithstanding the overriding legislative goal of providing comprehensive coverage for occupational diseases, the plaintiff has the burden of proof on all three elements of the Rutledge test.” Matthews v. City of Raleigh, 160 N.C. App. 597, 601, 586 S.E.2d 829, 834 (2003) (citations and quotation marks omitted).
“[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.” Rutledge, 308 N.C. at 93, 94, 301 S.E.2d at 365 (citing Booker v. Duke Medical Center, 297 N.C. 458, 468, 256 S.E.2d 189, 196 (1979)). The third element is satisfied if the employment “significantly contributed to, or was a significant causal factor in, the disease’s development.” Rutledge, 308 N.C. at 101, 301 S.E.2d at 369-70. North Carolina has essentially adopted a two-part test that the plaintiff must prove to show an unlisted occupational disease – generally referred to as increased risk and causation. Robbins v. Wake Cty. Bd. Of Educ. 151 N.C. App. 518, 566 S.E.2d 139 (2002).
Do You Need Help With Your North Carolina Workers’ Compensation Claim?
If you have a job that places heavy loads on your shoulders and develops a rotator cuff tear or shoulder impingement syndrome, call Ramsay Law Firm for a free consultation. Your claim may be covered even if you did not suffer a sudden injury where the damage happened over time.
Having the right attorney to fight for you makes all the difference in a complex workers’ compensation claim and our Board Certified Specialists can help you too, starting with a free consultation.
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