An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-705
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 7 January 2014


LUIS VALLADARES,
     Employee,

      Plaintiff

      v.                                      North Carolina
                                              Industrial Commission
                                              I.C. No. X67511
TECH ELECTRIC CORP.,
     Employer,

and

CINCINNATI INSURANCE COMPANY,

      Carrier,

      Defendants.


      Appeal by Plaintiff from opinion and award entered 6 March

2013 by the North Carolina Industrial Commission.                   Heard in the

Court of Appeals 4 November 2013.


      Lennon, Camak & Bertics, PLLC, by Michael W. Bertics and S.
      Neal Camak, for Plaintiff.

      Cranfill Sumner & Hartzog LLP, by Roy G. Pettigrew and Sara
      B. Warf, for Defendants.


      DILLON, Judge.
                                     -2-
    Luis     Valladares   (Plaintiff)      appeals       from   an    opinion    and

award of the Full Commission of the North Carolina Industrial

Commission    (the    Commission)    denying       his    claim      for   workers’

compensation benefits.         For the following reasons, we affirm.

                    I. Factual & Procedural Background

    At the time of his injury, Plaintiff had been employed by

Tech Electric Corp. (Defendant) for six years as an electrical

foreman, an occupation which required that Plaintiff perform a

significant amount of squatting, kneeling, and ladder climbing

in order to “wire commercial buildings with data cables.”

    On 6 October 2011, Plaintiff was working within the scope

of his employment with Defendant when he sustained an injury to

his right knee.         Plaintiff had been splicing cable together

while “squat[ting] on his knees in a fetal position” when he

began to stand up and his right knee “popped.”                          An MRI and

subsequent examination revealed that Plaintiff had sustained a

complex    medial    meniscus     tear,    which    required         Plaintiff   to

undergo surgery.

    Defendant         denied      Plaintiff’s       claim         for      workers’

compensation benefits, and the matter came on for hearing before

Deputy Commissioner Theresa B. Stephenson on 19 January 2012.

Plaintiff stipulated at the hearing that his injury was not the
                                        -3-
result of an injury “by accident” and that he was pursuing his

claim solely as an occupational disease claim.

      Plaintiff     testified    that     the    nature    of     his    occupation,

which,      as   previously     stated,       required     him     to     perform    a

significant amount of squatting and kneeling, had placed him at

an increased risk – relative to the general public – of the type

of injury that he had sustained.                 Plaintiff’s co-worker, Gary

Shepard,     and   supervisor,      Frank       Morgan,    both    testified        and

corroborated       Plaintiff’s      description       of    his         job   duties.

However, Mr. Shepard, who was sixty-four years old at the time

of the hearing, also testified that he performed the same job

duties as Plaintiff did, but              had never experienced any knee

problems other than some soreness at the end of the day.

      Dr. Mark Galland, Plaintiff’s orthopedic surgeon, testified

to the severity of Plaintiff’s injury and to Plaintiff’s lack of

a   “good    recovery”    despite    undergoing      physical       therapy.        He

further     testified    that   Plaintiff’s       injury   had     “a    significant

acute component to it”; that the injury was more likely than not

caused by the act of standing up from a kneeling or crouched

position; and that Plaintiff was at a higher risk of sustaining

such an injury than would be individuals “who [do] not engage in

[significant amounts of kneeling, squatting, and climbing] on a
                                            -4-
regular basis, and [who] rarely, if ever, squat or spend most of

their time walking in a straight line, and not rapidly changing

direction, or performing lateral movement, or climbing ladders,

or stairs.”

    Defendant’s medical expert, Dr. Brian Szura, agreed that

Plaintiff    had    suffered     an    acute      meniscus    tear   while    working

within the scope of his employment with Defendant.                            He also

admitted that it was “probably” true                   that an individual who

frequently moves       from a      kneeling or crouching             position    to a

standing position is more at risk of a meniscus tear than is the

general population.

    On     24     August   2012,      the    Deputy   Commissioner      entered      an

opinion     and    award   denying      Plaintiff’s      claim.         The     Deputy

Commissioner rejected Plaintiff’s contention that his condition

constituted a compensable occupational disease on grounds that

“Plaintiff failed to prove that his torn right meniscus is a

diseased    condition      or   degenerative        process    developing     over   a

long time, rather than an acute injury occurring at a discrete

time and place. . . .              Nor did Plaintiff prove by competent

evidence that he suffered from any underlying disease that led

to his injury.”       (Citations omitted).            Plaintiff appealed to the

Full Commission, which, upon reviewing the record evidence and
                                       -5-
hearing arguments from the parties, entered an opinion and award

affirming the Deputy Commissioner’s decision.                In its 6 March

2013   opinion,        the    Full      Commission     noted       the    Deputy

Commissioner’s        error   in     considering     “gradualness”       of   the

condition    as   a    prerequisite     for   establishing     a    compensable

occupational disease, but nevertheless denied the compensability

of Plaintiff’s claim on the following grounds:

            Plaintiff’s   claim    for    compensation  on
            account of the right medial meniscus tear he
            suffered on October 6, 2011 must be denied,
            because he failed to establish that it was
            the result of a compensable injury by
            accident or occupational disease within the
            meaning of the North Carolina Workers’
            Compensation Act.    While it occurred at a
            definite time and place following a distinct
            injurious event, it was not the result of an
            interruption   of   his    work   routine  and
            therefore is not compensable as an injury by
            accident. N.C. Gen. Stat. §97-2(6); Gray v.
            RDU Airport Authority, 203 N.C. App. 521,
            525, 692 S.E.2d 170, 174 (2010). With regard
            to occupational disease, Plaintiff failed to
            prove that he suffers from a disease that is
            characteristic   of   and   peculiar   to  his
            employment as a telecommunications cable
            installer.    He failed to prove that his
            employment placed him at an increased risk
            of developing a torn medial meniscus as
            compared to members of the general public
            not so employed. N.C. Gen. Stat. § 97-
            53(13); Rutledge v. Tutlex Corp./Kings Yarn,
            308 N.C. 85, 93, 301 S.E.2d 359, 365 (1983).
            To hold otherwise based upon the doctors’
            testimony that a person who steps off a
            ladder or stands up from a crouching
            position has a greater potential to suffer a
                                         -6-
            torn meniscus at any given time, would turn
            the established law regarding occupational
            diseases in North Carolina on its head and
            make virtually every injurious event that
            happens at work compensable.       While the
            holding in Booker v. Duke Medical Center,
            297 N.C. 458, 256 S.E.2d 189 (1979) makes it
            clear that the element of gradualness is not
            necessarily determinative, it remains clear
            that “an occupational disease must be a
            disease which is a natural incident of a
            particular occupation, and must attach to
            that occupation a hazard which distinguishes
            it from the usual run of occupations and is
            in excess of that attending employment in
            general.” Booker at 473, S.E.2d at 199
            (quoting LeLenko v. Wilson H. Lee Co., 128
            Conn. 499, 503, 24 A.2d 253, 255 (1942)
            (citation   and  internal   quotation   marks
            omitted)).

    From this opinion and award, Plaintiff appeals.

                            II. Analysis

    Plaintiff        contends     that    the      Commission     acted    under    a

misapprehension of the law in denying his workers’ compensation

claim.    More specifically, Plaintiff argues that the Commission

misconstrued       well-established       law      in    concluding       that     his

condition    did     not    qualify      as    a    compensable     “occupational

disease” for workers’ compensation purposes.                We disagree.

    Our     review     of   the    Commission’s         opinion    and    award    is

“limited to reviewing whether any competent evidence supports

the Commission’s findings of fact and whether the findings of

fact support the Commission’s conclusions of law.”                        Deese v.
                                           -7-
Champion Int’l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553

(2000).       “The full Commission’s findings of fact ‘are conclusive

on appeal when supported by competent evidence,’ even if there

is evidence to support a contrary finding.”                     Chavis v. TLC Home

Health Care, 172 N.C. App. 366, 369, 616 S.E.2d 403, 408 (2005)

(citation omitted).            “If the conclusions of the Commission are

based upon a deficiency of evidence or misapprehension of the

law, the case should be remanded so ‘that the evidence [may] be

considered in its true legal light.’”                    Clark v. Wal-Mart, 360

N.C. 41, 43, 619 S.E.2d 491, 492 (2005) (quoting McGill v. Town

of   Lumberton,       215   N.C.    752,    754,   3   S.E.2d    324,   326   (1939))

(alteration in original).

       N.C.    Gen.    Stat.    §    97-53    (2011)      enumerates    a     list   of

recognized       occupational        diseases,         such    as   anthrax,     lead

poisoning, and asbestosis.                 Subsection (13) of this provision

sets   forth     a    “catchall”      provision,       which    provides      that   an

occupational disease shall also include the following:

              Any 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.

N.C. Gen. Stat. § 97-53 (13) (2011).
                                         -8-
    First    articulated         by    our   Supreme   Court   in    Rutledge    v.

Tultex Corp./Kings Yarn, 308 N.C. 85, 301 S.E.2d 359 (1983), the

now well-established test for determining whether a claimant’s

condition    qualifies      as    an     occupational      disease   within     the

meaning of N.C. Gen. Stat. § 97-53(13) is as follows:

            To    establish   a    right   to   workers’
            compensation benefits for an occupational
            disease under [N.C. Gen. Stat. § 97–53(13)],
            the employee must show: (1) the disease is
            characteristic of individuals engaged in the
            particular trade or occupation in which the
            claimant is engaged; (2) the disease is 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 is a causal
            relationship between the disease and the
            claimant’s employment.

Hardin v. Motor Panels, Inc., 136 N.C. App. 351, 354, 524 S.E.2d

368, 371 (2000) (citing Rutledge, 308 N.C. at 93, 301 S.E.2d at

365).

    Here,     the      Commission      denied   Plaintiff’s     claim   both     on

grounds that Plaintiff had not suffered a compensable injury by

accident    and   on    grounds       that   Plaintiff’s    condition   did     not

qualify as an occupational disease.              Plaintiff argues only that

his condition constitutes an occupational disease, and we thus

confine our analysis to this issue.
                                            -9-
      The   parties       have   stipulated         that      Plaintiff’s       injury       was

acute,     rather    than     degenerative         in    nature.            Plaintiff       thus

admits     that    his    injury     was    a   result       of     the   6   October       2011

incident and not the result of a workplace-related degenerative

condition.        The Commission relied on this concession in denying

Plaintiff’s claim, concluding that there was “no expert medical

evidence of record to support the contention that Plaintiff’s

meniscus tear was the result of a chronic degenerative process

or disease which was caused by his employment with Defendant-

Employer.”        (Emphasis added).

      Plaintiff         nevertheless        contends         that     his     acute    injury

qualifies as an occupational disease, in that, relative to the

general public, the significant amount of kneeling, squatting,

and crouching-to-standing movements he was required to perform

due   to    his    occupation       placed       him    at    an     increased        risk    of

suffering     a    meniscus      tear-type       injury.            Plaintiff       cites    the

testimony of Mr. Shepard and Mr. Morgan corroborating his own

description of the physical activity associated with his job

duties.       Plaintiff       also    cites       the    expert       testimony        of    Dr.

Galland     and     Dr.     Szura      as       supporting          his     position        that

individuals       who    frequently        engage       in   this     type     of     physical

activity – i.e., kneeling and squatting – are more likely to
                                        -10-
suffer an acute medial meniscus tear than are individuals who do

not frequently engage in such activity.               Although the Commission

rejected     this   assertion    and    expressly     found    that   Plaintiff’s

position did not place him at an increased risk of sustaining a

meniscus tear-type injury, we find it dispositive that, as the

Commission ultimately concluded, Plaintiff failed to meet his

burden in proving that his condition – an acute tear of the

medial meniscus in his right knee – constitutes an occupational

disease within the meaning of N.C. Gen. Stat. § 97-53 (13) and

the precedent of our Courts.

      Prior to Booker, which was decided in 1979, our Supreme

Court   used    the   term    “occupational      disease”      in   the      workers’

compensation context to distinguish an “injury by accident” from

a   workplace-related        condition    that    developed     gradually        over

time.     Watkins v. Morrow, 253 N.C. 652, 661, 118 S.E.2d 5, 11-12

(1961).      In Booker, our Supreme Court addressed a situation in

which   the    claimant   had    contracted      serum      hepatitis     following

accidental contact with infected blood cells in the laboratory

where   he    worked.     297    N.C.    at    462,   256    S.E.2d     at    192-93.

Although the claimant’s condition did not fall within the strict

definition of an “occupational disease,”                 in that      it had not

developed gradually, our Supreme Court nevertheless held that
                                          -11-
the claimant’s condition constituted a compensable occupational

disease.        Id. at 474, 256 S.E.2d at 199-200.                Drawing support

from decisions in other jurisdictions that had considered and

upheld workers’ compensation awards predicated upon communicable

diseases, e.g., Ritter v. Hawkeye-Security Ins. Co., 178 Neb.

792, 795, 135 N.W.2d 470, 472 (1965) (upholding disability award

to dishwasher who developed contact dermatitis as a result of

using cleansing chemicals in his work); and Russell v. Camden

Cmty. Hosp., 359 A.2d 607, 611-12 (Me. 1976) (upholding award to

nurse’s aide who contracted tuberculosis from her patients), the

Booker court concluded that “the claimant’s job exposed him to a

greater risk of contracting the disease than members of the

public or employees in general” and that this finding supported

the Commission’s conclusion “that serum hepatitis is a disease

‘characteristic         of    and    peculiar      to   his   occupation   of    lab

technician.’”       Booker, 297 N.C. at 474, 256 S.E.2d at 200.

      Booker thus stands for the proposition that an employee who

contracts a communicable disease through contact or exposure in

the   workplace        will   not    be   denied    relief    merely   because   the

disease    is    not    one   that    develops     gradually    over   time.     Id.

However, Booker affords no relief to Plaintiff in the present

case, since Plaintiff’s condition bears little resemblance to a
                                          -12-
communicable      disease,       such     as       serum    hepatitis;           nor    does    it

resemble any of the occupational diseases enumerated under N.C.

Gen. Stat. § 97-53 (13).               In our view, Booker exemplifies proper

application    of   the        catchall       provision          –   to   deem    compensable

conditions which bear the indicia of a compensable occupational

disease but are not enumerated in the statute and does not pass

muster under the Rutledge test due to unique circumstances that

have not previously been considered.                       The instant case does not

present such circumstances; and perhaps this was the sentiment

expressed    by    the    Commission          in    its     statement       that       to   grant

Plaintiff relief under these circumstances would be to “turn the

established       law    regarding        occupational                diseases         in   North

Carolina on its head.”               Regardless, we now hold that Plaintiff’s

condition – an acute injury consisting of a medial meniscus tear

in   the    right       knee     –     does     not       constitute        a     compensable

occupational disease as contemplated under N.C. Gen. Stat. § 97-

53 (13).

     Plaintiff      does        not    challenge           any       of   the    Commission’s

factual    findings      and     predicates         this     appeal       solely       upon    his

contention that the Commission erred in its application of the

law to its findings.            Accordingly, for the reasons stated above,

we affirm the Commission’s 6 March 2013 opinion and award.
                         -13-
AFFIRMED.

Chief Judge MARTIN and Judge STEELMAN concur.

Report per Rule 30(e).
