The Odd and Odious Occupational Disease: A Three-Part Series - Part I: Enumerated versus Unenumerated Conditions

By: Jeffrey A. Misenheimer and Melissa P. Woodard

Welcome to Part I of our three-part series on occupational diseases in North Carolina.  In this post, we will provide an overview of the statute regarding occupational diseases and discuss the differences between conditions that are specifically named, or enumerated, in the statute and those that are not specifically listed, or unenumerated.

There are generally two types of workers’ compensation claims: injuries by accident and occupational diseases.  Injuries by accident are characterized by sudden onsets of pain following a workplace accident, while occupational diseases involve conditions that develop over time due to some kind of workplace exposure or overuse.  Occupational diseases do not require an “accident” in order to be compensable, but there are specific requirements depending on the condition that is being alleged.

Under N.C. Gen. Stat. § 97-53, there are 27 specifically enumerated conditions that may be considered occupational diseases.  These include the somewhat common conditions of asbestosis and silicosis, as well as some uncommon issues like undulant fever and anthrax.  The statute also lists hearing loss, which has its own specific requirements, and a “catch-all” provision under which any condition has the potential to be considered a compensable occupational disease.  Some common examples include carpal tunnel syndrome, cancer, asthma, and overuse claims.

In order to prove a compensable occupational disease regarding the 27 enumerated conditions, the plaintiff needs to show “a causal link between the condition for which plaintiff seeks compensation and plaintiff’s employment.”  James v. Perdue Farms, Inc., 160 N.C. App. 560, 562, 586 S.E.2d 557, 560 (2003) (citations omitted).  The plaintiff must also prove the “employment ‘significantly contributed to or was a significant causal factor in the disease’s development.’” Id.  Case investigation is imperative before considering whether to accept or deny a claim for an enumerated occupational disease.

With regard to the unenumerated diseases, the plaintiff has a higher burden of proof.  In these cases, the employee must show the occupational disease is “(1) characteristic of persons engaged in the particular trade or occupation . . . (2) not an ordinary disease of life to which the public generally is equally exposed . . . 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).  To fulfill this Rutledge test, the plaintiff must show “the employment placed him at a greater risk for contracting the condition than the general public.”  Briggs v. Debbie’s Staffing, Inc., 258 N.C. App. 207, 210, 812 S.E.2d 706, 709 (2018).  Proving and defending against the element of increased risk often requires expert testimony from physicians, toxicologists, and/or ergonomic experts.

In summary, the two types of occupational diseases carry different burdens of proof, but carriers are more likely to experience unenumerated claims. The attorneys at Lewis & Roberts can assist with completing the extensive and thorough investigation that is required before making a decision on the compensability of a claim involving an occupational disease. In the next installment in this series, we will discuss issues surrounding asbestos-related diseases.