The Odd and Odious Occupational Disease: A Three-Part Series - Part III: The Overuse of Overuse Conditions—Short-Term Exposure Claims

By: Jeffrey A. Misenheimer and Melissa P. Woodard

This is the third and final part in our three-part series on occupational diseases in North Carolina.  In this post, we will discuss the issues surrounding overuse and short-term exposure occupational diseases.  As noted in our prior posts, Part I and Part II, there are two categories of occupational diseases: enumerated and unenumerated.  Most short-term exposure claims fall into the catch-all provision under N.C. Gen. Stat § 97-53(13).

N.C. Gen Stat. § 97-53(13) states any disease not otherwise enumerated in the statute “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” can be a compensable occupational disease in North Carolina.  Our Supreme Court has interpreted this subsection to consist of a three-part test: the disease 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).  The Court further clarified that not all “ordinary diseases of life” are excluded, but the plaintiff must prove “the employment exposed the worker to a greater risk of contracting the disease than the public generally.”  Id. at 93–94, 301 S.E.2d at 365.  Essentially, the two elements of an occupational disease under this subsection are increased risk and causation.

As noted above, most short-term exposure claims that do not involve cancers and asbestos/silica-related lung diseases fall under the catch-all provision.  These include claims for carpal tunnel syndrome, joint pain related to overuse, asthma, mental health conditions that do not involve an injury by accident, and COVID-19.  An expert is usually required to testify regarding whether the employment placed the plaintiff at an increased risk of contracting the condition.  In overuse cases, an ergonomic evaluation is often necessary and helpful.  These professionals observe and evaluate a person performing a job and determine whether the tasks could satisfy the increased risk element.

The final element, causation, can be equally difficult to prove.  Since 2020, the COVID‑19 pandemic has brought additional claims into the occupational disease arena. Proving a COVID-19 exposure occurred in the workplace—versus anywhere else where the employee could have been exposed—poses a challenge.  Generally, during the beginning of the pandemic we saw that essential workers were able to prove exposure more easily.  As a result, many carriers and employers accepted claims involving COVID-19 in this regard.  Since that time, as mandatory masking and stay-at-home orders have lifted and most aspects of workplace life began to reemerge, proving workplace exposure for essential workers is just as challenging as it would be for anyone else.

Unfortunately, while there are preventative measures and treatments available for COVID-19 and many of the other occupational diseases involving a short-term exposure or overuse, they still occur.  Carriers and employers should be mindful of the difficulty of proving both increased risk and exposure, the burden of which the plaintiff carries, before accepting an occupational disease.  As always, we recommend consulting Lewis & Roberts before accepting an occupational disease claim and contacting us for advice regarding the specifics in your next claim.