Repetitive Motion Disease Found for Back Injury in Comp Case

Saturday, September 22, 2007 | 0

By Brent Adams

The North Carolina Court of Appeals has upheld a workers' compensation claim arising out of a back injury which was not caused by an accident or by a specific traumatic incident.

In workers' compensation cases, it is usually necessary for a claimant to prove that he was injured by an "accident" in order to recover. In recent years, however, this rule has been greatly relaxed, especially with respect to back injuries.

Several years ago, the North Carolina General Assembly changed the definition of disability such that compensation benefits were allowed for injuries arising out of a "specific traumatic incident." This exception only applied to back injuries. Injuries to other parts of the body caused by "specific traumatic incidents" were routinely disallowed. A specific traumatic incident is significantly different from an "accident." An example of a specific traumatic incident would arise, for instance, when a worker lifts a heavy object and suddenly feels a "catch" in his back. This event is not an "accident" in the traditional sense. However, it does qualify as a specific traumatic incident.

In the recent Court of Appeals case, Clemmons v. Securitas, the Court of Appeals approved an award of workers' compensation benefits to a security guard who suffered neck and spinal cord damage, even though such damage was caused neither by an accident nor by a specific traumatic incident.

This case represents probably the most dramatic example of a relaxation in North Carolina of the requirements to collect workers' compensation benefits without there being an accident as a cause of the injury.

The law which saved this security guard's claim allows recovery for an occupational disease.

Occupational diseases usually arise from exposure to asbestos, cotton dust, certain chemicals, or other unusual elements in the workplace. There is a catch-all provision in the statute under which the courts have construed to allow recovery for conditions which were traditionally not thought of as being an occupational disease. This catch-all provision provides that an occupational disease is a condition that is "not an ordinary disease of life to which the public generally is equally exposed." The most common condition arising under this catch-all provision has been carpal tunnel syndrome arising out of continuous use of a computer keyboard. The Clemmons case is significant in that it applied the catch-all provision to a neck condition.

The claimant had argued that both his neck and low back were injured and damaged as the result of an occupational disease. However, the Industrial Commission (both at the Deputy level and the Full Commission level) denied the claim for the low back and held that the plaintiff's lumbar degenerative disc disease is an ordinary disease of life.

However, the Industrial Commission found that the plaintiff's cervical (neck) degenerative disc disease is not an ordinary disease of life to which the general public is equally exposed and, therefore, found that the condition was an occupational disease.

In so holding, the Industrial Commission found that the plaintiff's cervical condition was due to causes and conditions characteristic of and peculiar to his employment and was, therefore, not an ordinary disease of life to which the general public was easily exposed. Supporting this conclusion was the fact that, after the Sept. 11, 2001 terrorist attacks, security guards at nuclear plants were required by federal regulations to be more heavily armed and wear more gear. The claimant was required to carry a semiautomatic rifle or shotgun, a handgun, many rounds of ammunition for each weapon, a facemask, a radio, and other equipment in addition to body armor he was compelled to wear after Sept. 11, 2001. The total weight of the gear was approximately forty pounds. The Commission concluded that the claimant's shoulders had to bear much of the weight that he was carrying and that the unusual load on the plaintiff's shoulders caused contraction of the cervical muscles and placed a load on the disc in his neck so that the disc wore at an increased rate.

Although this case does not change the existing law, it is one of the first cases to hold that an injury to the neck constituted an occupational disease.

We can expect more cases in the future holding that back injuries result from occupational disease and, therefore, are compensable. Before this new relaxation of the law, this claim would have been denied.

Brent Adams is a trial lawyer. His law firm, Brent Adams & Associates, is located in Dunn, N.C. This column first appeared on the Web log, http://raleigh.injuryboard.com/. He can be contacted by e-mailing brent@brentadams.com.

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