State News : North Carolina

By: Tracey Jones and Melissa Woodard

There are two categories of workers’ compensation claims: injury by accident and occupational disease claims.  Occupational diseases are contracted over time based on the nature of the employee’s job.  Some of the most common examples are hearing loss, respiratory diseases from alleged exposure to harmful chemicals or dust, and carpal tunnel syndrome.

North Carolina has two types of occupational diseases: those enumerated, or specifically listed, in N.C.G.S. § 97-53 and those that fall into the catch-all provision of that statute.  The plaintiff must prove different criteria than when he or she alleges an injury by accident.  If an employee alleges an enumerated occupational disease, he must prove exposure to the harmful agent and causation.  Occupational diseases that fall under § 97-53(13), the catch-all provision, require proof of an additional element, increased risk.  The plaintiff must prove that the nature of his job put him at a risk greater than the general public of contracting the alleged occupational disease.  Briggs v. Debbie’s Staffing, Inc., 812 S.E.2d 706 (2018).

Occupational diseases also differ from injury by accident claims in their filing requirements.  In order to confer jurisdiction upon the Industrial Commission over an injury by accident claim, the plaintiff must file a Form 18 within two years of the date of injury or the last payment of medical bills, whichever is later.  For an occupational disease claim, however, the plaintiff has two years to file from the first date of disability or from the date a medical provider has provided an opinion causally linking the claimant’s disease and occupational exposure, whichever is later. N.C.G.S. § 97-58.  Frequently, this means the plaintiff will have long since left his or her employment with the insured employer and possibly retired altogether.

Another interesting distinction between injury by accident and occupational disease claims is found in N.C.G.S. § 97-57, which describes the employer and carrier liable for the claim.  The statute states the employer and carrier on the risk, or responsible for the claim, is the one where the employee was last injuriously exposed to the hazards of the occupational disease.  The Court has determined that injurious exposure, however slight, is enough to shift the liability to another carrier.  This issue creates a complexity to occupational disease claims that does not generally exist in injury by accident claims.  There are often multiple employers and usually many insurance carriers brought into occupational disease claims as defendants because it is difficult to prove where the last injurious exposure may have occurred.  As the result of the last injurious exposure standard being so low, often times the last employer and carrier in time ends up being liable despite evidence to the contrary.

Practice Tip: When dealing with an occupational disease claim, be sure to retain counsel as soon as possible and especially if discovery is served, because discovery in these cases can be very complicated and will require a detailed analysis regarding what is relevant and what should actually be produced.  Only in very rare cases would it be in the interest of the employer or carrier to accept an occupational disease claim due to the burden of proof on the plaintiff and the last injurious exposure defense outlined in from N.C.G.S. § 97-57.  The best practice is to allow defense counsel to take the lead on investigating the claim, in order to evaluate the strength of the last injurious exposure defense as well as answering discovery from the plaintiff.