On September 20, 2018 the Supreme Court declined a petition for discretionary review of the North Carolina Court of Appeals decision in the matter of Briggs v. Debbie’s Staffing, Inc., 812 S.E.2d 706, 707 (N.C. Ct. App.), review dismissed, 818 S.E.2d 274 (N.C. 2018), and review denied, 818 S.E.2d 277 (N.C. 2018). As a result, the Court of Appeal’s decision regarding the necessity of expert testimony to prove the greater risk element of an occupational disease claim is preserved as precedent.
In Briggs, the plaintiff was a technician that used a machine that the plaintiff claimed created a dusty environment leading to development of COPD and asthma. The plaintiff filed a claim for an occupational disease that was denied by the defendants resulting in a hearing. In post-hearing depositions, the plaintiff’s expert testified that that the plaintiff’s conditions were caused by substances he was exposed to during employment. However, he conceded that he was not aware that the plaintiff (1) smoked, (2) had been given a respirator during working hours, (3) a history of marijuana use, and (4) previously treated for allergies with albuterol. A defense expert opined that the plaintiff’s conditions predated working at the employer. The deputy commissioner entered an Opinion and Award finding the plaintiff had met his burden of proving a compensable occupational disease. The Full Commission reversed the decision and denied benefits on the basis the plaintiff failed to present medical evidence that the alleged conditions of employment placed him at a greater risk of contracting the diseases than the general public. The plaintiff appealed to the Court of Appeals.
On appeal, the plaintiff argued that an expert medical evidence was not required to prove greater risk. Instead evidence of lay testimony, articles, and “common sense” were sufficient to meet the burden of proof. The defendants argued that expert medical evidence was required to establish the element of greater risk under the three prong test of Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 93, 301 S.E.2d 359, 365 (1983). The Court of Appeals entered a decision concluding that case law consistently required expert medical evidence be produced in order to satisfy the first two prongs of the Rutledge test, citing Thomas v. McLaurin Parking Co., 181 N.C. App. 545, 551, 640 S.E.2d 779, 783 (2007). As a result, the Full Commission Opinion and Award was affirmed.