North Carolina § 97-53 - (See editor's note on condition precedent) Occupational diseases enumerated; when due to exposure to chemicals.

§ 97-53. (See editor's note on condition precedent) Occupational diseases enumerated; when due to exposure to chemicals.

The following diseases and conditions only shall be deemed to be occupational diseases within the meaning of this Article: Anthrax. Arsenic poisoning. Brass poisoning. Zinc poisoning. Manganese poisoning. Lead poisoning. Provided the employee shall have been exposed to the hazard of lead poisoning for at least 30 days in the preceding 12 months' period; and, provided further, only the employer in whose employment such employee was last injuriously exposed shall be liable. Mercury poisoning. Phosphorus poisoning. Poisoning by carbon bisulphide, menthanol, naphtha or volatile halogenated hydrocarbons. Chrome ulceration. Compressed-air illness. Poisoning by benzol, or by nitro and amido derivatives of benzol (dinitrolbenzol, anilin, and others). Any disease, other than hearing loss covered in another subdivision of this section, 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. Epitheliomatous cancer or ulceration of the skin or of the corneal surface of the eye due to tar, pitch, bitumen, mineral oil, or paraffin, or any compound, product, or residue of any of these substances. Radium poisoning or disability or death due to radioactive properties of substances or to roentgen rays, X rays or exposure to any other source of radiation; provided, however, that the disease under this subdivision shall be deemed to have occurred on the date that disability or death shall occur by reason of such disease. Blisters due to use of tools or appliances in the employment. Bursitis due to intermittent pressure in the employment. Miner's nystagmus. Bone felon due to constant or intermittent pressure in employment. Synovitis, caused by trauma in employment. Tenosynovitis, caused by trauma in employment. Carbon monoxide poisoning. Poisoning by sulphuric, hydrochloric or hydrofluoric acid. Asbestosis. Silicosis. Psittacosis. Undulant fever. Loss of hearing caused by harmful noise in the employment. The following rules shall be applicable in determining eligibility for compensation and the period during which compensation shall be payable: The term "harmful noise" means sound in employment capable of producing occupational loss of hearing as hereinafter defined. Sound of an intensity of less than 90 decibels, A scale, shall be deemed incapable of producing occupational loss of hearing as defined in this section. "Occupational loss of hearing" shall mean a permanent sensorineural loss of hearing in both ears caused by prolonged exposure to harmful noise in employment. Except in instances of preexisting loss of hearing due to disease, trauma, or congenital deafness in one ear, no compensation shall be payable under this subdivision unless prolonged exposure to harmful noise in employment has caused loss of hearing in both ears as hereinafter provided. No compensation benefits shall be payable for temporary total or temporary partial disability under this subdivision and there shall be no award for tinnitus or a psychogenic hearing loss. An employer shall become liable for the entire occupational hearing loss to which his employment has contributed, but if previous deafness is established by a hearing test or other competent evidence, whether or not the employee was exposed to harmful noise within six months preceding such test, the employer shall not be liable for previous loss so established, nor shall he be liable for any loss for which compensation has previously been paid or awarded and the employer shall be liable only for the difference between the percent of occupational hearing loss determined as of the date of disability as herein defined and the percentage of loss established by the preemployment and audiometric examination excluding, in any event, hearing losses arising from nonoccupational causes. In the evaluation of occupational hearing loss, only the hearing levels at the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second shall be considered. Hearing losses for frequencies below 500 and above 3,000 cycles per second are not to be considered as constituting compensable hearing disability. The employer liable for the compensation in this section shall be the employer in whose employment the employee was last exposed to harmful noise in North Carolina during a period of 90 working days or parts thereof, and an exposure during a period of less than 90 working days or parts thereof shall be held not to be an injurious exposure; provided, however, that in the event an insurance carrier has been on the risk for a period of time during which an employee has been injuriously exposed to harmful noise, and if after insurance carrier goes off the risk said employee has been further exposed to harmful noise, although not exposed for 90 working days or parts thereof so as to constitute an injurious exposure, such carrier shall, nevertheless, be liable. The percentage of hearing loss shall be calculated as the average, in decibels, of the thresholds of hearing for the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second. Pure tone air conduction audiometric instruments, properly calibrated according to accepted national standards such as American Standards Association, Inc., (ASA), International Standards Organization (ISO), or American National Standards Institute, Inc., (ANSI), shall be used for measuring hearing loss. If more than one audiogram is taken, the audiogram having the lowest threshold will be used to calculate occupational hearing loss. If the losses of hearing average 15 decibels (26 db if ANSI or ISO) or less in the four frequencies, such losses of hearing shall not constitute any compensable hearing disability. If the losses of hearing average 82 decibels (93 db if ANSI or ISO) or more in the four frequencies, then the same shall constitute and be total or one hundred percent (100%) compensable hearing loss. In measuring hearing impairment, the lowest measured losses in each of the four frequencies shall be added together and divided by four to determine the average decibel loss. For each decibel of loss exceeding 15 decibels (26 db if ANSI or ISO) an allowance of one and one-half percent (11/2%) shall be made up to the maximum of one hundred percent (100%) which is reached at 82 decibels (93 db if ANSI or ISO). In determining the binaural percentage of loss, the percentage of impairment in the better ear shall be multiplied by five. The resulting figure shall be added to the percentage of impairment in the poorer ear, and the sum of the two divided by six. The final percentage shall represent the binaural hearing impairment. There shall be payable for total occupational loss of hearing in both ears 150 weeks of compensation, and for partial occupational loss of hearing in both ears such proportion of these periods of payment as such partial loss bears to total loss. No claim for compensation for occupational hearing loss shall be filed until after six months have elapsed since exposure to harmful noise with the last employer. The last day of such exposure shall be the date of disability. The regular use of employer-provided protective devices capable of preventing loss of hearing from the particular harmful noise where the employee works shall constitute removal from exposure to such particular harmful noise. No consideration shall be given to the question of whether or not the ability of an employee to understand speech is improved by the use of a hearing aid. The North Carolina Industrial Commission may order the employer to provide the employee with an original hearing aid if it will materially improve the employee's ability to hear. No compensation benefits shall be payable for the loss of hearing caused by harmful noise after October 1, 1971, if employee fails to regularly utilize employer-provided protection device or devices, capable of preventing loss of hearing from the particular harmful noise where the employee works. (See editor's note on condition precedent) Infection with smallpox, infection with vaccinia, or any adverse medical reaction when the infection or adverse reaction is due to the employee receiving in employment vaccination against smallpox incident to the Administration of Smallpox Countermeasures by Health Professionals, section 304 of the Homeland Security Act, Pub. L. No. 107-296 (Nov. 25, 2002) (to be codified at 42 U.S.C. § 233(p)), or when the infection or adverse medical reaction is due to the employee being exposed to another employee vaccinated as described in this subdivision. Occupational diseases caused by chemicals shall be deemed to be due to exposure of an employee to the chemicals herein mentioned only when as a part of the employment such employee is exposed to such chemicals in such form and quantity, and used with such frequency as to cause the occupational disease mentioned in connection with such chemicals. History (1935, c. 123; 1949, c. 1078; 1953, c. 1112; 1955, c. 1026, s. 10; 1957, c. 1396, s. 6; 1963, c. 553, s. 1; c. 965; 1971, c. 547, s. 1; c. 1108, s. 1; 1973, c. 760, ss. 1, 2; 1975, c. 718, s. 4; 1987, c. 729, ss. 11, 12; 1991, c. 703, s. 10; 2003-169, s. 2.) Condition Precedent to Recovery Under this Act. - Session Laws 2003-169, s. 7, provides: "In the event that federal regulatory or statutory provisions providing compensation and benefits to persons for infection with smallpox, infection with vaccinia, or any adverse medical reaction incident to the Administration of Smallpox Countermeasures by Health Professionals, section 304 of the Homeland Security Act, Pub. L. No. 107-296 (Nov. 25, 2002) (to be codified at 42 U.S.C. § 233(p)) are adopted, a condition precedent to recovery under this act shall be that the person claiming compensation and benefits under this act shall first seek compensation and benefits under the federal provisions, with those provisions constituting primary coverage and the person then being entitled to compensation and benefits under this act not exceeding a total recovery under the federal provisions and this act equal to the amount available under the applicable provisions of this act." Editor's Note. - Session Laws 2003-169, s. 8, is a severability clause. Session Laws 2003-169, s. 9, provides that the amendment to this section by s. 2 of the act is effective June 12, 2003, and applicable to claims arising from infection or adverse medical reactions related to smallpox vaccinations incident to the Administration of Smallpox Countermeasures by Health Professionals, section 304 of the Homeland Security Act, Pub. L. No. 107-296 (Nov. 25, 2002)(to be codified at 42 U.S.C. § 233(p)) whether the infection or adverse medical reactions occurred before, on, or after June 12, 2003. Legal Periodicals. - For brief comment on the 1949 amendment, see 27 N.C.L. Rev. 495 (1949). For comment discussing workers' compensation and infectious disease in the context of Booker v. Duke Medical Center, 32 N.C. App. 185, 231 S.E.2d 187 (1977), see 9 N.C. Cent. L.J. 124 (1977). For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980). For note on occupational disease under workers' compensation statute, see 16 Wake Forest L. Rev. 288 (1980). For survey of 1980 administrative law, see 59 N.C.L. Rev. 1032 (1981). For comment on Morrison v. Burlington Indus., 304 N.C. 1 , 282 S.E.2d 458 (1981), see 4 Campbell L. Rev. 107 (1981). For note on Morrison v. Burlington Indus., 304 N.C. 1 , 282 S.E.2d 458 (1981), see 18 Wake Forest L. Rev. 801 (1982). For survey of 1982 law on workers' compensation, see 61 N.C.L. Rev. 1243 (1983). For comment discussing dual causation of occupational disease in light of Rutledge v. Tultex Corp., 308 N.C. 85 , 301 S.E.2d 359 (1983), see 19 Wake Forest L. Rev. 1137 (1983). For discussion of occupational disease compensation in light of Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85 , 301 S.E.2d 370 (1983), see 62 N.C.L. Rev. 573 (1984). For note discussing proof of causation requirement in occupational disease cases, in light of Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85 , 301 S.E.2d 359 (1983), see 7 Campbell L. Rev. 99 (1984). For note, "Caulder v. Waverly Mills: Expanding the Definition of an Occupational Disease Under the Last Injurious Exposure Rule," see 64 N.C.L. Rev. 1566 (1986). For comment, "A Proposal to Reform the North Carolina Workers' Compensation Act to Address Mental-Mental Claims," see 32 Wake Forest L. Rev. 193 (1997). For comment on the reality of work-related stress, see 20 Campbell L. Rev. 321 (1998). For article, "Why Aren't You Working?: Medlin with Proof of Disability Under the North Carolina Workers' Compensation Act," see 38 Campbell L. Rev. 211 (2016).