Workers’ Compensation – Occupational Disease – Bursitis – Intermittent Pressure – Insufficient Showing – Law of the Case

Breath v. OrthoCarolina (Lawyers Weekly No. 012-012-16, 17 pp.) (John Tyson, J.) Appealed from the Industrial Commission. N.C. App. Unpub.

Holding: Plaintiff’s doctor could not say whether plaintiff’s bursitis arose from “an acute diagnosis or something that buil[t] up over time.” Accordingly, plaintiff failed to show that he had bursitis “due to intermittent pressure in the employment.” G.S. § 97-53(17).

We affirm the Industrial Commission’s denial of plaintiff’s occupational disease claim.

Plaintiff also failed to show that his other shoulder conditions were occupational diseases. As the Commission found, plaintiff’s doctor “made it clear during his deposition that it would be sheer speculation for him to say that plaintiff’s job duties placed him at an increased risk of developing his left shoulder problems as compared to members of the general public not so employed.”

Acting pro se, plaintiff initially sought benefits for an accidental injury. The deputy commission determined that plaintiff’s injury occurred under normal working conditions and in his normal work routine and denied his injury-by-accident claim.

Plaintiff argues that it is “logically and factually impossible” to reconcile the Commission’s more recent conclusion that plaintiff’s bursitis was not due to intermittent pressure in the employment with the deputy commissioner’s earlier determination. When a party fails to appeal from a tribunal’s decision that is not interlocutory, the decision becomes the law of the case and cannot be challenged in subsequent proceedings in the same case.

This is not the “same case” as plaintiff’s previous claim. After the denial of his injury-by-accident claim and failure to appeal to the full Commission, plaintiff brought a wholly new claim, alleging an occupational disease. Plaintiff’s “law of the case” argument is overruled.

Affirmed.