Anderson v. A. M. Smyre Mfg. Co.

• Decision Date: 20 October 1981
• Docket Number: No. 8110IC220,8110IC220
• Parties: Clarence William ANDERSON, Employee, v. A. M. SMYRE MANUFACTURING COMPANY, Employer, and Lumbermens Mutual Insurance Company, Carrier.
• Court: North Carolina Court of Appeals

Page 433

283 S.E.2d 433

54 N.C.App. 337

Clarence William ANDERSON, Employee, v. A. M. SMYRE MANUFACTURING COMPANY, Employer and Lumbermens Mutual Insurance Company, Carrier.

No. 8110IC220.

Court of Appeals of North Carolina.

Oct. 20, 1981.

Hedrick, Feerick, Eatman, Gardner & Kincheloe by Richard T. Feerick, Charlotte, for defendants-appellants.

Frederick R. Stann, Gastonia, for plaintiff-appellee.

BECTON, Judge.

Defendant argues that compensation may be awarded only to the extent that a disability results from an occupational disease and that since there is evidence that plaintiff could work at some occupation, compensation (a) should have been apportioned, or (b) should have been based on the loss or injury to an organ (lungs)--i. e., on the percentage of predicted lung function loss.

Considering the scope of appellate review of an award made by the Commission and the facts in this case, we are, as was the Commission, persuaded that the award of benefits to the plaintiff should be affirmed.

SCOPE OF REVIEW

The Commission's award is conclusive and binding on us as to all questions of fact. Our review is simply to determine whether the Commission's findings are supported by any competent evidence and whether its subsequent legal conclusions are justified by those findings. See Barham v. Food World, 300 N.C. 329, 266 S.E.2d 676 (1980); Walston v. Burlington Industries, 49 N.C.App. 301, 271 S.E.2d 516 (1980).

FACTS

Plaintiff worked in card rooms of cotton mills from 1923 or 1924 until 1978. Card rooms are considered high risk areas for contracting byssinosis. ¹ Plaintiff began working for defendant in November, 1977 but was forced to retire in May 1978 because of respiratory difficulties. Plaintiff had first experienced breathing difficulties about ten years before he began working for defendant, and at a time when he was working at Groove Thread, another cotton mill. As pointed out by the plaintiff in his brief, evidence was also offered at the hearing that: (1) plaintiff, age 58, has a fifth grade education; (2) prior to his employment in cotton textile mills, plaintiff had no lung disease or breathing difficulties; (3) plaintiff had a light smoking history ²; (4) during his employment, plaintiff developed respiratory symptoms of shortness of breath, chest tightness, and a cough with sputum production; (5) Dr. Fred T. Owens, Jr., a medical expert in the field of lung diseases, who serves on a panel of pulmonary specialists, examined the plaintiff and diagnosed his occupational disease as byssinosis; (6) plaintiff's last injurious exposure to the hazards of cotton dust was at his employment with defendant; (7) plaintiff had not done, and had no training to do any work other than textile work; (8) Dr. Owens opined that "six months exposure, at the end of [plaintiff's cotton mill] career, would constitute injurious exposure;" and (9) Dr. Owens considers the plaintiff to be 50% to 70% disabled using the AMA criteria for impairment and totally disabled to perform his former textile employment. ³

LAW

The controlling statute is G.S. 97-53(13) which deems an occupational disease to be:

Any disease, ... 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.

This statute, then, does not require the conditions of employment to be the exclusive cause of the disease. Indeed, our Supreme Court in Booker v. Medical Center, 297 N.C. 458, 472, 256 S.E.2d 189, 198 (1979) said: "[a] disease is 'characteristic' of a profession when there is a recognizable link between the nature of the job and an increased risk of contracting the disease in question." See also Humphries v. Cone Mills, 52 N.C.App. 612, 279 S.E.2d 56 (1981). As recently stated by our Supreme Court in Morrison v. Burlington Industries, --- N.C. ---, 282 S.E.2d 458 (1981), to be entitled to an award for disablement resulting from an occupational disease covered by G.S. 97-53(13), a claimant must establish:

(1) that [his] disablement results from an occupational disease encompassed by G.S. 97-53(13), i. e., an occupational disease due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment as distinguished from an ordinary disease of life to which the general public is equally exposed outside of the employment; and (2) the extent of the disablement resulting from said occupational disease, i. e., whether [he] is totally or partially disabled as a result of the disease.

304 N.C. at ---, 282 S.E.2d at 466. (Emphasis in original.) The claimant is entitled to compensation for total disability if the disablement resulting from the occupational disease is total.

In the case sub judice there is expert medical testimony that plaintiff's six months exposure to the hazards of cotton dust at defendant's plant was injurious and that plaintiff was permanently and totally disabled as a result of byssinosis. The Commission's findings and conclusions are supported by the evidence and are binding on us.

Moreover, in further response to defendant's contention that plaintiff was not totally...