Grant v. Burlington Industries, Inc.

• Court: North Carolina Court of Appeals
• Writing for the Court: BECTON; MARTIN; WEBB; WEBB
• Citation: Grant v. Burlington Industries, Inc., 335 S.E.2d 327, 77 N.C.App. 241 (N.C. App. 1985)
• Decision Date: 15 October 1985
• Docket Number: No. 8410IC1352,8410IC1352
• Parties: Lila S. GRANT v. BURLINGTON INDUSTRIES, INC. and Liberty Mutual Insurance Co.

Page 327

335 S.E.2d 327

77 N.C.App. 241

Lila S. GRANT v. BURLINGTON INDUSTRIES, INC. and Liberty Mutual Insurance Co.

No. 8410IC1352.

Court of Appeals of North Carolina.

Oct. 15, 1985.

Gunter & Wansker by Woodrow W. Gunter, II, Rockington, for plaintiff-appellant.

Hedrick, Eatman, Gardner & Kincheloe by J.A. Gardner, III, and John F. Morris, Charlotte, for defendants-appellees.

BECTON, Judge.

I

In January 1982, the plaintiff, Lila S. Grant, filed a claim with the North Carolina Industrial Commission (Commission), seeking benefits for total disability due to occupational lung disease. A Deputy Commissioner concluded that Grant's chronic obstructive lung disease was an occupational disease but that Grant was not disabled as a result. Grant's claim was denied, and Grant appealed to the Commission. In its opinion and award, the Commission adopted the factual findings and conclusions of the Deputy Commissioner. However, the Commission made an additional finding that Grant had sustained permanent damage to each of her lungs and was entitled to $15,000 equitable compensation under N.C.Gen.Stat. Sec. 97-31(24) (1979).

Grant appeals, and the defendants, Burlington Industries, Inc. and Liberty Mutual Insurance Company, cross-appeal. Grant contends: (1) that prejudicial error was committed in certain evidentiary rulings relating to the testimony of Dr. Fred McQueen; (2) that the Commission failed to make sufficiently specific findings on the issue of disability; and (3) that the Commission erred in finding and concluding that Grant is not disabled. In their cross-appeal, defendants contend that because no disability was found, it was error for the Commission to award compensation under G.S. Sec. 97-31(24).

As to Grant's appeal, we hold that (1) Dr. McQueen's testimony was erroneously excluded, and (2) the findings on disability were inadequate. We therefore remand the case so that the excluded testimony may be considered and so that the Commission may make more specific findings on disability. We therefore do not consider whether the Commission properly found that Grant was not disabled. As to the defendants' cross-appeal, we conclude that benefits are available to Grant under G.S. Sec. 97-31(24) for permanent damage to her lungs even if, on remand, the Commission concludes that she is not disabled.

II

Lila S. Grant was 51 years old at the hearing of this matter. Grant worked for Burlington Industries as a weaver in its Klopman plant for approximately eighteen years between November 1949 and May 1979. During approximately twelve years of that period, Grant was on maternity leave, worked as a homemaker, worked for Stanley Home Products, and worked as an insurance branch manager. Grant testified that her duties as branch manager largely entailed soliciting insurance door-to-door. In May 1979, she was transferred to Burlington's Richmond plant, where she worked as a smash repairer in the weave room until January 1982. The Klopman plant processed cotton material or cotton-polyester blends during Grant's employment there. The Richmond plant manufactured synthetic material only.

Medical evidence was provided by the principal witnesses: Grant herself, Dr. Charles Williams, Dr. Ted Kunstling and Dr. Fred McQueen. According to Grant, she first began to experience breathing problems in the late 1960's. She testified that her breathing problems were originally more severe on weekdays and less severe on the weekends but that by 1975 she was having breathing problems every day of the week. Grant stated that she took the lower-paying job of a smash repairer in 1979 because she was no longer able to perform the more strenuous job of weaver; however, when she last worked in 1982, she was not able to perform the duties of a smash repairer. Grant described the remedies she uses to alleviate her problems, such as elevating her bed upon cement blocks, and listed the prescription drugs she takes. Grant currently experiences breathlessness performing household chores and has difficulty breathing during her sleep.

Pulmonary function tests performed on Grant by Burlington in 1973 revealed "moderate airway obstruction." Between 1973 and 1981, these tests revealed a gradual decline in Grant's lung function. Dr Charles Williams, who saw Grant on 12 October 1981, testified that pulmonary function studies conducted by him showed a moderate obstructive impairment of ventilation. Grant was also seen on 20 April 1982 by Dr. Kuntsling, a pulmonary specialist, on referral from the Industrial Commission. He testified that Grant had chronic obstructive pulmonary disease, that the disease resulted in 25% to 35% respiratory impairment, and that it was permanent. Dr. Kunstling stated that Grant "would probably not be capable of performing jobs requiring hurrying, climbing, or heavy lifting, but should be capable of performing less strenuous jobs such as office work and other types of relative light work."

Also introduced into evidence was the deposition of Dr. Fred McQueen, a specialist in family practice medicine, who treated Grant throughout 1982. He testified that Grant suffered from chronic obstructive pulmonary disease, and also opined, over objection, that Grant was disabled for employment that required more than mild exertion. Dr. McQueen's testimony is discussed more fully below.

III

Grant's first argument is that reversible error was committed by the Commission in its evidentiary rulings on certain portions of the testimony of Dr. Fred McQueen.

Dr. McQueen's testimony was taken by deposition on 14 December 1982. In its opinion and award, twelve separate objections and motions to strike relating to Dr. McQueen's testimony were sustained or granted by the Deputy Commissioner. In its appeal to the Commission, Grant assigned error to ten of those rulings. The Commission, without explicit reference to these evidentiary rulings, adopted the stipulations, findings, and conclusions of the Deputy Commissioner. Insofar as the Commission did not alter the Deputy Commissioner's rulings, we deem them adopted or affirmed by the Commission. In the ten evidentiary rulings of the Deputy Commissioner excepted to by Grant, and in the failure of the Full Commission to correct them, Grant contends prejudicial error was committed. We agree.

The testimony of Dr. McQueen which was excluded by the Deputy Commissioner falls into two categories: evidence relating to causation of Grant's lung disease and evidence relating to the nature and extent of Grant's disability. The Commission found that Grant's occupational cotton dust exposure was a significant contributing factor to Grant's chronic obstructive lung disease. Grant concedes that causation is not at issue on this appeal. Any error in excluding Dr. McQueen's testimony on causation was plainly harmless.

The same is not true, however, for Dr. McQueen's testimony on the nature and extent of Grant's disability. Dr. McQueen saw Grant for a total of at least ten office visits between 7 January and 22 October 1982. It was Dr. McQueen who placed Grant on a one-month medical leave at her first office visit and advised her not to return to her work area. He also placed Grant on a six-month leave of absence on her next office visit, had her try various bronchodilators, and had a pulmonary function study performed. Dr. McQueen gave detailed testimony relating to Grant's physical condition throughout the time she was in his care. Nevertheless, a number of objections to his testimony were sustained by the Deputy Commissioner. For example, Dr. McQueen responded to a question that asked what his examination during a 25 February 1982 office visit consisted of and revealed, as follows:

I felt at that time that [the] patient was better. She was managing her activities of daily living, which is again improved from where she was initially, having shortness of breath at rest and later at mild exertion, and now she was able to take care of things around the house. I felt that her weight up--she was gaining a couple of pounds and the COPD [chronic obstructive pulmonary disease] was still there--and I advised her at that time that maybe she should apply for her Social Security. We talked and I felt that she did have a chronic disease and that she would be totally disabled.

Perhaps the most critical testimony excluded by the Deputy Commissioner came in response to a question posed by Grant's counsel as to whether, in Dr. McQueen's opinion, Grant suffered from a permanent impairment of her ability to engage in activities requiring physical exertion on a prolonged or sustained basis as a result of her lung disease. Dr. McQueen testified:

In my opinion, due to [the] patient's objective studies on pulmonary functions and due to follow-up with her and following her from time to time, I find that she does have moderate to severe restrictive and obstructive disease and that she is permanently and totally disabled for any type of gainful employment that would require anything beyond mild exertion.

We next turn to the applicable law. The determinative test for the admission of expert testimony is "whether the opinion expressed is really one based on the special expertise of the expert, that is, whether the witness because of his [or her] expertise is in a better position to have an opinion on the subject than is the trier of fact." State v. Wilkerson, 295 N.C. 559, 568-69, 247 S.E.2d 905, 911 (1978). Dr. McQueen testified that he is a physician specializing in family practice medicine and that in his practice he sees lots of chronic lung disease. Defendants argue that because Dr. McQueen is a family practitioner rather than a specialist in pulmonary diseases, as are Drs. Williams and Kuntsling, he was not qualified to render an opinion as a medical expert on the nature and extent of Grant's disability. A similar argument was rejected in Robinson v. J.P. Stevens & Co. Inc., 57 N.C.App. 619, 292 S.E.2d 144 (1982). In Robins...