Harrell v. Harriet & Henderson Yarns

• Decision Date: 05 November 1985
• Docket Number: No. 198PA83,198PA83
• Citation: 314 N.C. 566,336 S.E.2d 47
• Court: North Carolina Supreme Court
• Parties: Clarence R. HARRELL, 1 Executor of the Estate of Annie Mae Harrell, Employee, Plaintiff, v. HARRIET & HENDERSON YARNS, Employer, and Liberty Mutual Insurance Company, Carrier, Defendants.

Page 47

336 S.E.2d 47

314 N.C. 566

Clarence R. HARRELL, ¹ Executor of the Estate of Annie Mae Harrell, Employee, Plaintiff, v. HARRIET & HENDERSON YARNS, Employer and Liberty Mutual Insurance Company, Carrier, Defendants.

No. 198PA83.

Supreme Court of North Carolina.

Nov. 5, 1985.

Hassell & Hudson by Robin E. Hudson, Raleigh, for plaintiff-appellant.

Maupin, Taylor & Ellis, P.A. by Richard M. Lewis and David V. Brooks, Raleigh, for defendant-appellees.

EXUM, Justice.

This is a lung disease case in which the Industrial Commission awarded plaintiff $4,000 in benefits for "permanent and irreversible loss of lung function" pursuant to N.C.Gen.Stat. § 97-31(24) (1979). Both plaintiff and defendants appealed to the Court of Appeals. Plaintiff contended that the Commission erred in not making an award for incapacity to earn wages due to lung disease. Defendants contended that the Commission erred in making any award because N.C.Gen.Stat. § 97-31(24) has no application to occupational disease cases unless plaintiff suffers death or disablement as a result of such disease. The Court of Appeals agreed with defendants and reversed the Commission. It concluded that while the Commission's findings were conflicting on whether plaintiff suffered any incapacity to earn wages as a result of an occupational disease, the evidence before the Commission would not have supported a finding that she did. It also concluded that N.C.Gen.Stat. § 97-31(24) had no application to occupational disease cases. The questions presented are: (1) Whether there is enough evidence in the record to support a finding by the Industrial Commission that some part of plaintiff's disability resulted from occupational disease and (2) whether N.C.Gen.Stat. § 97-31(24) has any application to occupational diseases.

I.

Evidence before the Commission consisted essentially of the testimony of Annie Mae Harrell, plaintiff-employee, and several physicians who treated or examined her. According to her testimony, Annie Mae Harrell was born 16 January 1925 in Johnston County and finished the eighth grade in school. She began working in the textile industry in 1943. She went to work in 1959 in defendant's North Henderson Mill in the weave room where she "filled batteries, weaved, smashed, cleaned up, trained battery fillers" and helped "blow off the top of the weave room and the looms." In 1962 she began to work in the winding room at the North Henderson Mill and worked until she quit work in June 1969. She testified:

I first had breathing problems when I ... worked in the weave room at [the North Henderson Mill]. I first remember when we were blowing off, we really were coughing and sucking in lint, a whole lot of lint. That would make me have a breathing problem. That was probably about 1960 I guess. I had breathing problems off and on the whole time at that time or after that time....

Annie Mae Harrell quit work in order to look after her son who was ill, her husband having moved away and taken another job. She testified further:

Since I have stopped working in the mill, the activities I have been able to do on a daily basis are I did my housework as long as I could. Since 1977 I haven't done very much housework ... There are other kinds of activities besides my housework that I sure can't do any more. I knit.... I could get out and work in the garden and work in the yard and all. I can't do it no more. Since 1977 I haven't done anything.

Dr. Ted R. Kunstling, a physician specializing in pulmonary diseases, testified he first saw Mrs. Harrell on 5 October 1979. He took a history, conducted a physical examination, made laboratory studies and examined test results available to him from other medical sources. He felt her medical history "indicates that she was unable to perform even light housework" and "is not capable of working in the mill." Mrs. Harrell has no work experience except in the cotton mill industry, and her incapacity to earn wages is not controverted.

Dr. Kunstling's studies indicated "an amount of irreversible pulmonary impairment that was present at the time of examination." He attributed this impairment to a number of different lung diseases. X-rays revealed markings on the lung "consistent with pulmonary fibrosis.... Pulmonary fibrosis is a process of scarring which occurs in the lungs." Although "[i]t has a variety of causes," he testified "it cannot be the end results of long term exposure to cotton dust. I do not think the results of scars is from exposure to cotton dust."

In response to a hypothetical question, Dr. Kunstling testified further as follows:

Based upon these facts and upon your examination of the plaintiff and your testing, do you have an opinion satisfactory to yourself based upon a reasonable medical certainty as to whether or not her exposure to cotton dust in her employment could or might be a cause of her lung disease?

A: Yes, I do.

Q: What is that opinion?

A: I feel that there is an element of pulmonary impairment present which could have been contributed to by her cotton dust exposure.

Dr. Kunstling also testified:

I concluded that there were other factors in her history besides exposure to cotton dust that could have caused her problem. I feel like she has a pulmonary condition with pulmonary fibrosis and restrictive impairment which is co-existing with the amount of airway obstructive disease which is present. And that this is probably contributing to her pulmonary impairment to a certain extent. The etiology or the cause of this fibrosis is not known. And I can only state that fibrosis is a type of response which can't be correlated with her occupation. I believe there is some other causes for this. It is not uncommon for this type of disease to be present without there being a diminishable cause. In addition, she had others present: hypertension, and chronic rhinitis, and sinusitis.

"[A]ssessing the relative contribution of restrictive and obstructive diseases" to Mrs. Harrell's lung condition was "somewhat speculative" in Dr. Kunstling's judgment.

On cross-examination Dr. Kunstling testified "the vast majority of Mrs. Harrell's lung disease is restrictive in nature" but "she does have evidence of airway obstruction, and I believe this may be related to her cotton dust exposure and hence could be termed 'byssinosis.' " Dr. Kunstling testified that Mrs. Harrell's "airway obstruction is something that may have been present from the time of her retirement from work to the present time" but that "the intervening process that has occurred has contributed significantly to her pulmonary impairment."

On redirect examination Dr. Kunstling testified, "Mrs. Harrell's obstructive lung disease may well have been caused by her exposure to cotton dust. I would say that she probably has obstructive impairment caused by cotton dust exposure."

With this evidence before it, the Commission, adopting the findings and conclusions of the Hearing Commissioner, made findings and conclusions as follows (paraphrased except where quoted): ³

....

3. Mrs. Harrell began to work at defendant's mill in Henderson in October 1959 where she was employed in the weave room. Her duties involved "filling batteries, weaving, smashing and cleanup activities" including blowing off the equipment by use of a compressed air hose. This mill processed cotton during Mrs. Harrell's employment. Dust accumulated to the extent that the looms were blown off two to three times weekly. At times Mrs. Harrell was required to be under cloth covering the looms while the looms were being blown off. Occasionally she would assist in the blow off operations "on an all-day basis."

....

8. Dr. Ted Kunstling, a pulmonary expert and member of the Industrial Commission's Textile Occupational Disease Panel, saw Mrs. Harrell on 5 October 1979. He diagnosed her "as having pulmonary fibrosis (chronic restrictive lung disease) with moderate restrictive impairment as well as chronic obstructive lung disease with mild obstructive impairment. In Dr. Kunstling's opinion both conditions resulted "in permanent and irreversible pulmonary impairment in the range of 40 to 50 percent impairment of lung function" but he attributed the major element thereof to the fibrosis. Dr. Kunstling felt that Mrs. Harrell "is currently disabled from performing work with the exception of light work ... and then only in a clean environment." In Dr. Kunstling's opinion Mrs. Harrell's "mild chronic obstructive lung disease, which he attributes to her occupational exposure to cotton dust, would not be significantly disabling in the absence of claimant's intervening pulmonary fibrosis which disease in his opinion is definitely not causally related to claimant's occupational exposure but rather is of unknown origin."

9. "As a result of her exposure to respirable cotton dust while employed within the weave and winding rooms of defendant-employer's textile mill claimant has contracted chronic obstructive lung disease (byssinosis) with evidence of permanent and irreversible airway obstruction. Plaintiff has contracted an occupational disease."

10. "Although at the time of her retirement claimant retained permanent and irreversible pulmonary impairment as a result of her occupational obstructive lung disease, she was not disabled (from work) as a result of this or any other physical condition until the year 1977, at which time she became disabled (from work) as a result of and following contracting non-occupational pulmonary fibrosis. The significant aspect of claimant's current pulmonary disability is as a result of her restrictive lung disease (pulmonary fibrosis) which arose independently of and following her voluntary retirement from the defendants' employ in 1969."

11. "At the time of her retirement and as a result of the aforenamed occupational disease, claimant has a permanent disability in that she has permanent injury to two important internal organs; to wit: her lungs, in the...