Harrell v. J. P. Stevens & Co., Inc.

• Decision Date: 19 February 1980
• Docket Number: No. 7910IC539,7910IC539
• Citation: 262 S.E.2d 830,45 N.C.App. 197
• Court: North Carolina Court of Appeals
• Parties: Lillian S. HARRELL, Executrix of the Estate of Louis F. Harrell, Deceased Employee, Plaintiff, v. J. P. STEVENS & CO., INC., Employer, Liberty Mutual Insurance Company, Carrier, Defendants.

Page 830

262 S.E.2d 830

45 N.C.App. 197

Lillian S. HARRELL, Executrix of the Estate of Louis F.

Harrell, Deceased Employee, Plaintiff, v. J. P. STEVENS & CO., INC., Employer, Liberty Mutual

Insurance Company, Carrier, Defendants.

No. 7910IC539.

Court of Appeals of North Carolina.

Feb. 19, 1980.

Davis, Hassell & Hudson, by Charles R. Hassell, Jr., Raleigh, for plaintiff-appellant.

Maupin, Taylor & Ellis, by Richard C. Titus and Richard M. Lewis, Raleigh, for defendants-appellees.

HEDRICK, Judge.

The duties of the Industrial Commission, when deciding a claim under G.S. § 97-53(13), have been recently enunciated by our Supreme Court in Wood v. J. P. Stevens & Co., 297 N.C. 636, 256 S.E.2d 692 (1979). Speaking through Chief Justice Sharp, the Court said:

Whether a given illness falls within the general difinition (sic) set out in G.S. 97-53(13) presents a mixed question of fact and law. The Commission must determine first the nature of the disease from which the plaintiff is suffering that is, its characteristics, symptoms and manifestations. Ordinarily, such findings will be based on expert medical testimony. Having made appropriate findings of fact, the next question the Commission must answer is whether or not the illness plaintiff has contracted falls within the definition set out in the statute. This latter judgment requires a conclusion of law.

Id. at 640, 256 S.E.2d at 695-96.

In the present case the Commission made the following findings:

FINDINGS OF FACT

1. Plaintiff . . . has worked in a textile mill all his working life, mostly in the card room. His several jobs required him to be in a work atmosphere that was heavy with both cotton dust and lint.

2. Plaintiff has smoked cigarettes since he was a young boy although he never smoked as much as a pack a day. Although plaintiff claims to have stopped smoking 10 years ago, from credible evidence it is found that plaintiff smoked regularly until at least September, 1975 and has smoked cigarettes occasionally since then.

3. Plaintiff began seeing Dr. M. C. Maddrey, a general practitioner in Roanoke Rapids, in September, 1969. He was diagnosed as suffering from hypertension for which he was given medication and obesity for which he was advised to lose weight.

In November, 1969, plaintiff began to complain of chest pains to Dr. Maddrey and plaintiff was hospitalized. Dr. Brown, an internist in Roanoke Rapids was asked by Dr. Maddrey to consult on plaintiff's case regarding the chest pain. Dr. Brown also noted plaintiff's obesity. Plaintiff was not complaining of shortness of breath.

4. In March, 1970, Dr. Brown hospitalized plaintiff for chest pain and in June referred plaintiff to Duke for an evaluation of the suspected heart problem.

5. Plaintiff was admitted to Duke University Medical Center under the care of Dr. Whalen, a specialist in cardiovascular medicine, from June 14th to June 20th, 1970. After extensive tests, the diagnosis was: (1) arteriosclerotic heart disease with angina pectoris and (2) obesity. Dr. Whalen did not recommend heart surgery at that time, but suggested medication.

Plaintiff was examined routinely and often by Dr. Maddrey or Dr. Brown for the chest pains and the heart medication was continued by them.

6. In September 1972, plaintiff complained to Dr. Brown of a cough. Dr. Brown's impression was that plaintiff had an acute respiratory infection. The condition responded to treatment and in December, 1972, the condition had cleared.

From that time until 1974, plaintiff would have flare-ups of acute bronchitis treated by Dr. Brown.

7. In February, 1975, plaintiff was hospitalized by Dr. Maddrey for asthmatic bronchitis.

In September, 1975, Dr. Maddrey again hospitalized plaintiff with the following diagnoses: (1) traumatic arthritis of the right knee; (2) asthmatis (sic) bronchitis; (3) obesity. Dr. Maddrey again recommended plaintiff lose weight both to ease the weight on the knee and to help his breathing.

8. Plaintiff was again seen by Dr. Whalen on September 30, 1975 for a routine check. He indicated he was still having chest pain.

9. On July 26 and again on August 12, 1976, plaintiff was examined by Dr. M. K. Topolosky, a pulmonary medicine specialist at Duke University Medical Center. Plaintiff's complaints were shortness of breath and chest pains and he gave Dr. Topolosky a history indicating that he had these problems both in and out of the work environment. Dr. Topolosky was of the opinion that plaintiff had moderate to severe chronic obstructive pulmonary disease, but that his major disabling factor was his heart.

10. Plaintiff had "retired" from defendant-employer on June 28, 1976. He had requested less strenuous work because of his heart condition, but that had been refused.

11. In November, 1976, plaintiff was hospitalized for his heart condition. Dr. Whalen saw him during November for a routine re-check and concurred that plaintiff was totally disabled as a result of his heart since plaintiff was having chest pains at rest as well as with exertion.

12. In January, 1977, plaintiff went to Dr. Brown complaining of chest pain and shortness of breath. Dr. Brown was of the opinion this was related to plaintiff's heart disease.

13. Plaintiff was in Duke University Medical Center from February 4th to February 13th, 1977. On his way to see Dr. Sieker within the hospital, he suffered a heart attack. The discharge diagnoses were multiple and included: (1) arteriosclerotic cardiovascular disease and the myocardial infarction secondary thereto; (2) chronic obstructive pulmonary disease, probably secondary to byssinosis (plaintiff had given a history of the Monday morning syndrome which is characteristic of byssinosis); (3) obesity and other problems.

14. Dr. Brown examined plaintiff on February 21, 1977 and continued treatment for angina and shortness of breath because of congestive heart failure.

15. Plaintiff saw Dr. Kunstling of Raleigh on the order of the Industrial Commission on June 30, 1977. The history plaintiff gave Dr. Kunstling on which he based his diagnosis of byssinosis is wholly in conflict...