Robinson v. J. P. Stevens and Co., Inc.

• Decision Date: 15 June 1982
• Docket Number: No. 8110IC760,8110IC760
• Citation: 292 S.E.2d 144,57 N.C. App. 619
• Court: North Carolina Court of Appeals
• Parties: Willie ROBINSON, Employee-Plaintiff, v. J. P. STEVENS AND COMPANY, INC., Employer, and Liberty Mutual Insurance Company, Carrier, Defendants.

Page 144

292 S.E.2d 144

57 N.C.App. 619

Willie ROBINSON, Employee-Plaintiff, v.J. P. STEVENS AND COMPANY, INC., Employer and Liberty Mutual Insurance Company, Carrier, Defendants.

No. 8110IC760.

Court of Appeals of North Carolina.

June 15, 1982.

Hassell & Hudson by Charles R. Hassell, Jr., Robin E. Hudson, and R. James Lore, Raleigh, for employee-plaintiff.

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

WHICHARD, Judge.

DEFENDANTS' APPEAL

Defendants assign error to the findings, conclusions, and award of the full Commission, contending that plaintiff failed to prove a sufficient causal connection between his byssinosis and cotton dust exposure, and that the record contains insufficient evidence of plaintiff's total and permanent disability.We disagree.

The findings of fact made by the Commission are conclusive on appeal if supported by competent evidence in the record.Walston v. Burlington Industries, 304 N.C. 670, 677, 285 S.E.2d 822, 827(1982);Morrison v. Burlington Industries, 304 N.C. 1, 6, 282 S.E.2d 458, 463(1981);Moore v. Piedmont Processing Co., --- N.C.App., ---, ---, 289 S.E.2d 573, 574(1982).The conclusions of the Commission will not be disturbed if justified by the findings of fact.Inscoe v. Industries, Inc., 292 N.C. 210, 216, 232 S.E.2d 449, 452(1977);Rutledge v. Tultex Corp., 56 N.C.App. 345, ---, 289 S.E.2d 72, 74(1982);Moore, supra, 56 N.C.App. at ---, 289 S.E.2d at 574.

The Commission found the following: "Plaintiff was exposed to respirable cotton dust" for a total of about twelve years while working at defendant-employer's cotton mill.Plaintiff contracted byssinosis, a disease in which the airways are obstructed "due to exposure to respirable cotton dust."No extrinsic factors contributed to plaintiff's airway obstruction.The Commission concluded that "plaintiff ha[d] contracted ... Byssinosis ... caused by exposure to cotton dust in his employment with defendant-employer."We hold these findings fully supported by the record, and that they fully support the conclusion that plaintiff's byssinosis was caused by exposure to cotton dust.

Defendants contend the medical testimony established at most that exposure to cotton dust was one factor in causing plaintiff's disease.They argue that the requirement that the disease be caused by exposure to cotton dust "is not met by establishing that the disease condition may have been contributed to by the exposure or that such exposure, in addition to other, non-compensable causes, may have been a factor in the disease condition."

Assuming, arguendo, that cotton dust was only one of multiple causal factors, "[d]isability ... resulting from a disease is compensable when ... the disease ... is aggravated or accelerated by causes and conditions characteristic of and peculiar to claimant's employment."Walston, supra, 304 N.C. 679-80, 285 S.E.2d at 828.If the disease is not disabling apart from the aggravation by occupational conditions, "the employer must compensate the employee for the entire resulting disability."Morrison, supra, 304 N.C. at 18, 282 S.E.2d at 470.The Commission specifically found that, although plaintiff had previously had nasal polyps, "no extrinsic factors ... contribute[d] to plaintiff's airway obstruction" and that, in any event, the polyps were not in themselves disabling.We find the causal connection between plaintiff's disease and his employment to have been sufficiently established, pursuant to the foregoing standards, to permit the Commission's conclusion of compensability.

Defendants further contend that certain medical testimony supporting causation was incompetent, in that hypotheticals posed to the medical experts did not include significant facts which would diminish the role of cotton dust as a cause of plaintiff's disease.Specifically, defendants argue that the hypotheticals failed to present plaintiff's testimony that (1)he wore a respirator for a year while working for defendant-employer, (2) synthetics were processed in some rooms he worked in, and (3)he had breathing problems before he was hired by defendant-employer.

We have examined the hypotheticals, and we find that they adequately reflect plaintiff's testimony on these points.Further, any failure to include in the hypotheticals all elements of plaintiff's testimony is not fatal.A hypothetical question need only present "sufficient facts to allow [the witness] to express an intelligent and safe opinion."Dean v. Coach Co., 287 N.C. 515, 521, 215 S.E.2d 89, 93(1975).See alsoState v. Dilliard, 223 N.C. 446, 448, 27 S.E.2d 85, 87(1943);Pigford v. R.R., 160 N.C. 93, 103, 75 S.E. 860, 863(1912)."It was not incumbent on the plaintiff to include in his [hypothetical] questions all the evidence bearing upon the fact to be proved; the defendants had the right to present other phases of the evidence in counter-hypothetical questions."Godfrey v. Power Co., 190 N.C. 24, 31, 128 S.E. 485, 490(1925);see alsoState v. Stewart, 156 N.C. 636, 640, 72 S.E. 193, 194(1911).The hypotheticals here contained "sufficient facts to allow [the witness] to express an intelligent and safe opinion."Dean, supra.Further, the record shows that defendants cross-examined the medical experts but did not pose any counter-hypotheticals which included those facts they believed significant regarding causation.We thus find no merit to this contention.

Defendants next contend there is insufficient evidence to support the Commission's findings that plaintiff"experiences chest pain and breathlessness with moderate exercise and exertion," has been "unable to work at gainful employment and has not been employed since May 30, 1979," and is "totally and permanently disabled as a result of Byssinosis."They argue that the finding that plaintiff cannot "perform ordinary activity consistent with ordinary employment" indicates the Commission applied the wrong criteria to determine disability.

G.S. 97-2(9)(Supp.1981) defines "disability" as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment."The test for disability is whether and to what extent earning capacity is impaired, not the fact or extent of physical impairment.Priddy v. Cab Co., 9 N.C.App. 291, 297, 176 S.E.2d 26, 30(1970)."If [plaintiff] is unable to work and earn any wages, [he] is totally disabled....If [he] is able to work and earn some wages, but less than [he] was receiving at the time of [his] injury, [he] is partially disabled."Little v. Food Service, 295 N.C. 527, 533, 246 S.E.2d 743, 747(1978).We hold that the Commission's findings are supported by competent evidence and are sufficient to support a conclusion of total and permanent disability under the applicable standard.

Finally, defendants assign error to a number of evidentiary rulings during the testimony of plaintiff's family physician.They argue that the hearing commissioner abused her discretion in allowing this witness, who was not a specialist, to give an expert opinion regarding the cause of plaintiff's disability.

"[W]hether none but a specialist can testify as an expert, is not a matter of judicial discretion the exercise of which by the trial court is final; it is a question of law which is subject to review by the appellate tribunal."Pridgen v. Gibson, 194 N.C. 289, 291, 139 S.E. 443, 445(1927).A medical witness need not, as a matter of law, be a specialist in a particular subject to give an opinion on it.Seawell v. Brame, 258 N.C. 666, 129 S.E.2d 283(1963);Pridgen, supra, 194 N.C. at 291-92, 139 S.E. at 445.The witness here was properly accepted "as an expert witness in general practice with experience in treating people with respiratory complaints."It thus was not error to allow him to give his opinions regarding causation and disability in response to properly framed hypothetical questions.

Defendants' further argument that this witness improperly invaded the province of the fact finder in giving an opinion on the ultimate issue of whether plaintiff was disabled is without merit.Direct examination of this witness solicited an opinion on whether plaintiff was "unable to engage in labor requiring exertion," that is, whether he was physically disabled.It did not solicit an opinion on the ultimate issue of whether and to what extent plaintiff's earning capacity was impaired.Priddy, supra.

Defendants' final evidentiary argument is that they were denied their right to cross-examine plaintiff's family physician, because the hearing commissioner first excluded a hypothetical regarding causation and later reversed her ruling and admitted the testimony subsequent to the hearing.Assuming, arguendo, that the previously excluded evidence was improperly admitted due to lack of opportunity for cross-examination, the admission was not reversible error, because the findings of the Commission on disability and causation are supported by competent evidence introduced through two other medical experts.Findings supported by competent evidence are binding on appeal, even though incompetent evidence was also admitted.See, e.g., Blalock v. Durham, 244 N.C. 208, 92 S.E.2d 758(1956).

PLAINTIFF'S APPEAL

Plaintiff assigns error to the Commission's failure to award medical expenses pursuant to G.S. 97-29.The Commission's award reads, in pertinent part, as follows: "Defendants shall pay all costs of reasonable medical and/or other treatment necessitated by plaintiff's occupational disease so long as such treatment will tend to lessen the period of disability or provide needed relief ...."(Emphasis supplied.)

The Commission did not state the statutory basis for its award of medical expenses.Both G.S. 97-25andG.S. 97-59, as in effect at the time of the injury, appear to support the award, because they allow payments only so long as treatment will "tend to lessen the period of...