Rutledge v. Tultex Corp./Kings Yarn

• Decision Date: 05 April 1983
• Docket Number: No. 415PA82,415PA82
• Parties: Margaret RUTLEDGE, Employee, Plaintiff, v. TULTEX CORP./KINGS YARN, Employer, and Liberty Mutual Insurance Company, Carrier, Defendants.
• Court: North Carolina Supreme Court

Page 359

301 S.E.2d 359

308 N.C. 85

Margaret RUTLEDGE, Employee, Plaintiff, v. TULTEX CORP./KINGS YARN, Employer, and Liberty Mutual

Insurance Company, Carrier, Defendants.

No. 415PA82.

Supreme Court of North Carolina.

April 5, 1983.

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

Mason, Williamson, Etheridge & Moser, P.A. by James W. Mason and Terry R. Garner, Laurinburg, for defendants-appellees.

EXUM, Justice.

The questions for decision are whether the Industrial Commission applied the wrong legal standard in its order denying benefits to claimant and whether there is evidence from which the Commission could have made findings, using the correct legal standard, that would support a conclusion that claimant contracted an occupational disease. We answer both questions affirmatively.

After hearing evidence for claimant and defendants, Deputy Commissioner Denson concluded that claimant had not contracted an occupational disease. This conclusion was based in part on the following factual findings, which are summarized unless quoted, to which no exception has been taken: Plaintiff, born 8 August 1935, has a tenth grade education and now lives in Georgia. She has smoked cigarettes from about age fifteen until February 1979 at the rate of approximately one pack per day. She has worked for four textile mills: (1) United Merchants in Buffalo, South Carolina, from 1953 until 1971 as a weaver; (2) All the plants where plaintiff worked "had a lot of cotton dust and lint" but defendant's premises, both in the weaving and spinning areas, were "relatively clean." Defendant's mill processed essentially 50 percent cotton blend materials and occasionally blends made of even a smaller percentage of cotton. "Although there was respirable cotton dust in [defendant's] weave room, there was much less than ... in other premises." Plaintiff began developing a cough at work in 1969 or 1970. "[H]er cough was associated with her presence at work. Her shortness of breath became severe in December of 1976 and she has had various bouts with it since that time having to be out of work.... Plaintiff suffers from chronic obstructive pulmonary disease [with elements] of pulmonary emphysema and chronic bronchitis.... Plaintiff is disabled, because of her pulmonary impairment from all but sedentary ... work which must be in a clean environment because of her reaction to cotton dust and other such irritants."

Milliken at Union, South Carolina, from 1971 to 1973 as a "dry cleaner"; (3) Aleo Manufacturing, Rockingham, North Carolina, from 1975 to 1976 as a weaver; and (4) for defendant from 25 October 1976 until 12 January 1979 as a winder and then as a spinner. She was absent "for bronchitis" from 28 January 1977 until 13 May 1977. She "retired" on 12 January 1979.

Deputy Commissioner Denson also made certain findings to which claimant excepted. The first was that in 1971 claimant "began developing a shortness of breath." Second was the following which the Deputy Commissioner included in the findings of fact:

6. ... Cigarette smoking and recurrent infection have played prominent roles in the pulmonary impairment. Cotton dust may aggravate it, but since plaintiff was showing her symptomatology in problems prior to her employment with defendant employer, exposure at defendant employer has neither caused nor significantly contributed to plaintiff's chronic obstructive pulmonary disease.

....

8. Plaintiff has not contracted chronic obstructive lung disease as a result of any exposure while working with defendant employer. [Emphasis added.]

The Full Commission, with one commissioner dissenting, adopted Deputy Commissioner Denson's findings, conclusions, opinion and award as its own.

The Court of Appeals concluded that although the Commission erred "in requiring plaintiff to prove that her last employment was the cause of her occupational disease," the error was harmless since there was insufficient evidence before the Commission to show that plaintiff had ever contracted an occupational disease during her working life. Rutledge v. Tultex Corp./ Kings Yarn, 56 N.C.App. 345, 350, 289 S.E.2d 72, 74 (1982).

Because of the italicized portions of findings 6 and 8, it does appear that the Commission thought that in order successfully to claim against defendant, claimant's last employer, claimant must establish that her exposure there either caused or significantly contributed to her chronic obstructive pulmonary disease. This is not the law. That part of G.S. 97-57 pertinent to this case provides:

In any case where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease, and the insurance carrier, if any, which was on the risk when the employee was so last exposed under such employer, shall be liable.

Under this statute, consequently, it is not necessary that claimant show that the conditions of her employment with defendant caused or significantly contributed to her occupational disease. She need only show: (1) that she has a compensable occupational disease and (2) that she was "last injuriously exposed to the hazards of such disease" in defendant's employment. The statutory terms "last injuriously exposed" mean"an exposure which proximately augmented the disease to any extent, however slight." Haynes v. Feldspar Producing Company Haynes was a silicosis case. The evidence showed that claimant worked in North Carolina feldspar mines for about twenty-eight years. From 1927 to 1940 he worked for Tennessee Mineral Corporation where he was constantly exposed to "silica dust." He then worked for defendant producing company from 24 September 1940 until 24 January 1941 where he was also exposed to dust from feldspar and flint. On 21 January 1941 Dr. T.F. Vestal diagnosed plaintiff as having "moderately advanced silicosis with probable infection [which] may be of a tuberculous nature." Plaintiff worked no more after 24 January 1941. Further evidence at the hearing was that samples taken at defendant's mine showed sufficient concentrations of dust "to constitute a silicosis hazard." Dr. Vestal testified that he had examined plaintiff in 1936, 1937, 1938 and 1940. By 1937 plaintiff "had early silicosis" and by 28 November 1940 plaintiff "had moderately advanced silicosis with probable infection." Dr. Vestal also testified that plaintiff was "disabled to perform normal labor as a mucker." Dr. Vestal could not state whether plaintiff's silicosis advanced any at all between the time that he entered the defendant's employment and the time that he left it. He was asked whether plaintiff was "last injuriously exposed" to the hazards of silicosis within the meaning of the predecessor to G.S. 97-57. He was told by the Commission that the phrase "last injuriously exposed" as used in the statute "meant an exposure which proximately augmented the disease to any extent, however slight." Id. at 166, 22 S.E.2d at 277. The doctor then replied, to a hypothetical question, "You haven't left me much leeway. I have an opinion that it did constitute an injurious exposure." Id. at 167, 22 S.E.2d at 277. The Industrial Commission gave an award against defendant.

222 N.C. 163, 166, 169, 22 S.E.2d 275, 277, 278 (1942).

On defendant's appeal it contended there was no evidence to support the Commission's finding that claimant was injuriously exposed to the hazards of the disease during his short employment with defendant. This Court affirmed the Commission. The Court held that "the definition [of last injuriously exposed] supplied by the Commission was substantially correct." Id. at 169, 22 S.E.2d at 278. The Court said, id. at 170, 22 S.E.2d at 279:

Perhaps on a comparative basis, the chief responsibility for plaintiff's condition morally rests upon his Tennessee employers; but not the legal liability. It must have been fully understood by those who wrote the law fixing the responsibility on the employer in whose service the last injurious exposure took place, that situations like this must inevitably arise, but the law makes no provision for a partnership in responsibility, has nothing to say as to the length of the later employment or the degree of injury which the deleterious exposure must inflict to merit compensation. It takes the breakdown practically where it occurs--with the last injurious exposure.

The Court of Appeals correctly concluded, therefore, that the Industrial Commission applied the wrong legal standards to this claim.

We hold that the Court of Appeals erred, however, in concluding that there is no evidence that plaintiff had contracted an occupational disease. We think there is evidence from which the Industrial Commission could have made findings which in turn would have supported a conclusion that claimant's chronic obstructive lung disease was an occupational disease. Dr. Williams, after a lengthy recitation of certain assumed facts, was asked the following question:

Now, based upon these facts and upon your examination and testing of Ms. Rutledge, do you have an opinion satisfactory to yourself to a reasonable medical certainty as to whether Ms. Rutledge's exposure to cotton dust for in excess of 25 years in her employment was probably a cause of her chronic obstructive lung disease which you diagnosed in your report?

When he replied, "Yes," the following colloquy occurred:

Q. What is that opinion?

A. Yes. That it probably was a cause.

Based upon the same facts and upon my examination and testing of Mrs. Rutledge, I have an opinion as to whether her impairment with respect to her ability to perform labor is related to her pulmonary disease. That opinion is that it is.

In putting the hypothetical question to Dr. Williams, claimant's counsel made no reference in the assumed facts to claimant's having smoked cigarettes regularly for most of her life. Defendant argues that because of this omission we...