Harrell v. JP Stevens & Co., Inc.

284 S.E.2d 343 (1981)

Lillian S. HARRELL, Executrix of the Estate of Louis F. Harrell, Deceased, Employee, Plaintiff; v. J. P. STEVENS & COMPANY, INC., Employer, and Liberty Mutual Insurance Company, Carrier, Defendants.

No. 8110IC254.

Court of Appeals of North Carolina.

November 17, 1981.

*345 Hassell & Hudson by Charles R. Hassell, Jr., Raleigh, for plaintiff.

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

VAUGHN, Judge.

Plaintiff's appeal challenges the sufficiency of evidence to support a denial of his claim to compensation. We hold there is sufficient evidence to support the Commission's order.

We note at the outset that provisions of North Carolina's Administrative Procedure Act do not govern awards of the Industrial Commission. G.S. 150A-1(a). The applicable scope of review is found in G.S. 97-86: "[A]n award of the Commission ... shall be conclusive and binding as to all questions of fact; but either party to the dispute may... appeal from the decision of said Commission to the Court of Appeals for errors of law...."

Our responsibility is twofold. We must first determine whether the Commission's findings are supported by any competent evidence. We must then determine whether the legal conclusions are justified by those findings. Buck v. Proctor & Gamble Co., 52 N.C.App. 88, 278 S.E.2d 268 (1981).

On review, we are not triers of fact. The Industrial Commission has the exclusive duty and authority to find facts related to the disputed claim. Such findings are conclusive on appeal when supported by any competent evidence, even where there is plenary evidence which would permit a contrary finding. Morrison v. Burlington Industries, 301 N.C. 226, 271 S.E.2d 364 (1980); Buck v. Proctor & Gamble Co., supra.

In the present cause, plaintiff excepts to Findings of Fact Nos. 3, 6, 9, 15, 16 and 17. In all material respects, however, we find that all of them can be grounded in the degree credence the Deputy Commissioner elected to give the evidence presented.

The ultimate findings of fact appear to be Nos. 9, 16 and 17 which address the *346 critical issue of disability in 1976. Finding No. 9 is that decedent's disabling condition, as of 12 August 1976, was a result of his heart. We find competent medical evidence to support such a finding. Dr. Robert E. Whalen, Director of the Cardiovascular Disease Service at Duke Hospital, diagnosed plaintiff as having Class III Angina from February 1975 to July 1976. A Class III Angina patient is somewhat limited in activity by pain. Beginning in July 1976 and through November 1976, plaintiff had Class IV Angina. Class IV indicates that plaintiff was generally incapacitated by pain. In a letter dated 19 August 1976, Dr. Topolosky, a pulmonary medicine specialist, stated that plaintiff's main problem was his cardiovascular disease: "His COPD [chronic obstructive pulmonary disease] is a contributing factor, but he would have to be declared a functional Class III cardiac patient." On a report sent to the Social Security Administration, Dr. Topolosky declared plaintiff disabled due to his cardiac status.

We also find sufficient medical evidence to support Finding No. 16 that plaintiff's total disability arose from a heart condition. In December of 1976, Dr. Maddrey turned over plaintiff's treatment to Dr. Brown. Dr. Brown testified that in January 1977, he diagnosed plaintiff's shortness of breath and chest pains as symptoms of his heart disease. He further stated, "Mr. Harrell has had a heart condition with angina since 1969. The first heart attack ... would have been when he was at Durham a year ago. In my opinion, Mr. Harrell is disabled certainly because of a heart disease as a primary reason." Dr. Topolosky examined plaintiff on 4 November 1976. In his opinion, plaintiff's main problem was his cardiovascular disease. Dr. Whalen, after reviewing a 12 November 1976 evaluation report and other test results, concluded that plaintiff's heart condition rendered him 100% disabled.

Plaintiff concedes the existence of a disabling nonoccupational heart condition. He notes, however, that every doctor who testified also diagnosed the presence of chronic obstructive pulmonary disease. He argues that if he suffers from a compensable injury, he should not be completely deprived of compensation merely because there also exists an independent, concurrent, noncompensable cause of disability. Daugherty v. Watts, Ky., 419 S.W.2d 137 (1967). A recent decision by the Supreme Court addresses plaintiff's argument:

"When a pre-existing, nondisabling, non-job-related condition is aggravated or accelerated by an accidental injury arising out of and in the course of employment or by an occupational disease so that disability results, then the employer must compensate the employee for the entire resulting disability even though it would not have disabled a normal person to that extent. On the other hand, when a pre-existing, nondisabling, non-job-related disease or infirmity eventually causes an incapacity for work without any aggravation or acceleration of it by a compensable accident or by an occupational disease, the resulting incapacity so caused is not compensable...." (Emphasis added).

Morrison v. Burlington Industries, 301 N.C. 723, 276 S.E.2d 288 (1981). In this cause, there is evidence that plaintiff's noncompensable heart disease in itself and absent any occupational disease, was sufficient to cause total incapacity for work. Where a noncompensable injury causes 100% disability without any aggravation or contribution by a compensable injury, the Commission is justified in finding that the claimant has failed to prove disability resulting from an occupational disease.

Plaintiff argues that the Commission failed to follow the mandate of the Court of Appeals in Harrell to "consider all the evidence, make definitive findings and proper conclusions therefrom, and enter the appropriate order." This cause was originally remanded because the Deputy Commissioner totally discounted testimony by Dr. Kunstling, a pulmonary medicine specialist, which was favorable to plaintiff. Finding of Fact No. 15, however, indicates that on remand the deputy did consider his testimony. In choosing to give Dr. Kunstling's diagnosis little weight, she exercised *347 her prerogative to believe all or part or none of the evidence presented. As this Court stated, "[c]ontradictions in the evidence go to its weight, and the Commission may consider any such inconsistencies in weighing the testimony of Dr. Kunstling and, equally, in weighing the testimony of the other experts." Harrell v. Stevens & Co., 45 N.C.App. at 206, 262 S.E.2d at 835.

Plaintiff contends the Commission erred in denying his motion to rescind the 3 June 1980 opinion and award and to take new evidence. According to G.S. 97-85, it is within the Commission's discretion whether to receive further evidene. The opinion and award of the Full Commission, filed on 29 September 1980, states: "It is the opinion of the undersigned that counsel for plaintiff has brought to the Industrial Commission neither argument nor evidence that justifies granting plaintiff the relief sought." In the absence of a showing of abuse of discretion, we will not review the Commission's decision. Lynch v. Construction Co., 41 N.C.App. 127, 254 S.E.2d 236 (1979).

We further conclude that on remand the Commission did make definitive findings on the critical issues. Mere recitals of medical opinion are not sufficiently specific to enable a reviewing court to judge the propriety of the Commission's order, and therefore cannot properly form the basis for the conclusion of law as to compensation. Moore v. Stevens & Co., 47 N.C.App. 744, 269 S.E.2d 159 (1980); Gaines v. Swain & Son, Inc., 33 N.C.App. 575, 235 S.E.2d 856 (1977). As we have previously indicated, on remand, the Deputy Commissioner made essentially the same findings of fact as in the earlier opinion. Findings Nos. 3-14 are largely a narration of testimony given by medical experts. The additional findings, however, are more than mere recitals of opinions of the medical experts. The Deputy Commissioner made definite findings as to the nature of plaintiff's disabling disease.

In summary, the employee's entitlement to compensation is not grounded in disability. The employee must carry the burden of convincing the trier of the facts that his disability was caused by a compensable injury or disease. It is not disputed that the employee suffered physical impairment from an obstructive pulmonary disease. The Commission found, however, that his disabilityhis lack of ability to continue as a member of the work forcewas caused by his heart disease. That finding finds support in the record. We cannot reverse just because there is evidence in the record that might have persuaded us, if we were triers of the facts, to reach a contrary result. The award is

Affirmed.

HILL and WHICHARD, JJ., concur.