Rutledge v. Tultex Corp.

289 S.E.2d 72 (1982)

Margaret RUTLEDGE, Employee, Plaintiff, v. TULTEX CORP./Kings Yarn, Employer and Liberty Mutual Insurance Company, Carrier, Defendants.

No. 8110IC547.

Court of Appeals of North Carolina.

March 16, 1982.

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

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

CLARK, Judge.

Under the provisions of G.S. 97-86, the Industrial Commission is the fact-finding body and as such its findings of fact are conclusive on appeal if supported by competent evidence. Therefore, the scope of our review is limited to two questions of law: "(1) Whether or not there was any competent evidence before the Commission to support its findings of fact; and (2) whether or not the findings of fact of the Commission justify its legal conclusions and decision." Inscoe v. Industries, Inc., 292 N.C. 210, 216, 232 S.E.2d 449, 452 (1977).

In the present case, plaintiff excepts to Findings of Fact Nos. 6 and 8, which state that exposure to cotton dust at defendant-employer's plant did not cause or significantly contribute to plaintiff's pulmonary disease. The medical evidence presented tends to show that plaintiff suffers from pulmonary emphysema and chronic bronchitis, most likely caused by cigarette smoking and recurrent infection. Dr. Williams stated that plaintiff's exposure to cotton dust was "probably" a cause of her pulmonary disease, adding that she did not have a classical history of byssinosis. It was Dr. Williams' opinion that plaintiff's condition was caused by circumstances which existed prior to her employment by defendant-employer and that the effect of working conditions at the plant upon her health was minimal. Dr. Williams also stated that while removal of plaintiff from the mill environment might improve her coughing, it would not have any significant effect on the underlying chronic obstructive pulmonary disease. We therefore find sufficient medical evidence to support Findings of Fact Nos. 6 and 8.

We agree, however, with plaintiff that the Commission erred in requiring plaintiff to prove that her last employment was the cause of her occupational disease. G.S. 97-57 assesses liability to the employer in whose employment the employee was last injuriously exposed, however minimal the exposure, to the hazards of the occupational disease. The evidence presented showed some aggravation of plaintiff's respiratory problems by her exposure to the working conditions at defendant-employer's mill. We find this error harmless as a matter of law, however, since we agree with the Commission's conclusion that plaintiff has not contracted an occupational disease and is therefore not entitled to Workers' Compensation benefits.

*75 In order to be compensable under the Workers' Compensation Act an injury or death must result from an accident arising out of and in the course of employment or an occupational disease. Booker v. Medical Center, 297 N.C. 458, 256 S.E.2d 189 (1979). The issue presented here, of course, is whether plaintiff has an occupational disease. The three elements necessary to prove the existence of a compensable occupational disease are: "(1) the disease must be characteristic of a trade or occupation, (2) the disease is not an ordinary disease of life to which the public is equally exposed outside of the employment, and (3) there must be proof of causation, i.e., proof of a causal connection between the disease and the employment." Hansel v. Sherman Textiles, 304 N.C. 44, 52, 283 S.E.2d 101, 106 (1981); Booker v. Medical Center, supra.

We find the recent decision handed down by our Supreme Court in Walston v. Burlington Industries, 304 N.C. 670, 285 S.E.2d 822 (1982), dispositive of the issues presented in the case sub judice. In Walston the plaintiff suffered from chronic bronchitis and pulmonary emphysema. The medical evidence indicated that plaintiff's exposure to cotton dust for thirty years in his employment could "possibly" have played a contributory role in the causation of his respiratory problems. The expert physician (again, Dr. Williams) stated that plaintiff's cigarette smoking would "most likely play a part in his pulmonary disability." Walston, like the plaintiff in the case sub judice, did not have a classical history of byssinosis.

The Supreme Court concluded:

"It thus appears that substantially all of the competent medical evidence tends to show that plaintiff suffers from several ordinary diseases of life to which the general public is equally exposed, none of which have been proven to be due to causes and conditions which are characteristic of and peculiar to any particular trade, occupation or employment and none of which have been aggravated or accelerated by an occupational disease. This is fatal to plaintiff's claim. G.S. 97-53(13); Anderson v. Motor Co., 233 N.C. 372, 64 S.E.2d 265 (1951)."

Walston v. Burlington Industries, supra, at 679, 285 S.E.2d at 827.

In light of Walston, we do not believe that the medical evidence in the case here presented establishes that plaintiff has an occupational disease. It should be noted that we have also considered the decisions in Hansel v. Sherman Textiles, supra; Morrison v. Burlington Industries, 304 N.C. 1, 282 S.E.2d 458 (1981); and Wood v. Stevens & Co., 297 N.C. 636, 256 S.E.2d 692 (1979), including the dissenting opinion by Justice Exum in Morrison and his concurring opinion in Hansel. The differences of opinion support the conclusion that the problem is a difficult one.

We find the medical evidence in Walston and the case sub judice somewhat nebulous and confusing, and we believe that it would support either a finding of no causation or a finding of aggravation or acceleration of a pre-existing condition, which would justify a remand for further findings as in Hansel. But we find the evidence in Walston remarkably similar to the evidence in the case before us, and, therefore, that this case is controlled by Walston.

For the reasons stated above, the Order and Award of the Industrial Commission is

Affirmed.

ARNOLD and WHICHARD, JJ., concur.