Hansel v. Sherman Textiles , 49 N.C. App. 1 ( 1980 )

ERWIN, Judge.

Defendants raise assignments of error to the findings of fact by the full Commission. For the reasons which follow, we conclude that the Commission’s findings are not supported by sufficient competent evidence to support the award and, therefore, vacate the award of the full Commission.

For purposes of our review, the pertinent facts as found by the deputy commissioner and adopted by the Commission follow:

“FINDINGS OF FACT

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In 1967 plaintiff began working for defendant-employer as a weaver. Except for a six month’s absence in 1971, plaintiff worked continuously until May 5, 1977. The air was very dusty from the cotton that was processed.

Plaintiff in about 1972, began to notice that when she began the work week on Sunday night, she would have chest tightness and some coughing after being there two or three hours. In about 1974 or 1975, plaintiff felt that way all the time at work with no particular time being worse.

EXCEPTION NO. 1

3. Because of shortness of breath and other respiratory problems and some blackout spells, plaintiff moved to the cloth room during the last six months of her employment by defendant. This took her out of dust but her respiratory problems had reached the irreversible stage, and she could hardly exert herself. She quit on May 5, 1977 because of respiratory problems.

EXCEPTION NO. 2

4. Plaintiff has both asthma and byssinosis which are causing her respiratory impairment. Her impairment is severe and irreversible.

EXCEPTION NO. 3

5. Plaintiff has byssinosis as a result of her exposure to cotton dust in her employment with defendant-employer and this is partly responsible for her disability.

EXCEPTION NO. 4

6. Plaintiff has not worked since May 5, 1977.”

On the basis of the foregoing findings of fact, the deputy commissioner made the following conclusions of law which were adopted by the Commission:

“1. Plaintiff has contracted the disease byssinosis as a result of exposure to cotton dust in her employment with defendant-employer. This disease is compensable under the provisions of G.S. 97-53 (13).

EXCEPTION NO. 5

2. Defendants owe plaintiff compensation for permanent, partial disability from May 5, 1977 for her period of disability not to exceed 300 weeks. G.S. 97-30.

EXCEPTION NO. 6.”

It is well settled in this jurisdiction that the findings of fact of the Industrial Commission are conclusive on appeal when they are supported by any competent evidence, even though there is evidence that would support a contrary finding. Willis v. Drapery Plant, 29 N.C. App. 386, 224 S.E. 2d 287 (1976); Russell v. Yarns, Inc., 18 N.C. App. 249, 196 S.E. 2d 571 (1973); 8 Strong’s N.C. Index 3d, Master and Servant, § 96. Therefore, while a review in this Court of actions taken by the full Commission does not contemplate a retrial of the facts of the case here, we do have the duty of reviewing questions of law and of legal inference as decided by the full Commission. For this purpose, questions of law include: “(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. 211, 216, 232 S.E. 2d 449, 452 (1977).

As noted above, the deputy commissioner concluded, inter alia, the “[pjlaintiff has contracted the disease byssinosis as a result of exposure to cotton dust in her employment with defendant-employer” and that “[t]his disease is compensable under the provisions of G.S. 97-53 (13).” The statutory scheme for occupational diseases set forth in G.S. 97-53 provides in part as follows:

“§ 97-53. Occupational diseases enumerated; when due to exposure to chemicals. — The following diseases and conditions only shall be deemed to be occupational diseases within the meaning of this Article:

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(13) Any disease, other than hearing loss covered in another subdivision of this section, which is proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment.”

The clear import of this language is that in order for an illness to be compensable under the Act, it must be fairly traced to the employment as a contributing proximate cause. That there must be established a causal relation between the disabling condition and the performance of some duty of the employment is well settled in the law of this State. In Booker v. Medical Center, 297 N.C. 458, 256 S.E. 2d 189 (1979), our Supreme Court expressly held that proof of a causal connection between the disease and the employee’s occupation is an essential element in proving the existence of a compensable “occupational disease” within the meaning of G.S. 97-53. There, the Court noted that in addition to the statutory limitations that the disease be “characteristic” of a trade or occupation and that it not be an ordinary disease of life to which the general public is equally exposed outside of the employment, “[t]he final requirement in establishing a compensable claim under subsection (13) is proof of causation. It is this limitation which protects our Workmen’s Compensation Act from being converted into a general health and insurance benefit act.” 297 N.C. at 475, 256 S.E. 2d at 200. As a guide in determining what evidence would suffice for purposes of proving causation, the Court went on to state as follows:

“Among the circumstances which may be considered are the following: (1) the extent of exposure to the disease or disease-causing agents during employment, (2) the extent of exposure outside employment, and (3) absence of the disease prior to the work-related exposure as shown by the employee’s medical history.” (Emphasis added.)

297 N.C. at 476, 256 S.E. 2d at 200.

It is apparent upon review of the evidence in the case sub judice that the Commission’s conclusion that plaintiff had contracted byssinosis during her employment with defendant is based in large part upon the expert medical testimony of Dr. Harris. We are of the view that such evidence, when considered in connection with the other evidence adduced at the hearing, fails to establish the requisite causal relation between plaintiff’s disability and her employment and does not support the Commission’s findings.

A diagnosis of byssinosis represents a medical conclusion that one’s respiratory problems stem from prolonged exposure to high levels of cotton dust. For purposes of our review, the testimony of Dr. Harris is particularly noteworthy because of the conspicuous absence of any such conclusion. Indeed, the doctor admitted that he was unable to repose much confidence in a diagnosis of byssinosis in Mrs. Hansel’s case, because he had no information about the extent of her exposure to cotton dust and because of the presence of the asthma and chronic bronchitis conditions, which could account for the symptoms which plaintiff experienced. In response to a hypothetical question propounded by plaintiff as to whether her condition could or might be byssinosis, Dr. Harris gave the following response:

“Cotton, you said. If she did not work in cotton, I would not have any diagnosis of byssinosis. In her particular case, I don’t really have any reliable information as to what the particular fiber was and the extent of exposure to various fibers and exposure, and to what was in the weave room. It is more difficult to answer that question.”

When plaintiff repeated her hypothetical question asking the witness to assume the additional fact that plaintiff had been exposed to a significant amount of cotton dust, the witness responded, “There is a possibility that she has byssinosis and she certainly could have.” Dr. Harris went on to explain, however:

“I have difficulty in this patient for several reasons, to answer so specific a question. One of the difficulties, Pm not really aware of how much cotton dust exposure this lady was involved. Your hypothetical question assumed considerable amounts of cotton dust exposure ... If there was a lot of other fibers in the cotton in that department, there would be less exposure.”

On cross-examination, Dr. Harris noted: “Because asthmatics react to all manners of dust. I said the symptoms of coughing, tightness of the chest could result or could be caused by the asthmatic condition rather than the breathing of dust.” The above excerpts are representative of the tenor of the entire testimony offered by Dr. Harris.

Our review of the record reveals that the absence of specific findings with respect to the amount of cotton dust ordinarily present in the area where plaintiff worked leads us to conclude that the Commission’s finding that the plaintiff contracted bys-sinosis as a result of her exposure to cotton dust in her employment with defendant is unsupported by sufficient competent evidence.

The award of the full Commission is

Vacated.

Judge Hedrick concurs. Judge Wells dissents.