Carroll v. Burlington Industries , 81 N.C. App. 384 ( 1986 )

344 S.E.2d 287 (1986)

Opal L. CARROLL
v.
BURLINGTON INDUSTRIES and Liberty Mutual Insurance Company and American Motorists Insurance Company.

No. 8510IC1346.

Court of Appeals of North Carolina.

June 17, 1986.

Frederick R. Stann, Gastonia, for plaintiff-appellant.

Hedrick, Eatman, Gardner & Kincheloe by J.A. Gardner, III, Charlotte, for defendants-appellees Burlington Industries and American Motorists Insurance Company.

Golding, Crews, Meekins & Gordon by Michael K. Gordon, Charlotte, for defendants-appellees Burlington Industries and Liberty Mut. Ins. Co.

EAGLES, Judge.

On appeal from a final order of the Industrial Commission, this Court has only a limited role. Where the Commission acts under a misapprehension of law in its fact finding function, we may remand so that the facts may be reconsidered in their true legal light. Clark v. Burlington Industries, Inc., 78 N.C.App. 695, 338 S.E.2d 553, cert. denied, 316 N.C. 375, 342 S.E.2d 892 (1986). We also may remand for evidentiary or other procedural error clearly prejudicial to one of the parties. E.g. Citizens Bank & Trust Co. v. Reid Motor Co., 216 N.C. 432, 5 S.E.2d 318 (1939) (error to rely on testimony where witness refused to submit to cross examination.)

With respect to considering the evidence, however, the Commission has sole authority to make findings of fact. Yelverton v. Kemp Furniture Co., 51 N.C.App. 675, 277 S.E.2d 441 (1981). This Court does not weigh the evidence. Porterfield v. RPC Corp., 47 N.C.App. 140, 266 S.E.2d 760 (1980). We determine only whether there is any evidence of substance in the record to support the Commission's findings; if there is, we are bound by the findings, even though the record may contain evidence supporting findings contra. Id. There must be a complete lack of competent supporting evidence to justify disregarding the Commission's findings of fact. See Mayo v. City of Washington, 51 N.C.App. 402, 276 S.E.2d 747 (1981). Where medical testimony is conflicting, the Commission decides which testimony to give the greater weight. See Register v. Administrative Office of the Courts, 70 N.C.App. 763, 321 S.E.2d 24 (1984); Caulder v. Waverly Mills, 67 N.C.App. 739, 314 S.E.2d 4 (1984), aff'd, 314 N.C. 70, 331 S.E.2d 646 (1985). The Commission is under no duty to view the evidence in the light most favorable to the claimant. Cauble v. Macke Co., 78 N.C.App. 793, 338 S.E.2d 320 (1986). Only this Court applies that standard, and then only in the course of reviewing an award allowing, not denying, compensation. Id.; see Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 265 S.E.2d 389 (1980).

In our limited role as a reviewing court we must conclude that the Commission's findings are supported by some competent evidence, and hence are binding on this Court. Dr. Harris testified positively that plaintiff suffered from asthma with only a possibility of byssinosis, and that she had suffered no permanent impairment consistent with byssinosis. Dr. Harris had examined plaintiff on three occasions both before and after the end of her employment. His testimony sufficed to support the result reached by Commission. In Thompson v. Burlington Industries, 59 N.C.App. 539, 297 S.E.2d 122 (1982), cert. denied, 307 N.C. 582, 299 S.E.2d 650 (1983), we affirmed a similar order. Plaintiff had many symptoms typically associated with byssinosis, including shortness of breath, fatigue, and sputum production, and had worked in very dusty environments for at least 11 years. The Commission found that she had asthma, exacerbated by exposure to dust, but no permanent functional impairment. The Commission denied compensation and we affirmed: "Since plaintiff suffered from asthma, an ordinary disease of life, and did not retain any permanent functional pulmonary impairment after she quit her job, she did not have an occupational disease." 59 N.C.App. at 542, 297 S.E.2d at 124.

Accordingly we must accept the Commission's findings of fact. We are bound to do so though we recognize the policy inherent in the Workers' Compensation Act favoring liberal treatment of employee claims and disfavoring denying claims on technical grounds.

Plaintiff raises several procedural assignments of error. She argues that the Commission erred in admitting into evidence the pulmonary function tests. Plaintiff's own Exhibit 2, introduced by her, contained the results of the same tests to which she later objected. A party necessarily waives the benefit of an objection when it introduces evidence of the same import in its own behalf. State v. Tysor, 307 N.C. 679, 300 S.E.2d 366 (1983). The fact that defendants later introduced somewhat more detailed evidence of the tests is not of importance; the key portions of the evidence, the results, had already come in. No prejudice occurred. See State v. Jones, 287 N.C. 84, 214 S.E.2d 24 (1975).

Plaintiff also argues that the Commission erroneously "discounted" Dr. Owens' favorable testimony by failing to make detailed findings relative to it. The Commission's majority expressly considered that Deputy Commissioner Sellers had had conflicting medical evidence before her. With the entire record before it, the Commission concluded that she had correctly weighed the evidence. This did not amount to "discounting" of Dr. Owens' evidence. The Commission had authority to, and did, give Dr. Harris' testimony greater weight. Failure to make findings summarizing Dr. Owens' testimony was not prejudicial.

Plaintiff also argues that the Commission erred in concluding that she had failed to carry her burden of proof that she suffered an occupational disease. It is well established that the claimant generally carries the burden of proof of entitlement to compensation in proceedings before the Commission. See e.g. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E.2d 682 (1982). While plaintiff did present a prima facie case through the testimony of Dr. Owens, the Commission chose to give the conflicting testimony of Dr. Harris greater weight. This was within its power. The Commission's conclusion that plaintiff did not carry her burden simply is a logical extension of this weighing of the evidence, and upon the factual findings as made does not constitute error.

The findings of the Commission were supported by some competent evidence and its conclusion that compensation must be denied follows logically from those findings. Plaintiff has failed to show any procedural error prejudicially affecting her. The opinion and award of the Commission is therefore

Affirmed.

COZORT, J., concurs.

WELLS, J., dissents.

WELLS, Judge, dissenting.

It seems clear to me that in its findings of fact the Commission has not properly resolved the issue of plaintiff's disability raised by the medical evidence. While Dr. Harris did testify that plaintiff had symptoms of asthma which were treatable, he also testified that asthma and byssinosis were practically indistinguishable and that plaintiff probably had byssinosis. While much of Dr. Harris' testimony was equivocal, he made one telling unequivocal statement totally ignored by the Commission: "In my opinion, Ms. Carroll is not employable in the cotton textile industry, which was her previous employment. I strongly urge her not to seek such employment."

Dr. Owens' testimony clearly established that plaintiff suffered from work-related chronic obstructive lung disease which rendered her disabled to work. This evidence was altogether ignored.

The Commission's conclusion that plaintiff failed to carry her burden of proof that her pulmonary condition is due to her contracting an occupational disease is simply not supported by the evidence and the Commission has obviously boot-strapped that conclusion by failing to properly find the facts.

In my opinion, this case should be remanded for appropriate findings of fact on the question of whether plaintiff has occupationally related disabling chronic obstructive lung disease.