Moore v. JP STEVENS & CO., INC. , 47 N.C. App. 744 ( 1980 )

269 S.E.2d 159 (1980) 47 N.C. App. 744

Iona S. MOORE, Employee,
v.
J. P. STEVENS & COMPANY, INC., Employer,
Liberty Mutual Insurance Company, Carrier.

No. 7910IC777.

Court of Appeals of North Carolina.

August 5, 1980.

Davis, Hassell & Hudson by Charles R. Hassell, Jr., and Robin E. Hudson, Raleigh, for plaintiff-appellant.

Maupin, Taylor & Ellis by Richard M. Lewis, Raleigh, for defendants-appellees.

PARKER, Judge.

Plaintiff bases her claim for disability benefits under the North Carolina Workers' Compensation Act upon the provisions of G.S. 97-53(13) and G.S. 97-52. G.S. 97-53 lists the diseases and conditions deemed to be "occupational diseases." Subsection (13) includes the following as an "occupational disease":

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.

Under G.S. 97-52, "disablement" of an employee resulting from an "occupational disease" described in G.S. 97-53 is to be "treated as the happening of an injury by accident within the meaning of the North Carolina Workers' Compensation Act," thus triggering the award of benefits.

In Booker v. Medical Center, 297 N.C. 458, 256 S.E.2d 189 (1979) our Supreme Court discussed at length the elements necessary to prove the existence of the compensable "occupational disease" defined by G.S. 97-53(13). The first two elements, that a 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" are expressly required by the language of the statute. The third element was stated by the court in Booker v. Medical Center, supra, as follows:

The 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. Bryan v. Church, 267 N.C. 111, 115, 147 S.E.2d 633, 635 (1966). In Duncan v. Charlotte, 234 N.C. 86, 91, 66 S.E.2d 22, 25 (1951) we held that the addition of G.S. 97-53 to the Act "in nowise relaxed the fundamental principle which requires proof of causal relation between injury and employment. And nonetheless [sic], since the adoption of the amendment, may an award for an occupational disease be sanctioned unless it be shown that the disease was incident to or the result of the particular employment in which the workman was engaged."

297 N.C. at 475, 256 S.E.2d at 200.

The rule of causation in the field of workers' compensation where the right to recover is based on injury by accident has been that the employment need not be the sole causative force to render an injury compensable. If the employee, "by reason of constitutional infirmities is predisposed to sustain injuries while engaged in labor, nevertheless the leniency and humanity of the law permit him to recover compensation if the physical aspects of the employment contribute in some reasonable degree to bring about or intensify the condition which renders him susceptible to such accident and consequent injury." Vause v. Equipment Co., 233 N.C. 88, 92, 63 S.E.2d 173, 176 (1951). A similar rule of causation has been implied in cases where compensation for occupational disease is sought; however, if a disease is produced by some extrinsic or independent agency, it may not be imputed to the occupation or the employment. Duncan v. Charlotte, 234 N.C. 86, 66 S.E.2d 22 (1951).

Plaintiff contends on this appeal that the Commission failed to make proper findings of fact regarding compensability under G.S. 97-53(13) on the grounds that no findings were made with respect to the cause of plaintiff's chronic bronchitis and pulmonary emphysema or to the issue of whether her years of occupational exposure exposed plaintiff to a greater risk of contracting pulmonary disease than the general public.

It is well established that the Industrial Commission must make specific findings of fact as to each material fact upon which the rights of the parties in a case involving a claim for compensation depend. Wood v. Stevens & Co., 297 N.C. 636, 256 S.E.2d 692 (1979); Thomason v. Cab Co., 235 N.C. 602, 70 S.E.2d 706 (1952). If the findings of fact of the Commission are insufficient to enable the court to determine the rights of the parties upon the matters in controversy, the cause must be remanded to the Commission for proper findings of fact. Young v. Whitehall Co., 229 N.C. 360, 49 S.E.2d 797 (1948); Gaines v. Swain & Son, Inc., 33 N.C.App. 575, 235 S.E.2d 856 (1977).

In the present case, were it not for the Commission's Finding of Fact No. 12, we would agree with plaintiff's contention that there were insufficient findings to support the Commission's denial of compensation, principally because a number of the other "findings" are mere recitals of the opinions of the medical experts which, in themselves, could not properly form the basis for conclusions of law as to compensability. See, Gaines v. Swain & Son, Inc., supra. Finding of Fact No. 12 recites:

Plaintiff's chronic obstructive pulmonary disease is not due to her exposure to cotton dust and lint in her employment with defendant employer.

Although cast in the form of a negative finding, it does provide a sufficient basis for the conclusion of law that plaintiff's disablement is noncompensable because, as indicated in Booker v. Medical Center, supra, a claimant's right to compensation for an occupational disease under G.S. 97-53(13) and G.S. 97-52 depends upon proper proof of causation, and the burden of proving each and every element of compensability is upon the plaintiff. Richards v. Nationwide Homes, 263 N.C. 295, 139 S.E.2d 645 (1965), Aylor v. Barnes, 242 N.C. 223, 87 S.E.2d 269 (1955). It is true that, where the Commission awards compensation for disablement due to an occupational disease encompassed by G.S. 97-53(13), the opinion and award must contain explicit findings as to the characteristics, symptoms and manifestations of the disease from which the plaintiff suffers, as well as a conclusion of law as to whether the disease falls within the statutory provision. Wood v. Stevens, supra. However, such findings should not be necessary upon the Commission's finding that the disease, whatever its manifestations and whatever its symptoms, was not due to causes or conditions characteristic of the particular employment in which the employee was engaged. The denial of compensation may be predicated upon the failure of the claimant to prove any one of the elements of compensability.

Having determined that Finding of Fact No. 12 is sufficient to support the Commission's denial of plaintiff's claim, we consider whether that finding is supported by competent evidence in the record. If so, it is conclusive and binding upon this Court. Cole v. Guilford County, 259 N.C. 724, 131 S.E.2d 308 (1963); Vause v. Equipment Co., supra. Dr. William Z. Wood, Jr., the pulmonary disease specialist and member of the Industrial Commission's Textile Occupational Disease Panel, testified at length concerning plaintiff's medical condition. Although he stated that plaintiff had been employed in an area of cotton manufacturing in which the incidence of employment-related chronic lung disease is highest, he also testified that plaintiff did not exhibit the usual symptomatic history of symptoms onset and progression classical for this problem:

By that I mean that the usual and classical onset is one of increasing symptoms in the onset of symptoms on the first day returning to work after a period away from the mill. The symptoms usually described is [sic] a sensation of tightness and difficulty breathing which may be associated with cough. This seems to improve with continued exposure so by the second, third, fourth day the symptoms are much less or may be completely absent. That's generally referred to as Grade one-half. And then, as the continued progression of the symptoms occur the symptoms may be present on more than one day after returning to work. That is, I think, usually given the Grade one to the point it is present throughout the work week, with evidence of lung dysfunctions, Grade two and then, failure to improve even after being away from work is referred to as Grade three, with symptoms of tightness, shortness of breath, often times accompanied by cough and sputum production. I am saying that Mrs. Moore did not give that progression of symptoms, that is correct. Her major complaint has been that of cough and shortness of breath. There has been some sputum production that has fluctuated in intervals throughout some forty years—thirty or forty years of her history. The major symptom being shortness of breath. She also indicated frequent episodes of what she called bronchitis, that is the story she gave to me. Yes, sir. She also told me that these episodes came on in cooler and damper periods of time and that she could not tolerate air conditioners or cool or damp weather. That indicated to me that she has airways that are sensitive to temperature and climatic change. This is frequently seen in people who have a variety of lung diseases.

* * * * * *

She did not indicate that these episodes were brought on after exposure to cotton dust. In fact, an air conditioner or the cooler, damper weather that brought on these symptoms could be classified as an irritant.

Further, in explaining his response to a hypothetical posed by plaintiff's counsel in which he stated that, in his opinion, plaintiff's respiratory disease "could or might have been caused by her occupational exposure," Dr. Wood stated that that opinion referred to "possibility" rather than "probability." In light of Dr. Wood's testimony, the Commission was justified in finding that plaintiff's chronic pulmonary disease "is not due to her exposure to cotton dust and lint in her employment with defendant employer."

Plaintiff has also excepted and made the basis of an assignment of error on the grounds of the insufficiency of the evidence to support it a portion of Finding of Fact No. 5 which recites: "Beginning in March of 1966 [plaintiff] complained to [her family practitioner] of upper respiratory problems and these problems or problems [sic] which he diagnosed as bronchial problems continued more or less constantly to the present time. This happened more often during the fall and winter months and Dr. Boone connected it with a viral infection or some other irritant or allergic reaction to cold weather." Although this "finding" is certainly not a clear statement of fact, there is some evidence to support it. Dr. Boone testified:

I mentioned several times that she had bronchitis. I think it seemed to be more severe at certain times of the year, say in the Fall. Looking back, she had one spell first in December, the hemoptysis occurred in December. She had a spell here in October, another in October. She had a year-round problem but—here is one in June. So she had it at other times. One in November. I think it is more common in everyone, people with normal lungs as well as people with lung disease, in the fall and winter months, to have bronchitis flareups. It is sort of to be expected. I think the weather has something to do with it. It would not be suggestive of an allergy. No, more like an infection, the type of thing she had.

Thus, the record supports the finding that plaintiff's respiratory problems seemed to worsen in colder weather. Although there are inaccuracies in the Commission's reference to the infection as being "viral" and in the reference to an "allergic" reaction to cold weather, these inaccuracies do not detract from the main thrust of Finding of Fact No. 5, i. e. that plaintiff's pulmonary problems were worse in the fall and winter months and that the cold weather adversely affected those problems.

Finally, plaintiff challenges the Commission's inaccurate statement of the stipulation of the parties regarding plaintiff's work history. The parties stipulated that she had worked from 1925-1935 in the spinning room of defendant's mill, but the findings of fact reflect only that she worked from 1941-1976. Although such an omission is clearly erroneous, it does not require a rehearing of this case. Plaintiff's claim was denied on the ground of her failure to prove causation. The testimony of the expert witnesses, Dr. Boone and Dr. Wood, upon which the Commission based its finding that plaintiff's chronic obstructive pulmonary disease is not due to occupational exposure, discloses that their opinions were based upon their knowledge of plaintiff's full employment history, including the ten-year period inadvertently omitted from the Commission's finding.

Thus, the Commission's crucial finding is supported by sufficient evidence to justify the denial of compensation in the present case. The Opinion and Award of the Full Commission is

Affirmed.

HARRY C. MARTIN and HILL, JJ., concur.